CONSTITUTIONAL LAW REVIEW Session 15 CONSTITUTIONAL COMMISSIONS Independent Constitutional Commissions The independent constitutional commissions are the:

: 1. Civil Service Commission 2. Commission on Elections 3. Commission on Audit Q: Why have these government agencies been made constitutional commissions? A: The CSC, COA and COMELEC perform key functions in the government. In order to protect their integrity, they have been made constitutional bodies. (Bernas, Primer) Safeguards Insuring the Independence of the Commissions (Cruz, PPL) 1. They are constitutionally created; they may not be abolished by statute. (Art. IX-A, 1) 2. Each is expressly described as independent. (Art. IX-A, 1) 3. Each is conferred certain powers and functions which cannot be reduced by statute. (Art. IX-B, C and D) 4. The Chairmen and members cannot be removed except by impeachment. (Art. XI, 2) 5. The Chairmen and members are given fairly long term of office of 7 years. (Art. IX-B, C and 1(2)) 6. The terms of office of the chairmen and members of all the commissioners are staggered in such a way as to lessen the opportunity for appointment of the majority of the body by the same President. (Art. IX-B, C and 1(2)) 7. The chairmen and members may not be reappointed or appointed in an acting capacity.535 (Art. IX-B, C and 1(2)) Safeguards Insuring the Independence of the Commissions (Cruz, PPL) 8. The salaries of the chairman and members are relatively high and may not be decreased during continuance in office. (Art. IX-A, 3; Art. XVIII, 17 ) 9. The Commissions enjoy fiscal autonomy. (Art. IX-A, 5) 10. Each Commission may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights. (Art. IX-A, 4) 11. The chairmen and members are subject to certain disqualifications calculated to strengthen their integrity. (Art. IX-A, 4) 12. The Commissions may appoint their own officials and employees in accordance with Civil Service Law. (Art. IX-A, 4) Q: There are independent offices specifically authorized by the Constitution to appoint their officials. Does this imply that their appointment will not be subject to Civil Service Law and Rules? A: No. if this were the case, these independent bodies would arrogate upon themselves a power that properly belongs to the Civil Service Commission. Had the intention of the framers of the Constitution been to isolate and grant full independence to Constitutional Commission in the matter of appointments, it would have been so provided. But that is not the case. And since all matters pertaining to appointments are within the realm of expertise of the CSC, all laws, rules and regulations it issues on appointments must be complied with. (Ombudsman v. CSC, February 16, 2005) Inhibitions/Disqualifications (Section 2) Members of constitutional commissions: 1. Shall not, during tenure, hold any other office or employment; 2. Shall not engage in the practice of any profession; 3. Shall not engage in the active management or control of any business which in any way may be affected by the functions of his office. 4. Shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, Consti Review (Atty. Cubero) - - session 15 1

including government owned or controlled corporation or their subsidiaries. Purpose of Disqualifications. To compel the chairmen and members of the Constitutional Commissions to devote their full attention to the discharge of their duties and, as well, to remove from them any temptation to take advantage of their official positions for selfish purposes. (Cruz, PPL) Practice of profession for the purpose of Section 3, does not include teaching. Thus, a lawyer who teaches law does not thereby, for the purpose of Section 2, violate the prohibition of practice of a profession. (I RECORD 544-555, 558-559) Prohibition of active management does not prohibit a Commissioner from owning business but it prohibits him from being the managing officer or a member of the governing board of a business, which in any way may be affected by the functions of his office, a qualifying phrase which does not apply to the prohibition of a practice of a profession. (I RECORD 552-559) Rotational Scheme of Appointments (Bar Question) (Section 1(2) of Article IX-B, C and D.) The first appointees shall serve 7, 5 and 3 years respectively. Reason for Staggering of Terms: 1. To lessen the opportunity of the President to appoint a majority of the body during his term; 2. To ensure continuance of the body, which always retains 2/3 of its membership. 3. The system is expected to stabilize the policies of the body as maintained by the remaining members.(Cruz, PPL) Gaminde v. COA, December 13, 2000. It was held that in order to preserve the periodic succession mandated by the Constitution, the rotational plan requires two conditions: 1. The terms of the first commissioners should start on a common date (Feb 2, 1987); and 2. Any vacancy due to death, resignation or disability before the expiration of the term should only be filled for the unexpired balance of the term. Proceedings 1. Decision There is no decision until the draft is signed and promulgated. Hence, if a commissioner signs a decision but retires before the decision is promulgated, his vote does not count even if it was he who penned the decision. (Ambil v. COMELEC, October 25, 2005) 2. Who makes the decision The decisions are made by the body and not by individual members. No individual member may make a decision for the Commission. Much less may cases be decided by subordinates of the Commission. Not even the Commissions legal counsel may make a decision fro the Commission. 3. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision. (Article IX-A Section 7) The provision is clear that what is required is the majority vote of all the members, not only of those who participated in the deliberations and voted thereon. (Estrella v. COMELEC, May 27, 2004) (Article IX-B, Section 2 allows the COMELEC to make decisions in divisions) In the COMELEC, there is full Commission to form en banc if there are four Commissioners left. Q: Two commissioners who participated in the consideration of the case retired before the promulgation of the COMELEC decision but after they cast their vote. Four commissioners were left. Should the votes of the retirees be counted? A: No. Their vote should be automatically withdrawn. There is no decision until it is promulgated. Q: Is the 3-1 vote of the remaining commissioners a valid decision en banc. A: The vote of 3 is a majority vote of all. (Dumayas v. COMELEC, April 20, 2001) Consti Review (Atty. Cubero) - - session 15 2

Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days fro the receipt thereof. (Article IX-A Section 7) The certiorari referred to is a special civil action for certiorari under Rule 65. (Dario v. Mison) The certiorari jurisdiction of the Supreme Court is limited to decision rendered in actions or proceedings taken cognizance of by the Commissions in the exercise of their adjudicatory or quasi-judicial powers. (It does not refer to purely executive powers such as those which relate to the COMELECs appointing power. Hence, questions arising from the award of a contract for the construction of voting booths can be brought before a trial court. Similarly, actions taken by the COMELEC as prosecutor come under the jurisdiction of the trial court which has acquired jurisdiction over the criminal case.) Q: How are decisions of the commissions reviewed by the SC? Commission on Audit: Judgments or final orders of the Commission on Audit may be brought by an aggrieved party to the Supreme Court on certiorari under Rule 65. Only when COA acts without or excess in jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, may the SC entertain a petition for certiorari under Rule 65. Civil Service Commission: In the case of decisions of the CSC, Administrative Circular 1-95538 which took effect on June 1, 1995, provides that final resolutions of the CSC shall be appealable by certiorari to the CA within 15 days from receipt of a copy thereof. From the decision of the CA, the party adversely affected thereby shall file a petition for review on certiorari under Rule 45 of the Rules of Court. Q: When certiorari to the Supreme Court is chosen, what is required? A: Rule 65, Section 1 says that certiorari may be resorted to when there is no other plain or speedy and adequate remedy. But reconsideration is a speedy and adequate remedy. Hence, a case may be brought to the Supreme Court only after reconsideration. (As a consequence, in the case of decisions of the COMELEC, only decision en banc may be brought to the Court by certiorari since Article IX-C, 3 says that motions for reconsideration of decisions shall be decided by the Commission en banc. (Reyes v. RTC, 1995) Enforcement of Decisions The final decisions of the Civil Service Commission are enforceable by a writ of execution that the Civil Service Commission may itself issue. (Vital-Gozon v. CA, 212 SCRA 235) Fiscal Autonomy Article IX-A, Section 5 gives the constitutional commissions fiscal autonomy, that is, their approved annual appropriations shall be automatically and regularly released and shall not be subject to preaudit. (Bernas, Commentary) In Civil Service Commission v. DBM, July 22, 2005, the SC said that the no report, no release policy may not be validly enforced against offices vested with fiscal autonomy, without violating Section 5 of Article IX-A of the Constitution. The automatic release of approved annual appropriations to petitioner, a constitutional commission vested with fiscal autonomy should thus be construed to mean that no condition to fund releases to it may be imposed. xxx Note: The Supreme Court said that the Commission on Human Rights, unlike the three constitutional commissions, does not enjoy fiscal autonomy. (CHR Employees Association v. CHR, November 25, 2004). Power to Promulgate Rules of Procedure Article IX-A, Section 6 gives the constitutional commissions authority, sitting en, to promulgate rules Consti Review (Atty. Cubero) - - session 15 3

of procedure. Q: In case of conflict between a rule of procedure promulgated by a Commission and a Rule of Court, which prevails? A: In case of conflict between a rule of procedure promulgated by a Commission and a Rule of Court, the rule of the Commission should prevail if the proceeding is before the Commission; but if the proceeding is before a court, the Rules of Court prevail. (Aruelo Jr. v. CA, October 20, 1993) Q: May the Supreme Court disapprove internal rules promulgated by the Commissions? A: The Supreme Court has no power to disapprove Commission rules except through the exercise of the power of judicial review when such Commission rules violate the Constitution. (Bernas, Primer) Q: May Congress assume power to review rules promulgated by the Commission? A: No. (By vesting itself with the powers to approve, review, amend, and revise the Implementing Rules for the Overseas Absentee Voting Act of 2003, Congress acted beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC.) (Macalintal v. COMELEC, July 10, 2003) If the rules promulgated by a Commission are inconsistent with a statute, the statute prevails. (Antonio v. COMELEC, September 22, 1999) CIVIL SERVICE COMMISSION Composition of CSC Civil Service Commission is composed of a Chairman and two Commissioners. (Article IX-B, Section 1(1)) Functions of CSC 1. The CSC shall administer the civil service. (Art. IX-B, 1(1)) 2. The CSC as the personnel agency of the government shall establish a career service; 3. It shall adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. 4. It shall strengthen the merit and rewards system; 5. It shall integrate all human resources development programs for all levels and ranks; 6. It shall institutionalize a management climate conducive to public accountability. 7. It shall submit to the President and the Congress an annual report on its personnel programs. (Article IX-B, Section 3) Power to Grant Civil Service Eligibility. In the exercise of its powers to implement RA 6850 (granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service), the CSC enjoys wide latitude of discretion and may not be compelled by mandamus to issue eligibility. (Torregoza v. CSC) But the CSC cannot validly abolish the Career Executive Service Board (CESB); because the CESB was created by law, it can only be abolished by the Legislature (Eugenio v. CSC, 1995) Power to hear and decide administrative cases. Under the Administrative Code of 1987, the CSC has the power to hear and decide administrative cases instituted before it directly or on appeal, including contested appointments. (Nachura, Outline Reviewer in Political Law) Jurisdiction on Personnel actions. It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure, that decisions of lower officials (in cases involving personnel actions) be appealed to the agency head, then to the CSC. The RTC does not have jurisdiction over such personal actions. (Olanda v. Bugayong, 2003) Authority to Recall Appointments. The Omnibus Rules implementing the Administrative Code provides, among others, that Consti Review (Atty. Cubero) - - session 15 4

notwithstanding the initial approval of an appointment, the same may be recalled for violation of other existing Civil service laws, rules and regulations. Thus, in Debulgado v. CSC, it was held that the power of the CSC includes the authority to recall appointment initially approved in disregard of applicable provisions of the Civil Service law and regulations. (Nachura, ORPL) Original jurisdiction to hear and decide a complaint for cheating. The Commission has original jurisdiction and decide a complaint for cheating in the Civil Service examinations committed by government employees. The fact that the complaint was filed by the CSC itself does not mean that it cannot be an impartial judge. (Cruz v. CSC. 2001) Q: May the CSC revoke a certificate of eligibility? A: Yes. As central personnel agency of the government, the CSC may revoke a certificate of eligibility motu propio. The power to issue a certificate of eligibility carries with it the power to revoke one that has been given. Whether hearing is required for revocation depends on circumstances of a case. (Thus, where the case simply involves the rechecking of examination papers and nothing more than a re-evaluation of documents already in the records of the CSC according to a standard answer key previously set by it, notice and hearing is not required. Instead, what [would apply in such a case is] the rule of res ipsa loquitor. (Lazo v. CSC, 1994) Nature of the Powers of CSC The Commission is an administrative agency, nothing more. As such, it can only perform powers proper to an administrative agency. It can perform executive powers, quasi-judicial powers and quasi-legislative or rule-making powers. (Bernas, Primer) Qualifications of CSC Commissioners 1. Natural-born citizens of the Philippines; 2. At the time of their appointment, at least thirtyfive years of age; 3. With proven capacity for public administration; 4. Must not have been candidates for any elective position in the elections immediately preceding their appointment. (Article IX-B, Section 1(1)) Appointment of CSC Commissioners The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. (Article IX-B, Section 1(2)) Scope of Civil Service System The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. (Article IX-B, Section 2(1)) Test for determining whether a government owned or controlled corporation is subject to the Civil Service Law: The test is the manner of its creation. Corporations created by special charter are subject to the Civil Service, whereas corporations incorporated under the Corporation Law are not. (PNOC v. Leogardo, 1989) Corporations with original charters. They are those created by special law, like GSIS, SSS, Local Water Districts and PAGCOR. (Corporations which are subsidiaries of these chartered agencies like the Manila Hotel and PAL, are not within the coverage of the Civil Service. (Cruz, PPL) Note: The moment, that a corporation ceases to be government controlled, for instance, if it is privatized, it ceases to fall under the Civil Service. Consti Review (Atty. Cubero) - - session 15 5

Q: Does the Department of Labor have a role over civil service members? A: Yes. Entities under the civil service system are not completely beyond the reach of Department of Labor or labor laws. (When a government entity that is under the Civil Service enters into a contract, e.g., with a security agency or janitorial agency, it becomes an indirect employer of the security guards or the janitors. In such a situation, under the Labor Code, the liabilities for wages are joint and solidary with the contractor. The law on wages on in the Labor Code specifically provides that employer includes any person acting directly or indirectly in the interest of an employer in relation to employees. (Philippine Fisheries Development Authority v. NLRC & Odin Security Agency, 1992) Classification of Positions (under Section 2(2) for purpose of determining the manner of testing merit and fitness) 1. Competitive Positions 2. Non-competitive Positions Competitive Positions As a general rule, positions in all branches of government belong to the competitive service. (Samson v. CA) Facts: Petitioner, the Mayor of Caloocan City, terminated the services of respondent, the Assistant Secretary to the Mayor, on the ground of loss of confidence. Respondent protested on the ground that his position belonged to the classified service. Petitioner argued that under the Civil Service Law, the secretaries of city mayors occupied primarily confidential position and respondent was a secretary to the mayor. Held: The termination of respondent is void. The position of Assistant Secretary to the Mayor should be considered as belonging to the competitive service. The position of Secretary of the Mayor and Assistant Secretary are two distinct positions. The latter is of a lower rank and is not primarily confidential. An assistant secretary merely helps in a subordinate capacity the person clothed with the duties of a secretary. (Samson v. CA, 145 SCRA 654 Facts: Respondent was appointed as member of internal security staff of the PAGCOR. He was terminated allegedly for loss of confidence, because he allegedly engaged in proxy betting. When respondent sued for reinstatement, the PAGCOR argued that under PD 1869, all its employees are classified as confidential. Held: The classification in PD 1869 can be no more than an initial determination and is not conclusive. It is the nature of the position which finally determines whether a position is primarily confidential. Respondent did not enjoy close intimacy with the appointing authority which would make him a confidential employee. As member of the internal staff, he was tasked with preventing irregularities among the employees and customers, reporting unusual incidents and infractions, coordinating with security department during chips inventory, refills, yields and card shuffling, and escorting the delivery of table capital boxes, refills and shoe boxes. (CSC v. Salas, 274 SCRA 414) Non-Competitive Positions 1. Policy Determining 2. Primarily Confidential 3. Highly Technical Policy-Determining Position One charged with laying down of principal or fundamental guidelines or rules, such as that of a head of a department. (Cruz, PPL) Primarily Confidential Position One denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom Consti Review (Atty. Cubero) - - session 15 6

from misgivings or betrayals of personal trust on confidential matters of state (De los Santos v. Mallare, 87 Phil 289). Proximity Rule: The occupant of a particular position can be considered a confidential employee if the 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 of embarrassment or misgivings of possible betrayals of personal trust and confidential matters of stare. Delos Santos v. Mallare)(Where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant, and therefore, cannot be classified as primarily confidential) The following are held to be primarily confidential: 1. Chief legal counsel of PNB. (Besa v. PNB) 2. City legal officer (Cadiente v. Santos) 3. Provincial attorney(Grino v. CSC) (However, positions of the legal staff are not confidential) 4. Security guards of a vice-mayor (Borres v. CA) Primarily Confidential Position Facts: Upon recommendation of the vicemayor, the mayor appointed respondents as security guards of the vice mayor. The mayor and vice mayor lost in the election. As the new mayor, petitioner terminated the services of respondents for lack of confidence. Respondents sued for reinstatement on the ground that their removal was illegal. Held: The positions of respondents [security guards of the vice mayor] are primarily confidential, as they involve giving protection to the vice mayor. The relationship between the vice mayor and his security depend on the highest of trust and confidence. Hence, the tenure of respondents ended upon loss of confidence in them. (Borres v. CA, 153 SCRA 120) Highly Technical Position A highly technical position requires the appointee thereto to possess technical skill or training in the supreme or superior degree. The position of a city engineer may be technical but not highly so because he is not required or supposed to posses a supreme or superior degree of technical skill. The duties of a city engineer are eminently administrative in character and can be discharged even by nontechnical men. (Delos Santos v. Mallare) In Montecillo v. CSC, 2001, the SC said that under Administrative Code of 1987, the CSC is expressly empowered to declare positions in the CSC as primarily confidential. This signifies that the enumeration in the Civil Service decree, which defines the non-career service, is not an exclusive list. The Commission can supplement this enumeration, as it did when it issued Memorandum Circular 22, s. 1991, specifying positions in the Civil Service which are considered primarily confidential and, therefore, their occupants hold tenure coterminous with the officials they serve. Q: Who determines whether a position is policy-determining, primarily confidential or highly technical?. A: It is a judicial question. It is the nature of the position which finally determines whether a position is primarily confidential, policy-determining or highly technical. The initial classification may be made by the authority creating the office. Executive pronouncements as to the nature of the office can be no more than initial determination of the nature of the office. (Bernas, Commentary) [The competitive and non-competitive positions roughly correspond to the classification in the Civil Service Code now embodied in the Revised Administrative Code of 1987: (1) Career Service and (2) Non-Career Service.] ~Bernas, Commentary Classes of Service (under the Revised Administrative Code) 1. Career Service 2. Non-Career Service Consti Review (Atty. Cubero) - - session 15 7

Career Service (Bar Question) The career service is characterized by: 1. Entrance based on the merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; 2. Opportunity for advancement to higher career positions; 3. Security of Tenure The career service includes: 1. Open Career positions for appointment to which prior qualification in an appropriate examination is required. 2. Closed Career positions which are scientific or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; 3. Positions in the Career Executive Service, namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Chief Executive Service Board, all of whom are appointed by the President; 4. Career officers, other that those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the DFA. 5. Commissioned officers and enlisted men of the Armed Forces, which shall maintain a separate merit system; 6. Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and 7. Permanent laborers, whether skilled, semiskilled, or unskilled. (Cruz, PPL) Career Service Executives (CES). On May 31, 1994, the CSC issued Memorandum Circular No. 21 identifying the positions covered by the CES. The Memorandum provides that, incumbents of positions which are declared to be CES positions for the first time pursuant to this Resolution who hold permanent appointments thereto shall remain under permanent status in their respective positions. However, upon promotion or transfer to other CES positions, these incumbents shall be under temporary status in said other CES positions until they qualify. (Nachura, ORPL) CES and Security of Tenure. The mere fact that a position belongs to the CES does not automatically confer security of tenure on the applicant. 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 only 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. Such being the case, he could transferred or reassigned without violating the constitutional guarantee of security of tenure. (De Leon v. CA, 2001) Requisites for Security of Tenure of CES employee: 1. Career Service Eligibility 2. Appointment to the appropriate career executive service rank. It must be stressed that the security of tenure of employees in the CES (except 1st and 2nd 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 CES officer may be transferred or reassigned form one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CES officer suffers no diminution in 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 which he occupies. (General v. Roco, 2001) Non-Career Service The non-career service is characterized by: 1. Entrance on bases other than of the usual tests of merit and fitness utilized for the career service; Consti Review (Atty. Cubero) - - session 15 8

2. Tenure which is limited to a period specified by law, or which is co-terminous 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. (Cruz, PPL) The non-career service includes: 1. Elective officials and their personal or confidential staff; 2. Department heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff; 3. Chairmen and members of commissions and boards with fixed terms of office and their personal or confidential staff; 4. Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and perform or accomplish the specific work or job, under their own responsibility with a minimum of direction and supervision from the hiring agency; and 5. Emergency and seasonal personnel (Cruz, PPL) Q: Is the classification in the Revised Administrative Code (Career and Non-Career) and the classification in Section 2(2) (Competitive and Non-competitive) mutually exclusive? A: No. Rather, they overlap and complement each other. The classification in the Code is for the purposes of determining tenure. The classification in Section 2(2) is for purposes of determining the manner of testing merit and fitness. Significance of Distinction between competitive and non-competitive positions Appointment to a competitive positions must be made according to merit and fitness as determined, as far as practicable, by competitive examination. Merit and fitness in appointments to non-competitive positions are not determined by competitive examinations; but merit and fitness are required. (Bernas, Primer) Disqualifications 1. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries. (6) 2. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (7) 3. 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 corporations or their subsidiaries. (7) Q: What is the purpose of the prohibition of appointment of lame ducks in Section 6? A: The extirpation of the spoils system. Q: Are there exceptions to the rule against appointment of elective officials? A: Yes. The Vice-President may be appointed member of he Cabinet. A member of Congress is designated to sit in the Judicial and Bar Council. (Bernas, Primer) Disqualifications Q: Is the rule on appointive officials (7) applicable to members of Cabinet? A: No. For them, the applicable rule is the stricter prohibition in Article VII, Section 13. Q: Distinguish the rule on appointments of members of Congress and rule on elective officials (other than Congressmen). A: The 1st paragraph of Section 7 governs elective officials. Unlike the provision for members of Congress in Article VI Section 13, which does not prohibit acceptance of an appointment but merely causes the forfeiture of the congressional seat if the holder accepts an appointment, 1st paragraph Consti Review (Atty. Cubero) - - session 15 9

of Section 7 prohibits elective officials other than members of Congress from accepting appointment during their tenure. If the elective official accepts an appointment without first resigning his elective position, the appointment is invalid. Neither, however, does he thereby forfeit his elective seat. (Flores v. Drilon, 1993) Q: May Congress by law authorize the appointment of elective officials? A: No. Unlike the case of appointive officers in 2nd paragraph of Section 7, Congress may not create exception on elective officials mentioned in 1st paragraph of Section 7. Security of Tenure (Bar Question) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. (2(3)) Significance of Security of Tenure The efficiency of the a civil service system depends largely on the morale of the officers and employees in the service. Morale, in turn, can be fatally undermined when the security of officers in the possession of their office is unprotected against the arbitrary action of superior officers. Hence, basic in any civil service is a guarantee of security of tenure, a guarantee against arbitrary impairment, whether total or partial of the right to continue in the position held. (Bernas, Primer) For Cause Provided by Law This is a guarantee of both procedural and substantive due process. For Cause means for reasons which the law and sound public policy recognize as sufficient for removal, that is legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. Moreover, the cause must relate to and effect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. (De los Santos v. Mallare) Coverage of Security of Tenure Security of Tenure is enjoyed only by those who posses a permanent appointment. (Bernas, Commentary) One does not become a permanent appointee unless qualified for the position, and this, even if the appointment extended is mistakenly designated as permanent. The appointment of one who is not qualified can only be temporary and it is understood from the outset that it is without fixity but enduring only at the pleasure of the appointing authority. For an appointment to be permanent, it must be a real appointment by the appointing authority and not just a designation by one who does not have the appointing authority. (Thus, where the law says that the officer is to be appointed by the President, designation by the department secretary does not result in a permanent appointment. (Binamira v. Garucho)) Even one who has an appointment to a position which is subsequently converted to a career position must yield the position to one who has it if he or she does not possess career eligibility.(Dimayuga v. Benedicto II) A person lacking the necessary qualifications who is given a temporary appointment does not automatically become a permanent appointee when he or she acquires the required qualification. (For a temporary appointee to become permanent, he must receive a new commission, that is, a permanent appointment if he is to be considered permanent.) Coverage of Security of Tenure Persons occupying non-competitive positions are also covered by the guarantee of security of tenure. The distinction between competitive and non-competitive is significant only for purposes of appointment. The termination of the official relation of officials and employees holding primarily confidential positions on the ground of loss of confidence can be justified because in that case their cessation from office involves no removal but expiration of the term of office. (Hernandez v. Villegas, 14 SCRA 544, 1965) Consti Review (Atty. Cubero) - - session 15 10

Facts: Petitioner a watchman in the office of the provincial treasurer, was dismissed for the convenience of the province. He has no civil service eligibility. He sued for reinstatement. Held: Although petitioner is not a civil service eligible, this is not a ground to dismiss him anytime without formal charge. The position of watchman falls under the unclassified service. Positions in the unclassified service are also guaranteed security of tenure. (Baquidra v. CFI, 80 SCRA 123) Q: Do appointees to the foreign service who do not belong to the Career Corps enjoy security of tenure like the Career Corp.? A: No. Political appointees in the foreign service possess tenure coterminous with that of the appointing authority or subject to his pleasure. (Astraquillo et al v. Manglapus, 1990) Q: Binamira was designated by the Secretary of Tourism as Manager of the Tourism Authority. The law, however, requires that the Manager be appointed by the President. Did Binamira acquire security of tenure? A: No, because he did no receive a valid appointment. (Binamira v. garucho, 1990) Coverage of Security of Tenure Q: Can one who does not have qualifications for a position acquire security of tenure therein? A: No, security of tenure in an office is acquired only by one who has the qualifications for that office. (Dimayuga v. Benedicto , 2002) Q: Are temporary appointees protected by the guarantee of security of tenure? A: No. they may be removed anytime. (Mendiola v. Tancinco, 1973) The new Constitution now says: Temporary employees of the Government shall be given such protection as may b e provided by law. (The provision is not self-executory) Q: What is the extent of the Presidents disciplinary authority over presidential appointees who belong to the career service? A: The power is limited. Career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated by law. (Larin .v. Executive Secretary, 280 SCRA 713) END OF SESSION THANK YOU!!!

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