Professional Documents
Culture Documents
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
a.
Public Office
A public office is an incident
of sovereignty.
A public offices object is to
carry out governmental and
sovereign
functions
even
those not bound by contract.
In a public office, there is
tenure,
duration
and
continuity.
Public Contract
A contract originates from the
will of the parties and subject to
the limitations imposed by law.
A contract imposes obligations
only upon those who entered it.
As to
Key Considerations
Manner of Creation
I.
Public Office
There is a delegation of some
of the sovereign functions of
government to a public office.
Public Employment
No such delegation of sovereign
functions to public employment.
b. It must be invested with an authority to exercise some portion of the sovereign power of
the State to be exercised for public interest;
c.
Its powers and functions are defined by the Constitution, or by law, or through legislative
authority;
d. The duties pertaining to a public office are performed independently, without control of a
superior power other than law, unless they are those of an inferior or subordinate officer,
created or authorized by the legislature and placed by it under the general control of a
superior officer or body; and
e.
b. By the exercise of Congress of its legislative function. Except for such offices created by
the Constitution, the legislative department has the primary discretion to determine
whether additional public offices shall be created, or whether these duties shall be
attached to and become ex officio duties of existing offices.
c.
Serana vs. Sandiganbayan, et. al. (G.R. No. 162059, January 22, 2008)
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
"As an investment in an individual of some portion of the sovereign functions of the government to
be exercised by him for the benefit of the public makes one a public officer." Petitioner Serana, as
the student regent of the University of the Philippines-Diliman is deemed a public officer because a
perusal of the existing charter of UP would show that the Board of Regents, where petitioner is a
member, exclusively exercises the powers of administration of the University.
The fact that Serana does not receive any salary as a student regent is of no moment because
compensation is not a essential element of public office.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
b. Eligible means being legally fitted or qualified to hold an office. Under the
Administrative Code of 1987, it refers to one who obtains a passing grade in a civil
service exam (Executive Order No. 292, Book V, Title I, Subtitle A, Chapter 1,
Section 5(8)).
c. Ineligibility refers to lack of qualifications required by law for holding public
office.
d. Ineligible may mean legally or otherwise disqualified to hold an office;
disqualified to be elected to an office; disqualified to hold an office if elected or
appointed to it.
2. Meaning of Qualification
a. It may refer to the endowment or accomplishment that fits one for office; or
b. It may refer to the act which a person is legally required to do before entering upon
the performance of his duties.
3. Nature of right to hold public office
a. Not a natural right
1. It exists only because of some law expressly or impliedly creating or conferring
it.
b. Not a constitutional right
1. It is not a constitutional right but a political privilege that depends upon the favor
of the people and subject to reasonable conditions for the public good, lawful,
and non-discriminatory terms laid down by law.
4. Power of Congress to prescribe qualifications
a. In general
1. Congress has the power to prescribe such qualifications which must have a
rational basis with the duties of the position in question, and not inconsistent
with constitutional provisions.
b. Where office is created by Congress
1. Congress is empowered to specify qualifications and disqualifications as long as
these are not contrary to the Constitution.
c. Where office is created by the Constitution
1. The constitutional criteria are exclusive and Congress has no power to require
different qualifications for constitutional offices other than those qualifications
laid in the Constitution, unless the Constitution expressly or impliedly gives the
power to set qualifications.
d. Where qualifications prescribed by the Constitution
1. Congress may prescribe certain qualifications unless it appears that this is
prohibited.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
Right of Suffrage
1. Only electors or voters are eligible for public office.
d. Residence
1. Statute may require that a candidate for election or appointment to an office of a
political subdivision or unit be a resident or inhabitant thereof.
2. Residence and Domicile both mean an intention to reside in a fixed place
and personal presence in that place, coupled with conduct indicative of that
intention.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
10
e.
Education
1. Some statutes prescribe educational qualifications for certain offices requiring
persons possessing professional attainments.
f.
g. Political affiliation
1. The Constitution and existing laws sometimes require membership in a political
party or group as a condition for eligibility to certain offices (Constitution, Article
VI, Section 17, 18; Local Government Code, Section 45(b)).
h. Civil service exam
1. Qualifications in an appropriate exam for appointment to first and second level
positions in the career service is required under the Civil Service Law to ensure
merit and fitness to perform the duties attached to the positions (Presidential
Decree No. 807, Section 19(7)).
2. Religious qualifications prohibited.
a. Religious beliefs or opinions cannot be made a test of political right and privilege.
b. No religious test shall be required for the exercise of civil or political rights
(Constitution, Article III, Section 5).
3. Power of Congress to impose property qualifications
a. View that law constitutional
1. Legislature has the power to impose property qualifications upon office holders,
unless inhibited by the constitution. This view holds that certain public officers
may be required to be resident property owners without violating due process
and equal protection laws.
b. View that law unconstitutional
1. This view holds that property ownership requirement runs against due process
and equal protection guarantees as there is no rational connection between
qualifications for administering public affairs and ownership of real property.
2. The Supreme Court declared as unconstitutional a law requiring all candidates
for public offices to post a surety bond equivalent to the one year salary or
emoluments for the position for which they are candidates (Maquera v. Borra, 15
SCRA 7 (1965)).
4. Qualifications prescribed by the Constitution for certain officers
a. President and Vice-President
No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately preceding such election. (Constitution,
Article VII, Section 2)
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
11
b. Senators
No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day
of the election, is at least thirty-five years of age, able to read and write, a registered voter, and
resident of the Philippines for not less than two years immediately preceding the day of the
election. (Constitution, Article VI, Section 3)
c.
1.
e.
The civil service shall be administered by the Civil Service Commission composed of a Chairman
and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, with proven capacity for public administration, and
must not have been candidates for any elective position in the elections immediately preceding their
appointment. (Constitution, Article IX-B, Section 1(1)).
f.
There shall be a Commission on Elections composed of a Chairman and six Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirtyfive years of age, holders of a college degree, and must not have been candidates for any elective
position in the immediately preceding elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for
at least ten years. (Constitution, Article IX-C, Section 1(1)).
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
12
i.
The Ombudsman and his deputies shall be natural-born citizens of the Philippines, and at the time
of their appointment, at least forty years old, of recognized probity and independence, and members
of the Philippine Bar, and must not have been candidates for any elective office in the immediately
preceding elections. The Ombudsman must have for ten years or more been a judge or engaged in
the practice of law in the Philippines. (Constitution, Article XI, Section 8).
Secretaries of Departments
The Secretaries shall be citizens of the Philippines and not less than twenty-five years of age.
(Administrative Code of 1987, Book IV, Chapter 10, Section 45).
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
13
c.
No persons shall be appointed Regional Trial Court judge unless he is a natural-born citizen of the
Philippines, at least thirty-five years of age, and, for at least ten years, has been engaged in the
practice of law in the Philippines requiring admission to the practice of law as an indispensable
requisite. (Batas Pambansa Blg. 129, Section 15).
d. Judges of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts
No person shall be appointed judge of a Metropolitan Trial Court, Municipal Trial Court, or
Municipal Circuit Trial Court unless he is a natural-born citizen of the Philippines, at least 30 years of
age, and, for at least five years, has been engaged in the practice of law in the Philippines, or has
held a public office in the Philippines requiring admission to the practice of law as an indispensable
requisite. (Batas Pambansa Blg. 129, Section 26).
e.
f.
No person shall be appointed Chairman, member, or substitute member of the Board of Election
Inspectors unless he is of good moral character and irreproachable reputation, a registered voter of
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
14
the city or municipality, has never been convicted of any election offense or of any other crime
punishable by more than six months of imprisonment, or if there is a pending information against
him for any election offense. He must be able to speak and write English or the local dialect.
(Omnibus Election Code, Section 166)
SUMMARY OF QUALIFICATIONS
Citizenship
Age
Residency
Right to suffrage
Educational
professional
background
Others
or
President and VP
Senators
Natural-born
40 years
Philippines, at least 10
year
Resident voter
Read and write
Natural-born
35 years
Philippines, at least 2
year
Resident voter
Read and write
Composition
Citizenship
Age
COMELEC Chair
and
Commissioners
Chairman + 6
Com
Natural-born
35 years
Members
of
the
House
of
Representatives
Natural-born
25 years
District, at least 1 year
Members
of
the
Supreme Court, lower
collegiate courts
Natural-born
40 years
-
Resident voter
Read and write
Chairman +
Com
Natural-born
35 years
Chairman +
Com
Natural-born
Ombudsman
his Deputies
and
4
Natural-born
40 years
Educational
professional
background
or
Disqualification
Proven capacity
for
public
administration
Citizenship
Age
Educational
Professional
background
College
degree
holder
BUT
majority,
including
the
Chair, lawyers in
practice of law for
at least 10 years
or
Department
Secretary
Citizen
of
Philippines
25 years of age
-
Gov
&
Member
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
VGov,
of
the
Lawyers in practice
for at least 10 years
Recognized probity
and independence
RTC Judge
Natural born
40 years of age
At least 15 years judge
or practicing law in the
Philippines
35 years of age
At least 10 years judge
or practicing law in the
Philippines
30 years of age
At least 5 years judge
or practicing law in the
Philippines
Member
Sangguniang
of
Punong Barangay
or Member of
Member
of
Sangguniang
15
Citizenship
Right of Suffrage
Age
Educational
Professional
background
or
Sangguniang
Panlalawigan,Ma
yor,
VMayor,
Member
of
Sangguniang
Panglungsod of
Highly Urbanized
Cities
Citizen
of
the
Philippines
Registered Voter
23 years
Component
Cities,
Component
Cities,
Municipalities
Panglungsod
Sangguniang
Bayan
Citizen
of
the
Philippines
Registered Voter
21 years
or
Sangguniang
Barangay
Kabataan
Citizen
of
the
Philippines
Registered Voter
18 years
Citizen
of
the
Philippines
Registered Voter
18 years
Citizen of the
Philippines
Registered Voter
At least 15 but
not more than 21
Read and write
Filipino or any
local language or
dialect
3. Impeachment
a. Persons subject to impeachment:
1. President
2. Vice-President
3. Members of the Supreme Court
4. Members of Constitutional Commission
5. Ombudsman
b. Judgment in impeachment cases is limited to removal from office and
disqualification to hold any office under the Republic of the Philippines but
the convicted person shall still be subject to prosecution, trial and
punishment according to law. (Constitution, Article XI, Section 3(7).
16
Section 3(7), Article XI of the 1987 Constitution does not require that petitioner should first be
convicted in the impeachment proceedings before he can face prosecution for the criminal offenses
filed before the Office of the Ombudsman. Instead, the said constitutional provision provides for two
things: first, judgment in impeachment is limited only to removal from office and disqualification from
holding any other office in the government; and second, the party convicted may still be held liable
under prosecution and punishment according to law.
Further, the impeachment proceedings have become moot and academic due to petitioner's
resignation. The impeachment court is now functus officio. It is unreasonable to demand that
petitioner should first be impeached before criminal cases may be filed against him because the
same would result to a perpetual bar from prosecution.
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a.
a.
Emolument does not refer to the fixed salary alone but includes such fees
and compensations which the incumbent is entitled to receive by law.
a.
b. The disqualification exists only during the tenure in office (versus term of
office) of the elective official.
c.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
18
Members of the Civil Service Commission, Commission on Elections, and Commission on Audit are
also prohibited by the Constitution to become candidates for any elective position in the elections
immediately preceding their appointment. (Constitution, Article IX-B, Section 1(1); Article IX-C,
Section 1(1), Article IX-D, Section 1(1))
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2. Meaning of Appointment
a. It is the act of designation by the executive officer, board, or body to whom that
power has been delegated, of the individual who is to exercise the powers and
functions of a given office (versus being elected in office by popular vote).
(Borromeo v. Mariano, 41 Phil. 322 (1921)
b. It is equivalent to filling a vacancy in an office. (Conde v. National Tobacco Corp., 15
SCRA 118 (1961)
c.
d. The power to appoint carries with it the power or remove or discipline. (Aguirre, Jr. v.
De Castro, 321 SCRA 95 (1999); Bagatsing v. Herrera, 65 SCRA 434 (1975); Lacson
v. Romero, 84 Phil. 740 (1949)
4. Appointing power generally regarded as an executive function
a. Where power exercised by executive department
1. The power of appointment is intrinsically an executive function. Under the
principle of separation of powers, the creation of a public office is a legislative
function; the appointment of persons to office is an executive function; and the
legislature may confer this appointing power on the President or another public
officer or board within the executive department.
b. Where power exercised by other departments
1. Appointments to office by one department do not involve an encroachment
upon the function of any other branch.
5. Power to appoint discretionary
a. Power of courts to review appointment
1. Unless gravely abused, the courts will not review the appointment or
reappointment of a public officer. It cannot be subject to a write of mandamus
to compel the exercise of such discretion.
2. The appointing power has the prerogative to select, according to his judgment,
persons whom he thinks is best qualified among those who have the necessary
qualifications and eligibilities, provided, however, that it be exercised in good
faith and not in a malicious, harsh, oppressive, vindictive or wanton manner or
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
20
Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
b. Conditional where assent or approval by some other officer or body, such as the
Commission on Appointments, is necessary to complete the appointment.
7. Restrictions on the power to appoint
a. Generally
1. Persons to be appointed to a public office should possess the required
qualifications and be selected solely with a view to the public welfare.
b. Under the Constitution
1. Appointments by the President are subject to the following Constitutional
provisions:
a. The spouse and relatives by consanguinity of affinity within the fourth civil
degree of the President shall not, during his tenure be appointed as
Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled corporations
and their subsidiaries. (Constitution, Article VII, Section 13)
b. Two months immediately before the next presidential elections up to the
end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public
safety. (Constitution, Article VII, Section 15)
c.
The Congress, may, by law, vest the appointment of other officers lower in
rank in the President alone, in the court, or in the heads of departments,
agencies, commissions or boards. (Constitution, Article VII, Section 16)
d. The Supreme Court shall have the following powers: x x x Appoint all
officials and employees of the judiciary in accordance with the Civil Service
Law. (Constitution, Article VIII, Section 5(6))
e.
The Members of the Supreme Court and judges of lower court shall be
appointed by the President from a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy. Such appointments need
no confirmation. For the lower courts, the President shall issue the
appointments within ninety days from the submission of the list.
(Constitution, Article VIII, Section 9)
f.
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c.
i.
The officials and employees of the Office of the Ombudsman, other than
the Deputies, shall be appointed by the Ombudsman according to the Civil
Service Law. (Constitution, Article XI, Section 6)
j.
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a.
Express may be done verbally, in writing, by taking the oath of office, or posting of
bond.
b. Implied when, without formal acceptance, the appointee exercises or performs the
duties and functions of an office.
11. Obligation of elected or appointed individual to accept office
a. Generally not subject to compulsion
1. A person may not be compelled to accept a public office.
2. Exceptions:
a. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal military or civil service. (Constitution, Article II,
Section 4)
b. The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both,
shall be imposed upon any person who, having been elected by popular
election to a public office, shall refuse without legal motive to be sworn in or
to discharge the duties of said office. (Revised Penal Code, Article 234)
c.
because there was no valid nomination or recess of appointment. It was incumbent upon Venecia to
prove that he was indeed appointed ad interim, and the better rule requires some kind of written
memorial that could render title to public office indubitable.
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The Administrative Code also vests in the President the power to appoint the
Chairman and members of the Commission on Human Rights, which is likewise not
subject to confirmation of the Commission on Appointments. (Administrative Code,
Book V, Chapter 13, Title II, Subtitle A, Section 4; Bautista v. Salonga, 172 SCRA
160 (1989))
Permanent
1. Those which subsist until lawfully terminated.
d. Temporary or Acting
1. Those which last until a permanent appointment is made.
Appointments which are required to be submitted to the Commission on
Appointments are either regular or ad interim and are permanent in nature.
5. Ad interim appointments
a. These are appointments made by the President while Congress is in recess, thus,
the Commission on Appointments may only deliberate upon such appointments
when Congress goes into session.
b. The President is usually aided by the Commission on Appointments advice when it
comes to appointments. In the case of ad interim appointments, however, the
President acts alone and the system of checks and balances vital to our system of
government is not in place.
c.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
26
d. A person appointed in an acting capacity has no fixed tenure of office and his
appointment can be terminated at the pleasure of the appointing power. However,
such appointments cannot be used to circumvent the security of tenure principle in
the Constitution and Civil Service Law. (Civil Service Commission v. Darangina, 513
SCRA 648 (2007); Gayatao v. Civil Service Commission, 210 SCRA 183 (1992))
e. An unqualified person cannot be appointed even in an acting capacity. (Ignacio v.
Banate, Jr., 153 SCRA 546 (1987))
7. Designations
a. Designation is merely the imposition of new or additional duties upon an officer to
be performed by him in a special manner while performing the functions of his
permanent office.
b. It presupposes that the officer is already in service by virtue of an earlier
appointment. It is revocable and temporary in character and does not confer
security of tenure.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
27
c.
It does not entitle the officer designated to additional benefits or the right to claim
salary attached to the position. Neither can the Commission on Appointments
validly act upon it, as there is no appointment issued. (Dimaandal v. Commission on
Audit, 291 SCRA 322 (1998)
b. Confirmation
1. The power to confirm or reject certain appointments belongs to Congress
through the Commission on Appointments since it is a check on the executive.
2. A confirmation cannot be reconsidered after the President has been notified of
the confirmation and has completed the appointment by issuing a commission
the appointee even if the rules of the confirming body provide for
reconsideration.
c.
Issuance of commission
1. Commission is the written authority from a competent source given to the
officer as his warrant for the exercise of the powers and duties of the office. It is
the written evidence of the appointment.
2. When a person is elected to office, his right as established as a result of the
election and does not depend upon the issuance of a commission. Issuance of
a commission to an elected officer is merely a ministerial act and not a part of
the act of appointment. Instead, the elected officer is entitled to a certificate of
election.
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personnel of the entire government system, both national and local, including the
military.
b. Purpose to enable the national and local government and all its instrumentalities
and agencies to render more efficient services to the public by enabling them to
obtain efficient public servants. The Civil Service system seeks to establish a merit
system of fitness and efficiency as the basis of appointments.
2. Classifications of positions in the Civil Service
a. Career Service
1. Characteristics of career service:
a. Entrance is based on merit and fitness which is determined by competitive
examinations or are based on highly technical qualifications
b. Security of tenure
c.
d. Career officers other than those in the Career Executive Service who are
appointed by the President (i.e., Foreign Service Officers in the Department
of Foreign Affairs);
e.
f.
29
a.
b. Department heads and other officers of cabinet rank and their staffs
c.
f.
30
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
31
Offsetting of deficiencies
1. When necessary, education, experience or training may be used
interchangeably to offset deficiencies, except the required eligibility. The
decision as to when the conditions give rise to necessity to interchange
education with experience or training and vice-versa rests upon the sound
discretion of the appointing authority.
32
Where the appointment is made by the President to fill an executive office during the
absence or incapacity of the incumbent.
d. Where the appointee has not passed any civil service examination.
e.
Where the new appointment is still subject to a condition and compliance has not
been made yet. (i.e., subject to the consent and approval of the municipal council
(pursuant to Republic Act No. 1551, Section 1)
f.
Where a new incumbent has been appointed to fill the position of a regular
employee who has been illegally suspended or dismissed. There is no vacancy in
this case and the illegally dismissed employee is entitled to be reinstated to his
position.
33
motu proprio without notice and hearing to the examinee concerned, applying
the rule of res ipsa loquitor. No evidentiary hearing is required if the case simply
involves a rechecking of the examination papers.
12. Approval / recall of appointments by the Civil Service Commission
a. Appointments required to be approved
1. General rule: The Civil Service Commission must approve all appointments,
whether original or promotional, to positions in the civil service and disapprove
those where the appointees do not possess the appropriate eligibility or required
qualifications.
2. Exception: Presidential appointments, members of the Armed Forces of the
Philippines, police forces, firemen, and jail guards.
b. Right of appointee to a hearing in case of disapproval
1. Where the Civil Service Commission disapproves an appointment, the appointee
need not be previously heard since the action does not involve the imposition of
an administrative penalty.
2. The appointee is given the opportunity to be heard by filing a motion for
reconsideration of the disapproval.
3. The Civil Service Commission may recall, on its own initiative, the erroneous
initial approval of an appointment and review the same anew.
c.
d. Criterion to be employed
1. Whether or not the appointee possesses the appropriate civil service eligibility or
the required approved qualifications to an office is used by the Civil Service
Commission as the sole criterion when it acts on appointments.
e.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
34
Attestation of appointment
1. Purpose: to determine whether the appointee possesses the requisite civil
service eligibility.
2. When the appointee is qualified, and all other requirements have been satisfied,
the Civil Service Commission has no choice but to attest the appointment.
Once this function is discharged, the Commissions participation in the
appointment process ceases.
35
a.
An office may be vacant when it is occupied by one who is not a de jure officer, as
by mere usurper, or by one who is holding over.
Accidental When the incumbent having died, resigned, or been removed, there is
no one in esse discharging the duties of the office.
d. Absolute When the term of an incumbent having expired and the latter not having
held over, no successor is in being who is legally qualified to assume the office.
5. Causes of vacancy
a. Death, permanent disability, removal from office, or resignation of the incumbent, if
illegally suspended or dismissed, the office is not vacant. Resignation or removal
must be valid so that the office may be declared vacant.
b. Abandonment, expiration of term, conviction of a crime, impeachment, conviction,
acceptance of incompatible office, creation of a new office, reaching the age limit,
and recall, or by failure of persons chosen for office to accept or qualify for the
office.
6. Filling of anticipated vacancies
a. Generally appointment legal
1. A prospective appointment to fill an anticipated vacancy in public office, made
by a person or body which, as then constituted, is empowered to fill the vacancy
when it arises, is legal appointment and vests title to the office in the appointee.
b. Where appointment to take effect after expiration of appointing power
1. Appointing power cannot forestall the right and prerogatives of their successors
by appointing successors to the offices expiring and after its power to appoint
itself has expired.
E. Qualifying to Office
1. Qualification (as an act) to an office
a. The person appointed or elected to a public office is usually required by law, before
entering upon the performance of his duties, to do some act by which he shall
signify his acceptance of the office and his undertaking to execute the trust confided
in him. This generally consists in taking of an oath, or giving an official bond.
2. Effect of failure to qualify
a. Failure or neglect to qualify at all would be deemed evidence of a refusal of the
office. However, a failure or neglect to qualify within a period prescribed, if
afterwards supplied, would not be deemed a rejection of the office.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
36
b. A person appointed to an office who fails to qualify does not become an officer de
jure; he may be regarded as an officer de facto.
3. Oath of office for public officers and employees
a. Oath is an outward pledge whereby one formally calls upon God to witness to the
truth of what he says or to the fact that he sincerely intends to do what he says.
b. Under the Constitution
Before they enter on the execution of their office, the President, Vice-President, or the Acting
President shall take the following oath or affirmation:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President
(or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So
help me God. (Constitution, Article VII, Section 5)
Before they enter on the execution of their office, the President, Vice-President, or the Acting
President shall take the following oath or affirmation:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President
(or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So
help me God. (Constitution, Article VII, Section 5)
All public officers and employees shall take an oath or affirmation to uphold and defend this
Constitution. (Constitution, Article IX-B, Section 4)
All members of the armed forces shall take an oath or affirmation to uphold and defend this
Constitution. (Constitution, Article XVI, Section 5(1))
c.
All public officers and employees of the government including every member of the armed forces
shall, before entering upon the discharge of his duties, take an oath or affirmation to uphold and
defend the Constitution; that he will bear true faith and allegiance to it; obey the laws, legal orders
and decrees promulgated by duly constituted authorities; that he will well and faithfully discharge to
the best of his ability the duties of the office or position upon which he is about to enter; and that he
voluntarily assumes the obligation imposed by his oath of office, without mental reservation or
purpose of evasion. Copies of the oath shall be deposited with the Civil Service Commission and
the National Archives. (Administrative Code of 1987 (Executive Order No. 292), Book I, Chapter 10,
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
37
Section 40)
38
It creates a primary contractual obligation between the injured party and the officer
and surety.
39
He must have qualified himself to perform the duties of such office according to the
mode prescribed by the Constitution or law.
a.
Officer de Facto
Rests on reputation
Has the possession and performs the duties
under color of right or authority without being
technically qualified in all points of law to act
May be ousted in a direct proceeding against
him.
There can be no officer, either de jure or de facto, where there is no office to fill.
While there can be no de facto officer where there is no de jure office, there may be
a de facto officer in a de jure office. (Government of the Philippine Islands v.
Springer, 50 Phil. 259 (1927); Turanda v. Sandiganbayan, 249 SCRA 342 (1995))
Usurper
Has neither lawful title nor color of right or title to
the office
He simply assumes to act as an officer where
the public knows or ought to know that he is
such a usurper
Can be ousted at any time in any proceeding
Acts are absolutely null and void
40
Where the de jure officer whom the purported de facto officer replaces did
not resign in the manner required by law, so that there was no de jure office
to be filled; or
d. Where statutory conditions of the creation of the office have not been
complied with
b. There must be a color of right or general acquiescence by the public
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Alberto!C.!Agra,!Ateneo!Law!School
41
Where the mayor, because of poor health, designated the Vice-Mayor to act in his
place, then the latter designated the first ranking councilor who, not being also in
good health, in turn, designated the third ranking councilor to act as mayor, when
under the law then in force, such designation should be made by the Provincial
Governor with the consent of the Provincial Board, still the Acting Mayor was acting
under color of authority, as distinguished from a usurper who is one who has neither
title nor color of right to an office. his acts are official acts of a de facto officer, and,
therefore, valid and binding. All the requisites of de facto officership are present in
this case, i.e., an office and actual physical possession of the office, under color of
title or authority. (Codilla v. Martinez, 110 Phil. 24 [1960])
f.
A judge who, in good faith, continues to act and is recognized by common error
after the abolition of his court is deemed de facto judge of a court which succeeds
to the jurisdiction of that presided over by him; and the judgment pronounced by a
judge de facto who is generally accepted and recognized as judge by common error
of the community, is valid and binding. (U.S. v. Abalos, 2 Phil. 73 [1903])
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
42
g. A judge who continued to exercise his duties after his appointment was disapproved
by the Commission on Appointments according to a newspaper report but before
receiving official notification regarding the rejection of his appointment is a de facto
judge, and all his official actions as such judge are valid on all legal points and for all
kinds of cases as if he were a de jure. (Regala v. Judge of CFI, 77 Phil. 684 [1946])
12. Office created under an unconstitutional statute
a. View that occupant not even officer de facto
1. Where an office does not legally exist, the pretended officer is merely a usurper
whose acts are null and void.
b. Contrary view
1. For the sake of public policy, the incumbent will be recognized as an officer de
facto until the unconstitutionality of the act has been judicially determined.
13. Legal effects of acts of de facto officers
a. As regards the officers themselves
1. A party suing or defending his own right as a public officer must show that he is
an officer de jure and it is not sufficient to show that he is merely a de facto
officer because the acts of the de facto officer, as far as himself is concerned,
are void.
b. As regards the public and third persons
1. Acts of a de facto officer are valid until his title to office is adjudged insufficient.
The officers authority may not be collaterally attacked or inquired into as if there
is no difference between a de jure and a de facto officer.
14. Proceedings to try right or title of a de facto officer
a. In order to question the right of a de facto officer, a direct proceeding of quo
warranto must be brought. His title and the validity of his acts cannot be collaterally
questioned in proceedings to which he is not a party or not instituted to determine
their validity.
b. It may be instituted only by the person claiming to be entitled to the office or by the
Republic as represented by the Solicitor General or by the public prosecutor.
15. Right to compensation of a de facto officer
a. General rule: A de facto officer cannot maintain an action to recover the salary and
other emoluments attached to the office.
b. Exception: If one becomes a de facto officer without bad faith and renders service,
he may recover the compensation provided by law for the period he rendered the
service, or retain the emolument received during that time.
c.
Exception to the exception: The rule that a de facto officer is entitled to receive the
salary for services actually rendered does not apply where the officer was not
appointed but merely designated. Designation does not entail payment of additional
benefits or grant upon the person so designated the right to claim the salary
attached to the position. (Dimaandal v. Commission on Audit, 291 SCRA 322
(1998))
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a.
A de facto officer is held to the same degree of accountability for official acts as a
de jure officer.
b. While the official acts of a de facto officer are valid and may be binding with regard
to third persons and the public, such officer may be liable for all penalties imposed
by law for usurping or unlawfully holding office, or for exercising the functions
thereof without lawful right or without being qualified according to law.
c.
A de facto officer cannot excuse his responsibility for crimes committed in his
official capacity by asserting his de facto status.
d. A rightful incumbent can recover the salary received by a de jure officer during the
latters wrongful incumbency even if the de facto officer occupied the office in good
faith and under color of title. (General Manager, PPA v. Monserate, G.R. No.
129616, April 17, 2002; Monroy v. Court of Appeals, 20 SCRA 620 (1967); Civil
Liberties Union v. Executive Secretary, 194 SCRA 317 (1991); Arimao v. Taher, 498
SCRA 74 (2006))
Part 4. Powers, Duties, and Norms of Conduct of Public Officers
A. Source of powers and authority of public office
The Philippines is a democratic and republican state. Sovereignty resides in the people and all
government authority emanates from them. (Constitution, Article II, Section 1)
1. The entire source of public governmental authority is found in the people themselves,
either directly or through representatives chosen by them.
B. Authority of public officer not presumed
1. A public officer exercises power, not rights. As such, there is no presumption of
authority in the officer itself, either express or implied. In the absence of a valid grant,
public officers are devoid of power. (Villegas v. Subido, 33 SCRA 49 (1969))
C. Authority of public officer and private agents distinguished
1. In the case of private agents, authority may be classified according to their nature and
effect, into universal, general and special agencies. This classification cannot apply in
its entirety to the case of public agents.
2. Universal authority in any public agent cannot exist under our constitutional government.
There are public officers, however, whose authority is general in its nature, while that of
others is expressly limited and special.
D. Ascertainment of authority of public officer
1. It is presumed that all persons having occasion to deal with a public officer have
knowledge of his authority as it is bring created by law or being a matter of public
record. However, persons should not rely on mere presumption of authority. Instead,
they must see to it that the authority is sufficient for the assumed purposes.
2. Every citizen has the right to assume that the public officer charged by law with certain
duties knows such duties and performs them in accordance with law.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
44
Radio Communications of the Philippines, Inc. v. Santiago (58 SCRA 493 [1974])
The Public Service Commission punished Radio Communications with a fine. They appealed
alleging that the Public Service Commission has no power to do so since there is an express
limitation in the law exempting radio companies from the jurisdiction of the body.
The Court ruled that the Public Service Commission has no power to impose such a fine. Except for
constitutional officials who can trace their competence to act to the fundamental law itself, a public
officer must locate in the statute relied upon a grant of power before he may exercise it. It need not
be express. It may be implied from the wording of the law. Acts done without authority can be set
aside.
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1. Duration of term
a. The exercise of authority by a public officer is limited to that term during which he is
invested by law with the rights and duties of the office. He cannot exercise authority
granted by law before his term begins or after it has terminated.
2. Where officer chosen to act in reference to a particular subject
a. When an officer is chosen to perform a single act as when he is chosen for a definite
term, his authority ceases once the act is done.
H. Construction of grant of powers
1. Express grant of power are subjected to a strict interpretation in order to be construed
as conferring only those powers which are expressly imposed or necessarily implied.
I.
Ministerial
1. A duty is ministerial when it is absolutely certain, and imperative, involving
merely execution of a specific duty arising from fixed and designated facts.
There is no element of discretion in the duty.
2. It is one which a person performs on a given statement of facts, and in a
prescribed manner, in obedience to the mandate of legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety
of the act done. (Lamb v. Phipps, 23 Phils. 156 (1912); De Guzman, Jr. v.
Mendoza, 453 SCRA 565 (2005))
b. Discretionary
1. Such duties require the exercise of reason in adapting the means to the end,
and discretion in determining how or whether the act shall be done. It arises
when the act can be performed in more than one way, which leads the
performer in which way it should be performed.
2. From the standpoint of the obligation of the officer to perform his powers and duties
a.
Mandatory
1. Powers are generally construed as mandatory, even if the language may be
permissive, when it is for the benefit of the public or individuals.
b. Permissive
1. Directory provisions usually state the manner and mode on how the official will
do the duties, and those which are designed merely to secure order, uniformity,
system, and dispatch in public business.
3. From the stand point of the relationship of the officer to his subordinates
a.
Power of control
1. It implies that the officer has the power to manager, direct and govern, including
the power to alter and to set aside what a subordinate had done in the
performance of his duties and to substitute his own judgment for that of the
latter. An officer with such a power can lay down the rules in the doing of an
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Alberto!C.!Agra,!Ateneo!Law!School
46
act, and it is discretionary upon him to have the act undone if he is not followed,
or he may decide to do it himself.
b. Power of supervision
1. It is power of mere oversight over an inferior body. An officer with
supervisory power merely sees to it that all the rules are followed, but he
himself does not lay down such rules, nor does he have the discretion to
modify or replace them.
J. Ministerial and discretionary powers distinguished
1. Nature of act
a. The character of a duty as ministerial or discretionary must be determined by the
nature of the act to be performed, and not by the office of the performer.
2. Exercise of discretion
a. The key distinction is whether the duty is mandatory or whether the act complained
of involves policy making or judgment.
1. An act is discretionary if it involves enforcement or administration of a
mandatory duty at the operational level, even if professional expert evaluation is
required.
2. An act is ministerial if nothing is left to the discretion of the person who must
perform.
K. Meaning of discretion
1. It is the act or the liberty to decide according to the principles of justice and ones ideas
of what is right and proper under the circumstances, without willfulness or favor.
2. It is the faculty conferred by law upon public officers to act according to the dictates of
their own judgment and conscience, uncontrolled by the judgment and conscience of
others. (Lamb v. Phipps, 23 Phils. 156 (1912))
L. Exercise of discretion limited
1. The exercise of discretion by an officer is still limited to the evident purposes of the act,
and to what is known as a sound and legal discretion, excluding all arbitrary, capricious,
inquisitorial and oppressive proceedings.
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49
50
b.
c.
d.
e.
f.
Citations
Directorships in government-owned or controlled corporations
Scholarship grants (local or foreign)
Paid vacations
Automatic promotion, provided that if there is no vacant next higher position, the
position shall be included in the next budget of the office, unless the creation of the
position will result in distortion. Where there is no next higher position immediately
available, a salary increase equivalent to the next higher position shall be given.
3. Committee on Awards
a. Composition:
1. Ombudsman
2. Chairman and co-chairmen of the Civil Service Commission
3. Chairman of the Commission on Audit
4. Two (2) government employees to be appointed by the President
b. Functions and responsibilities of the Committee:
1. Conduct a periodic, continuing review of performance of officials and employees
in all departments, offices, and agencies;
2. Establish a system of annual incentives and rewards to the end that due
recognition is given to officials and employees of outstanding merit on the basis
of the criteria or standards set forth above;
3. Determine the form of rewards to be granted;
4. Formulate and adopt its own rules to govern the conduct of its activism, which
shall include guidelines for evaluating nominees, and mechanism for recognizing
the awardees in public ceremonies, and the creation of sub-committees.
U. Duties of public officers as trustees for the public
1. In general The obligation of a public officer does not include risking or giving his life or
incurring disablement.
a. Duty to obey the law until it is determined as unconstitutional
b. Duty to accept and continue in office
1. Mandamus may be invoked to compel acceptance by a person elected or
appointed to a public office.
2. Resignation does not relieve an office of the duties of his office, at least until a
successor is appointed.
c.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
51
2. Ethical duties
a. Public officers are bound to perform their duties honestly, faithfully and to the best
of their abilities.
b. Duty as to outside activities
1. It is the duty of public officers to refrain from outside activities which interfere
with the proper discharge of their duties.
c.
A public officer or employee shall, upon assumption of office and as often as may be required by
law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the
President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the
Constitutional Commissions and other constitutional offices, and officers of the armed forces with
general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.
(Constitution, Article XI, Section 17)
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
52
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1. All papers and documents must be processed and completed within a reasonable time
from the preparation thereof, subject to the following rules:
a.
When the law specifies a period for the action to be taken, the same shall be
followed.
b. When the law states no period, the agency concerned shall issue rules prescribing
reasonable time, taking into account the following factors:
1. Nature of the subject matter
2. Adequacy of the requirements necessary
3. Lack of resources caused by circumstances beyond the control of the office
4. Legal constraints that prevent action
5. Fault or neglect of the party concerned
6. Force majeure
Z. Signing of any written action or decision
1. As far as practicable, any written action or decision must contain not more than 3 initials
or signatures.
2. When the duly authorized signatories are absent, the official next-in-rank or officer-incharge shall sign based on the foregoing rules:
a. If there is only one official next-in-rank, he shall automatically be the signatory;
b. If there are two or more officials next in rank, the appropriate officer shall prescribe
the order of priority;
c. If no official next-in-rank is available, the office shall designate an officer-in-charge
from among the lower ranked public officers in the organizational unit.
AA. Public disclosure of statements of assets and liabilities
1. Who files: All public officials and employees, except those who serve in an honorary
capacity, laborer and casual or temporary workers
2. What must be filed:
a. Statement of Assets, Liabilities and Net Worth and a Disclosure of theirs spouses
and unmarried children under 18 years old living with them.
1. If both spouses are public officers, they may file either separately or jointly.
2. Contents:
a. Real property, its improvements, acquisition costs, assessed value and
current fair market value
b. Personal property and their acquisition costs
c. Other assets (i.e. stocks, bonds, investments, etc.)
d. Financial liabilities, long and short term
e. All business interests and financial connections
b. Written authority in favor of the Ombudsman to obtain from all appropriate
government agencies documents that may show their assets, liabilities, etc.,
including from years since they first assumed public office.
3. When to file:
a. Within 30 days after assumption of office, reckoned as of his first day in office
b. On or before April 30 of every year thereafter
c.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
54
4. Where to file:
a. President, Vide-President, Constitutional Officials
- National Office of the
Ombudsman
b. Senators, Members of the House of Representatives with the respective
Secretaries of their houses
c. Supreme Court Justices Court Administrator
d. Other national executive officers, heads of government-owned or controlled
corporations with the office of the President
e. Regional / local officials, elective and appointive, other officials of governmentowned or controlled corporations with the Deputy Ombudsman in their regions
f. Officers of the AFP with rank of Naval Captain or Army Colonel and above Office
of the President
g. Officers of the Armed Forces of the Philippines with rank below Naval Captain or
Army Colonel Deputy Ombudsman
h. Other public officials Civil Service Commission
5. Identification and disclosure of relatives
a. It is the duty of every public official to employee to identify and disclose, to the best
of his knowledge and information, his relatives in the government up to the fourth
civil degree of relationships, either of consanguinity or affinity, including bilas, inso,
and balae.
6. Accessibility of documents
a. To be made available for inspection at reasonable hours
b. To be made available for copying after 10 working days from the time they are filed
c.
Persons requesting may be required to pay a fee for reproduction, certification and
mailing thereof
d. Any statement shall be made available for a period of 10 years after receipt of such
statement, to be destroyed at the end of such period, unless needed for an ongoing
investigation
e.
Ombudsman may also inspect pursuant to the required written authority executed
by the public officer
7. Prohibited acts
a. It is unlawful to obtain or use any of the above statements for:
1. Any purpose contrary to morals or public policy
2. Any commercial purposes other than by news for dissemination to the general
public
8. Review of compliance procedures
a. The following may determine whether or not the statements are properly
accomplished:
1. Congress by the designated committees, subject to the approval by the
majority of the House concerned
2. Executive by the heads of the departments concerned, subject to the approval
of the Secretary of Justice
3. Judicial Chief Justice of the Supreme Court
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Alberto!C.!Agra,!Ateneo!Law!School
55
If the statement is not filed correctly, they shall inform the reporting public officer
and take corrective action
In the interest of national defense or security or the conduct of foreign affairs, such
information should be kept secret
b. If the life and safety of an individual is in imminent danger
c. Privileged information
d. The information comprises drafts of decisions, orders, ruling and policy decisions
e. If it is such a personal nature that a disclosure would constitute a violation of ones
right to privacy
f. It would disclose investigatory records compiled for law enforcement purposes to
the extent that it would:
1. Interfere with enforcement proceedings
2. Deprive a person of a right to a fair trial
3. Disclose the identity of confidential source
4. Unjustifiably disclose investigative techniques
g. Premature disclosure as would likely lead to speculative financial speculations or
endanger stability of financial institutions
3. Every head of department, office, and agency should also establish information systems
to inform the public about rules, programs, reports, and all other documents classified
as public information.
CC. Reforms on public administrative systems
1. Every head of department, office, or agency shall conduct value development programs
for its officials and employees in order to strengthen commitment to public service and
to promote primacy of public interest over personal interest in the performance of their
duties. Such programs shall include the following:
a. Ethical and moral values
b. Rights, duties and responsibilities of public servants
c. Nationalism and patriotism
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d.
e.
f.
g.
2. Every department, office, and agency should also conduct continuing studies and
analyses of its work systems and procedures to improve delivery of public services.
3. They shall also develop and regularly update a service guide which should be made
available to the transacting public.
4. They shall also consult the public for their feedbacks, suggestions of the efficiency and
effectiveness of services.
5. They shall also continue to conduct research and experimentation on measures and
adopt innovative programs for motivating public officials and employees in observing
public service ethical standards.
6. They shall also, in consultation with the Office of the Ombudsman, appoint or designate
a resident Ombudsman who shall act on requests for public assistance referred to him
by the Ombudsman and his Deputies.
7. Government officials shall also make themselves open for consultations and dialogues
with their staff.
Part 5. Rights and Privileges of Public Officers
A. In general
1. Rights incident to public office
a. The rights incident to a public office are conferred and measured by the Constitution
or by law, or both, under which the public officer was elected or appointed.
2. Rights as a citizen
a. Protection from publication commenting on his fitness and the like
a. By reason of the public character of his employment, a public officer is not
entitled to the same rights accorded to an ordinary citizen. Examples are the
protection from publications commenting on his fitness and the prohibition on
engaging in certain political or business activities.
b. Engaging in certain political and business activities
1. Public employees may be required to suspend or refrain from engaging in
certain political or business activities when such activities are reasonably
deemed inconsistent with their public status and duties.
B. Right to Compensation
1. Power of Congress to fix compensation
a. Power primarily but not exclusively legislative in character
1. The power to fix compensation of public officers is not inherently and
exclusively a legislative function.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
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Per diem
1. It is a daily allowance given for each day an officer is away from his home by
reason of his official duties. It is usually reimbursement for extra expenses.
2. It will not be considered per diem if it is given in the nature of compensation for
full time work.
3. It is also not deemed a salary in relation to the constitutional provision that no
change in the compensation of officers shall affect the salary of any officer
during his existing term.
d. Emoluments
1. It refers to the profits arising from the office, and that which is received as
compensation for services or which is annexed to the office as salary, fees or
perquisites and includes those which, by law, the officer is entitled to receive.
2. Allowances (i.e., representation and transportation, housing, etc.) are included in
the term emoluments.
4. Basis of right to compensation
a. Creation of law
1. It is not regarded as a contract or a vested property right but rather as a public
trust to be exercised for the benefit of the public. A public officers right to
compensation exists solely as the creation of law.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
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b. Services rendered
1. The right to compensation grows out of the rendition of services. However, in
the absence of a statute to the contrary, a public officer is not entitled to
compensation for services rendered under an unconstitutional statute or
provision.
2. Compensation is paid only for service actually or constructively rendered,
following the no work, no pay principle.
c.
Amount of compensation
1. The nature of an officials position should be the determining factor in the fixing
of his or her salary. Thus, the law employs grade as the determinant of salary,
which depends upon the nature of ones position, including the level of difficulty,
responsibilities, and qualification requirements thereof relative to that of another
position.
2. Law fixes the officials grade. (Binay v. Sandiganbayan, 316 SCRA 65 (1999))
f.
Ex oficio position
1. An ex oficio position is part of the principal office. Therefore, the official
concerned has no right to receive additional compensation for services in an ex
oficio position because these services are already paid for and covered by the
compensation attached to the principal office. (Bitonio, Jr. v. Commission on
Audit, 425 SCRA 437 (2004); Civil Service Commission v. De la Cruz, 437 SCRA
403 (2004))
5. Recovery of compensation
a. An action to recover the compensation attached to a public office belongs to the
person who has the true title to the office, not merely a colorable title thereto.
1. From the government
a. Generally, the de jure officer cannot recover that which has been paid to a
de facto officer unless the government continues to pay even after having
received notice of an adjudication in favor of the de jure.
b. In cases where there is no de jure officer, a de facto officer is legally entitled
to the emoluments of the office if he is:
1. In good faith
2. Has possession of the office
3. Has discharge of the duties of said office
2. From the de facto officer
a. After the notice of adjudication in favor of the de jure officer, the de facto
officer is not entitled to keep what has been paid for services rendered.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
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b. Also, where the tenure of the de facto was wrongful, the salary received by
such may be recovered.
3. From the intruder or usurper
a. An intruder or usurper has no right to the salary or emoluments of the office.
He becomes liable to the de jure officer in an action for money he had
received.
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2. Chief Justice, Associate Justices of the Supreme Court, and judges of lower
courts
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges
of lower courts shall be fixed by law. During their continuance in office, their salary shall not be
decreased. (Constitution, Article VIII, Section 10)
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b. Congress may also increase the salaries of the mentioned officers but it shall not
take effect until after the expiration of their full term.
9. Prohibition against receiving additional, double, or indirect compensation
No elective or appointive public officer or employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor accept without the consent of the
Congress, any present, emolument, office, or title of any kind from any foreign government.
Pensions or gratuities shall not be considered as additional, double, or indirect compensation.
(Constitution, Article IX-B, Section 8)
a.
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1. The Code of Conduct and Ethical Standards for Public Officials and Employees
(Republic Act no. 6713) and the Implementing Rules on:
a. Rewards and incentives
b. Norms of conduct and ethical standards
c. Duties and obligations of public officers and employees
d. Prohibitions and sanctions enumerated in the Implementing Rules
e. Civil and criminal liability
e.
Exemptions
1. Those who render free voluntary service are exempted from the following:
a. Filing of statements of assets and liabilities and net worth, and financial
disclosures
b. Requirement of divestment
c. Eligibility requirements
d. Security of tenure
f.
Prohibitions
1. Unless otherwise provided in the terms of their designations, volunteers are
prohibited from:
a. Exercising supervisory functions over personnel
b. Exercising functions of positions involving national security
c. Having access to confidential or classified information unless authorized by
proper authorities
d. Occupying regular plantilla positions
e. Having such services credited as government service and availing
themselves of retirement benefits
f. Using facilities and resources of the office for partisan political purposes
g. Receiving any pecuniary benefit such as honoraria, allowances, and other
perquisites of office. (Implementing Rules, Rule XII, Section 1)
C. Other rights
1. Rights under the Constitution
a. Right to self-organization
The right to self-organization shall not be denied to government employees. (Constitution, Article
IX-B, Section 2(5))
The right of the people, including those employed in the public and private sectors, to form unions,
associations or societies for purposes not contract to law shall not be abridged. (Constitution,
Article III, Section 8)
x x x It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance with law.
x x x (Constitution, Article XIII, Section 3, para. 2)
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1. The right includes the right to form labor organizations or unions and the right to
collective negotiation.
2. It excludes the right to bargain collectively with the government or to engage in
concerted activities.
3. The right to strike is absolutely prohibited since the terms and conditions of
government employment are fixed by law.
b. The right to protection of temporary employees
1. Temporary employees of the government shall be given such protection as may
be established by law but they do not enjoy security of tenure.
c.
A Senator or Member of the House of Representatives shall, in all offenses punishable by not more
than 6 years imprisonment, be privileged from arrest while Congress is in session. No member shall
be questioned nor be held liable in any other place for any speech or debate in the Congress or in
any committee thereof. (Constitution, Article VI, Section 11)
64
b. Concerted activity or mass action done outside government office hours may be
allowed provided it would not result in disruption of work.
c.
Government workers can form associations for purposes not contrary to law but this
right excludes the right to bargain collectively with the government, or to engage in
concerted activities. The right to strike is absolutely prohibited since the terms and
conditions of their employment are fixed by law.
Government agencies shall not approve mass leave of absences, which occurs
when five or more employees of the same agency apply for leave simultaneously or
almost at the same time under circumstances evidencing collusion or common
design to participate in a prohibited mass action. Officials who approve mass leave
applications to join mass actions shall also be subject to administrative sanction.
f.
3. Rights under the Civil Service Decree and the new Administrative Code
a. The right to preference in promotion
1. Among the rules for the recruitment and selection of employees are as follows:
a. When vacancy occurs in a position in 1st level of Career Service, the
following shall be considered for promotion:
1. Employees in the department who occupy the next lower positions in
the occupational group under which the vacant position is classified /
those in other functionally related occupational groups
2. Those who are competent, qualified and with the appropriate civil
service eligibility.
b. When vacancy occurs in a position in the 2nd level of Career Service, the
rules for vacancy in 1st level positions also apply.
c.
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3. Levels of appeal
a. 1st to the Secretaries / heads of agencies, instrumentalities,
government-owned or controlled corporations with original charters
b. 2nd to the Merit System Protection Board
c. 3rd to the Civil Service Commission (by protest questioning the
appointment)
d. 4th Judicial review first to the Court of Appeals, then to the
Supreme Court
4. The participation of the appointing authority in the protest filed with the
Civil Service Commission is indispensable inasmuch as the action of the
protestant is really against the determination made by the appointing
authority.
e.
f.
The right not to be suspended or dismissed except for cause as provided by law
and after due process
g. Right to organize
1. Government employees shall not be discriminated against in respect of
employment by reason of their membership or participation in employees
organizations.
2. Employment should not be subject to the condition that they shall not join or
shall relinquish membership in the organization.
3. Government authorities shall not interfere through acts designed to place
organizations under control of the government authorities.
4. Next-in-Rank rule
a. Not a mandatory requirement
1. The next-in-rank rule applies only in cases of promotion. It 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 positions. The person nextin-rank is only given a preferential consideration for promotion to a vacant
position.
b. Reason for the rule
1. The preference given to old or permanent employees is because they are
assumed to have gained not only superior skills but also greater dedication to
the public service, provided that the acts of the appointing power are for the
best interest of the public service and the person chosen has the required
qualifications. (Torio v. Civil Service Commission, 209 SCRA 677 (1992);
Cabagnot v. Civil Service Commission, 223 SCRA 59 (1993))
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Alberto!C.!Agra,!Ateneo!Law!School
66
c.
d. Overriding factor
1. The overriding factor for the next-in-rank rule is to foster a more efficient public
service.
5. Personnel actions
a. Personnel action refers to any action denoting movement or progress of personnel
in the civil service which must be in accordance with the rules or standards
promulgated by the Civil Service Commission. Personnel actions include the
following:
1. Appointment through certification
a. Appointment through certification is issued to a person selected from a list
of qualified persons certified by the Civil Service Commission from an
appropriate register or eligibles (list of those who passed competitive
examinations) and who meets all the other requirements of the position.
(Presidential Decree No. 807, Section 24(a))
2. Promotion
a. It refers to advancement from one position to another with an increase in
duties and responsibilities as authorized by law and usually accompanied by
an increase in pay. The movement may be from one department or agency
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Alberto!C.!Agra,!Ateneo!Law!School
3. Transfer
a. It refers to movement from one position to another of equivalent rank, level,
or salary without break in service involving issuance of appointment.
b. It is not considered disciplinary when made in the interest of public service,
in which case, the employee shall be informed of the reasons therefor. If
employee believes that there is no justification for the transfer, he may
appeal the matter to the Civil Service Commission.
c. Transfer may be from one department or agency to another (detail), or from
one organizational unit to another within the same agency or department
(reassignment). Movement from non-career service to career service shall
not be considered a transfer. (Presidential Decree No. 807, Section 24(c))
d. Temporary transfer or assignment is permissible even without the
employees consent, except in cases where the transfer is:
1. A preliminary step to removal
2. A scheme to lure the employee away from permanent position
3. Designed to indirectly terminate services / force resignation (Benjamin
v. Court of Appeals, 209 SCRA 644 (1992))
4. Reinstatement
a. It refers restoration to a state or condition from which one has been
removed or separated. (Viernes v. National Labor Relations Commission,
400 SCRA 557 (2003))
b. Who may be reinstated: any person who has been permanently appointed
to a position in the career service and who has, through no delinquency or
misconduct, been unlawfully separated therefrom.
c.
d. Receipt by an employee of separation and terminal leave pay are not fatal to
allow appeal for reinstatement where acceptance of the benefits was
dictated more by economic necessity rather than by a desire to leave
government employment. (Dytiaco v. Civil Service Commission, 211 SCRA
88 (1992))
e.
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68
f.
5. Reemployment
a. Persons who have been appointed permanently to career positions and
separated as a result of the reduction in work force and / or reorganization
may be re-employed. (Presidential Decree No. 807, Section 24(e))
6. Detail
a. It refers to the movement of an employee from one department or agency to
another without the issuance of appointment.
b. It is allowed only for a limited period in case of employees occupying
professional / technical / scientific positions.
c.
If the employee believes that there is no justification for the detail, he may
appeal his case to the Civil Service Commission but the decision to detail
the employee shall be executory pending appeal, unless the Civil Service
Commission orders otherwise. (Presidential Decree No. 807, Section 24(f))
7. Reassignment
a. An employee may be reassigned from one organizational unit to another in
the same department but such reassignment shall not involve a reduction in
rank, status or salary. Otherwise, the reassignment constitutes constructive
removal which is violative of the right to security of tenure. (Presidential
Decree No. 807, Section 24 (g); Bentain v. Court of Appeals, 209 SCRA 644
(1992))
b. Reassignment does not require the issuance of an appointment.
8. Demotion
a. It refers to movement from one position to another involving the issuance of
an appointment with diminution in duties, responsibilities, status, grade or
rank which may or may not involve reduction in salary. (Omnibus Rules
Implementing Book V of the Administrative Code of 1987, Rule VII, Section
11)
b. The assignment of an employee to a less important position in the same
service with lower rate of compensation is tantamount to removal if no
cause is shown for it. (Domingo v. Carague, 456 SCRA 450 (2005))
6. Rights under the Revised Government Service Insurance Act
a. Covered employees:
1. All government employees upon assumption of office pursuant to a valid
appointment / election and oath of office
2. Barangay and sanggunian officials who receive basic pay / salary
3. Elective officials during their term
b. Excluded from compulsory membership in the GSIS:
1. Uniformed members of the Armed Forces of the Philippines and the Philippine
National Police
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2. Those not receiving basic pay / salary (e.g. only per diems, honoraria,
allowances)
c.
All covered employees are mandated to pay contributions, except members of the
judiciary and the Constitutional Commissioners.
70
It is in the nature of retained wages and reward for giving the best years of
employees lives in the service of their country. Pension serves the purpose of:
1. Enticing or encouraging faithful and competent employees to enter or remain in
the service; and
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a.
Pension
An act of justice emanating from desire to
provide adequate compensation for services
already rendered.
GSIS benefits are not gratuities but are considered contractual obligations.
The doctrine of liberal construction of retirement laws cannot be applied where clear
intent of applicable laws and rules are demonstrably against retirees claim.
72
In Executive Order No. 966, however, the term appointment was used in a general sense to
include the term designation and no distinction was intended between the two terms. The
Supreme Court thinks that this is to be the more reasonable interpretation, especially considering
that the provision includes in the highest salary rate compensation for substitutionary services or in
an acting capacity.
Government Service Insurance System v. Civil Service Commission (245 SCRA 179 [1995])
Belo served full-time as Vice-Governor on hold-over capacity and received compensation in the
form of per diems. However, no deductions for GSIS contributions were made from these salaries /
per diem.
An employee can avail of retirement benefits notwithstanding failure to make contributions to GSIS
for the duration she was receiving per diem as compensation. Per diem is compensation creditable
in computing retirement benefits / length of service. A per diem could rightfully be considered a
compensation or remuneration attached to an office. The per diems received by Belo during the
period that she acted in holdover capacity obviously were in the nature of compensation or
remuneration for her services as Vice Governor of the Province of Capiz, rather than as a
reimbursement for incidental expense uncured while away from her home base.
The basis for the provision on retirement benefits is service to the government. While GSIS is partly
dependent on contributions of members, the fact that these contributions are minimal when
compared to the amount of retirement benefits actually received shows that such contributions,
while necessary, are not absolutely determinative in drawing up criteria for those who would qualify
as recipients of the retirement benefit system.
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Alberto!C.!Agra,!Ateneo!Law!School
73
In a sense, the contract made between the GSIS and the government employee is done on a takeover-or-leave-it basis, that is, it is virtually a contract of adhesion which gives the employee no
choice but to involuntarily accede to the deductions made from their oftentimes meager salaries. If
the GSIS did not deduct, it was by its own choice. Failure to deduct is not the fault of employees.
Moreover, the source of GSIS benefits is not in essence merely contractual; rather, it is a social
legislation. The situation can be rectified by deducting a reasonable amount corresponding to the
contributions which should have been deducted during the period from the amount of retirement
benefits accruing to them.
Quaison, dissenting:
The GSIS is not obligated to grant retirement benefits to its members. Such obligation exists where
there is a contract of life or retirement insurance between the GSIS and the government employee.
Premiums payable by the members are the lifeblood of the retirement scheme. It would be unjust
for Belo to compel GSIS to grant her retirement benefits when she never remitted the employers
and her share of contributions for the period. To countenance such argument would result in an
equitable situation where the GSIS is exposed to a risk without the benefit of receiving any
contribution or premium. The GSIS was never intended to be a charitable institution for government
retirees. It is only fair that the GSIS be entitled to the payment of premiums as soon as it is exposed
to the risk insured against, whether it be a life or annuity insurance.
The most liberal application that can be given to the ruling of the GSIS with respect to services paid
on per diem basis is to limit it to cases where the retiree has paid the corresponding retirement
premiums during said periods.
Brion v. South Philippine Union Mission of the Seventh Day Adventist Church (307 SCRA 497
[1999])
Brion is a member of the Seventh Day Adventist. When he retired, he received a monthly amount as
retirement benefit. When he was excommunicated, however, the monthly retirement benefit was
discontinued.
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74
Brion is entitled to his benefits. The conditions of eligibility for retirement must be met at the time of
the retirement at which juncture, the right to retirement benefits or pension, if the employee is
eligible, vests in him. In this case, Brion has already a vested right to receive retirement benefits, a
right which cannot be taken away from him by expulsion or excommunication, this not being a
ground for termination of retirement benefits under the SDAs retirement plan.
Backwages
Restores the income that was lost by reason of
unlawful dismissal.
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2. He may recover even if the salary has been paid to another appointed to fill the
vacancy unlawfully created.
3. The no work, no pay principle does not apply where it has been sufficiently
shown that a public official was wrongfully prevented from entering office and
carrying out his duties.
4. It is immaterial if the appointment is temporary because what is material is the
act of wrongful deprivation of office, and not the nature of the appointment.
5. The office claiming back his office is not entitled to the salary during the
pendency of the case.
d. Where suspended employee later found innocent
1. To deny an innocent employee of his backwages during his suspension would
be tantamount to punishing him after his exoneration from the charges which
caused his dismissal from the service.
2. Before a public official or employee who has been reinstated is entitled to
payment of salaries withheld, it should be shown that the suspension or removal
was unjustified or illegal or that he was innocent or acquitted of the charge
preferred against him.
3. A partys claim for backwages may be the appropriate subject of an ordinary
civil action, not mandamus.
e.
f.
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1. A public officer or employee who has been removed from his position must act
with reasonable diligence to have himself reinstated. His right to reinstatement
may be lost by unreasonable delay in asserting his rights which may be validly
considered as a waiver or renunciation.
2. Petition for quo warranto and mandamus affecting titles to public office must be
filled within 1 year from the date the petitioner is ousted from his position.
3. Claim for back salaries and damages is also subject to a 1 year prescriptive
period.
j.
A government employee shall own whatever he may conceive and perfect even
when he created them during the performance of the duties of his office, unless he
has merely produced that which he was employed to invent, or he was employed to
use his inventive faculties for the governments benefit.
For violation of the National Internal Revenue Code -- Any person, except an internal revenue
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official or employee, or other public official, or his relative within the 6th degree of consanguinity, who
voluntarily gives definite and sworn information, not yet in the possession of the Bureau of Internal
Revenue leading to the discovery of frauds upon the internal revenue laws or violations of any of the
provisions thereof, thereby resulting in the recovery of revenues, surcharges and fees and / or the
conviction of the guilty party and / or the imposition of any fine or penalty, shall be rewarded in a
sum equivalent to fifteen per centum of the revenues, surcharges or fees recovered and / or file or
penalty imposed and collected. The same amount of reward shall also be given to an informer
where the offender has offered to compromise the violation of law committed by him and his offer
has been accepted by the Commissioner and in such case, the fifteen per centum reward fixed
herein shall be based on the amount agreed upon in the compromise and collected from the
offender: Provided, That should no revenue, surcharges, or fees be actually recovered or collected,
such person shall not be entitled to a reward: Provided, further, That the information mentioned
herein shall not refer to a case already pending or previously investigated or examined by the
Commissioner or any of his deputies, agents: Provided, finally, That the reward provided herein shall
be paid under regulations issued by the Commissioner of Internal Revenue with the approval of the
Secretary of Finance.
For discovery and seizure of smuggled goods. -- To encourage the public and law-enforcement
personnel to extend full cooperation in eradicating smuggling, a cash reward equivalent to fifteen per
centum of the fair market value of the goods smuggled and confiscated goods shall be given to
persons instrumental in the discovery and seizure of such smuggled goods. (National Internal
Revenue Code, Section 281)
78
to their own private business and assure the public that they will be faithful and
dedicated in the performance of their functions.
2. Disabilities of Members of Congress
a. Right of members of Congress to hold any other office or employment
3. 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; (Constitution,
Article VI, Section 13)
4. 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;
(Constitution, Article VI, Section 13)
b. Right to engage in certain activities
3. No Senator or Member of the House of Representatives may personally appear
as counsel before any court of justice or before the Electoral Tribunals, or quasijudicial and other administrative bodies; (Constitution, Article VI, Article 14)
4. Neither shall he, directly or indirectly, be interested financially in any contract
with, or in any franchise or special privilege granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any governmentowned or controlled corporation, or its subsidiary, during his term of office. He
shall not intervene in any manner before any office of the Government for his
pecuniary benefit of where he may be called upon to act on account of his
office; (Constitution, Article VI, Article 14)
5. He shall not intervene in any cause or merit before any office of the government
for his pecuniary benefit or where he may be called upon to account of his office
or to give his vote as a member of Congress. (Constitution, Article VI, Article 14)
3. Disqualifications to hold any other office or employment in the government
a. A member of Congress is disqualified to hold 2 classes of office, namely:
3. Incompatible office
a. This includes any kind of 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.
b. Any other office or employment includes any position in the government
outside Congress including ex-officio membership of any non-congressional
body, committee, or commission, unless the second office or employment is
connected with or in aid of legislative duties.
c.
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a.
This refers to any office created or the emoluments of which have been
increased during the term for which he was elected, not merely during his
tenure or period of actual incumbency.
b. The period of ineligibility does not end until after the member shall have left
his office by the termination of his term (not tenure). Thus, even if a member
of Congress resigns or losses his seat before the end of his term, he shall
remain ineligible for appointment to such office.
b. The purpose of the disqualification is to prevent members of Congress from being
tempted to create office or increase their emoluments for personal gain.
4. Prohibition against financial interest
a. Appearance as counsel before any court of justice, etc.
3. A member of Congress shall not appear personally as counsel before any court
of justice or before the Electoral Tribunals or quasi-judicial and other
administrative bodies.
4. The purpose of the prohibition is to remove any possibility of influence upon the
judges of these courts or heads of members of these bodies who might be
swayed in their decisions by their hope for future appointments to higher
positions. The same is true for the prohibition to appear before the Electoral
Tribunals, as well as the inconsistency of a members position in representing a
party who may not be entitled to be a member of the body to which he belongs.
b. Financial interest in any contract with the government
3. He shall not, directly or indirectly, be interested financially in any contract with
the government during his term of office, whether as an individual or as a
member of a partnership or as an officer of a corporation.
4. The scope of indirect financial interest includes the spouse, but not the son or
brother of a member of Congress, unless used as a dummy or the member is
pecuniarily interested in the contract.
5. The prohibition seeks to prevent the use of whatever influence and pressure in
the award of government contracts.
6. Financial interest in any contract refers to interest involving financial
investment or business out of which a member of Congress is to derive profit or
gain (e.g., subscription to the capital stock of a government corporation).
Borrowing money from a government-owned or controlled bank does not
involve financial investment from which the borrower expects to obtain profit.
c.
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80
4. The prohibition seeks to insure that his every vote on any pending legislative
measure shall be dictated only for considerations of public good.
5. Disabilities of Members of Constitutional Commissions
a. The disabilities upon Members of Constitutional Commissions during their
continuance in office are similar to those imposed on the President and VicePresident, namely:
3. No member of a Constitutional Commission shall, during his tenure, hold any
other office or employment. (Constitution, Article IX-A, Section 2)
4. Neither shall he engage in the practice of any profession or in the active
management or control of any business which in any way may be affected by
the functions of his office. (Constitution, Article IX-A, Section 2)
5. Nor shall he be financially interested, directly or indirectly, in any contract with,
or in any franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-owned or
controlled corporations or their subsidiaries. (Constitution, Article IX-A, Section
2)
6. Prohibition against designation of members of judiciary to administrative positions
The Members of the Supreme Court and of other courts established by law shall not be designated
to any agency performing quasi-judicial or administrative functions. (Constitution, Article VIII,
Section 12)
a.
The President is prohibited from designating members of the Supreme Court and
other courts established by law to any agency performing quasi-judicial and / or
administrative functions.
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Professionalism in the armed forces and adequate remuneration and benefits of its members shall
be a prime concern of the State. The armed forces shall be insulated from partisan politics.
No member of the military shall engage directly or indirectly in any partisan political activity, except
to vote. (Constitution, Article XVI, Section 5(3))
a.
b. Elective officials and members of the Cabinet who are holding political offices are
not embraced in the prohibition. (Santos v. Yatco, 106 Phil. 754 (1959))
a.
Any elective official is disqualified for appointment or designation to any public office
or position during his tenure in office. He may be appointed provided he first
resigns from his seat.
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a.
Appointive officials may hold any other office or employment only when allowed by
law (may be totally unrelated) or required by the primary functions of his position
(when the functions are related).
10. Prohibition against acceptance of any present, etc., from any foreign state
No elective or appointive public officer or employee shall x x x accept without the consent of
Congress, any present, emolument, office, or title of any kind from any foreign government.
(Constitution, Article IX-B, Section 8)
a.
The prohibition against acceptance of any present, emolument, or official title of any
kind from any foreign state or government is founded on a just jealousy of alien
influence in domestic affairs.
a.
This rule is an expression of the doctrine of civilian supremacy over the military and
in respect of the principle that the soldiers job is to fight a war and not to run a
government.
grant
of
loan,
guaranty
or
other
form
of
financial
No loan, guaranty, or other form of financial accommodation for any business purpose may be
granted, directly or indirectly, by any government-owned or controlled bank or financial institution to
the President, Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and
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the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have
controlling interest during their tenure. (Constitution, Article XI, Section 6)
a.
The prohibition seeks to prevent officials mentioned from making use of their
influence to secure such loan, etc., to benefit them.
3. The prohibition applies to both elective and appointive officials, except if the law
authorizes the compensation. Neither can those officials accept any title,
emolument or present from any foreign state unless the President consents
thereto.
c.
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84
Laborers, whether skilled, semi-skilled or unskilled, shall not be assigned to perform clerical
duties. (Presidential Decree No. 807, Section 47)
e.
Nepotism
(a) All appointments in the national, provincial, city and municipal governments or in any branch or
instrumentality thereof, including government-owned or controlled corporations, made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the
persons exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word "relative" and members of the family referred to are those related
within the third degree either of consanguinity or of affinity.
(b) The following are exempted from the operation of the rules on nepotism: (1) persons employed in
a confidential capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of the
Philippines: Provided, however, That in each particular instance full report of such appointment shall
be made to the Commission.
The restriction mentioned in subsection (a) shall 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.
(c) In order to give immediate effect to these provisions, cases of previous appointments which are
in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or
salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of
these provisions. (Presidential Decree No. 807, Section 49)
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3. "Engage in any business transaction with the local government unit in which he
holds office or has power of supervision, or with its boards, officials, agents or
attorneys, whereby money or any valuable consideration is paid or transferred
out of the coffers of the local government unit to such person or firm;
4. Hold interest in a cockpit or games licensed by the local government unit;
5. Purchase real estate or forfeited property in favor of the local government unit
for unpaid taxes or assessment, or legal process at the instance of the said local
government;
6. Be a surety for anyone contracting with the local government unit for which a
surety is required;
7. Possess or use public property of the local government unit for private
purposes; and
8. Do acts that are prohibited in other laws.
b. Practice of profession
(a) All governors, city and municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in
schools except during session hours: Provided, That sanggunian members who are also members of
the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any
office, agency, or instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local
government is accused of an offense committed in relation to his office.
(3) Collect any fee for their appearance in administrative proceedings involving the local government
unit of which he is an official; and
(4) Use property and personnel of the government except when the sanggunian member concerned
is defending the interest of the government.
(c) Doctors of medicine may practice their profession even during official hours of work only on
occasions of emergency: Provided, That the officials concerned do not derive monetary
compensation therefrom. (Republic Act No. 7160, Section 90)
3. Governors and mayors are prohibited from practicing their profession other than
their functions as local chief executives.
Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
a.
Appear as counsel before any court in any civil case where the local
government unit is the adverse party;
No local official or employee in the career civil service shall engage directly or indirectly in any
partisan political activity or take part in any election, initiative, referendum, plebiscite, or recall,
except to vote, nor shall he use his official authority or influence to cause the performance of any
political activity by any person or body. He may, however, express his views on current issues, or
mention the names of certain candidates for public office whom he supports. Elective local officials
may take part in partisan political and electoral activities, but it shall be unlawful for them to solicit
contributions from their subordinates or subject these subordinates to any of the prohibited acts
under the Omnibus Election Code. (Republic Act No. 7160, Section 93)
3. Career local officials or employees are not allowed to engage in partisan political
activity, except to vote. He may express his opinions on political issues or name
the candidate he supports.
4. Elective local officials may take part in partisan political activities but they
cannot solicit contributions from their subordinates.
3. Prohibitions against purchase of certain property at public auction
The following persons cannot acquire by purchase, even at a public or judicial auction, either in
person or through the mediation of another:
(1) The guardian, the property of the person or persons who may be under his guardianship;
(2) Agents, the property whose administration or sale may have been entrusted to them, unless the
consent of the principal has been given; !
(3) Executors and administrators, the property of the estate under administration; !
(4) Public officers and employees, the property of the State or of any subdivision thereof, or of any
government-owned or controlled corporation, or institution, the administration of which has been
!
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87
intrusted to them; this provision shall apply to judges and government experts who, in any manner
whatsoever, take part in the sale; !
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers
and employees connected with the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the object of any litigation in which
they may take part by virtue of their profession. !
(6) Any others specially disqualified by law. (Civil Code, Article 1491)
The prohibitions in the two preceding articles are applicable to sales in legal redemption,
compromises and renunciations. (Civil Code, Article 1492)
a.
The Civil Code of the Philippines prohibits the following persons from purchasing,
even at a public or judicial auction, whether in person or through another:
1. Public officers and employees:
a. Property of the State, local government unit, or government-owned or
controlled corporations, the administration of which has been entrusted to
them, including judges or any government officer who took part in the sale.
2. Justices, judges, prosecuting attorneys, clerks of court, employees connected
with the administration of justice:
a. The property and rights in litigation or taken by virtue of a writ of execution
before the court where they exercise their function.
b. The prohibition covers acquisition through assignment, sales in legal
redemption, compromises and renunciation.
c.
For the prohibition to operate, the sale or assignment must take place
during the pendency of the litigation involving the property. If it is bought
after the decision became final, the prohibition no longer applies. (Macariola
v. Asuncion, 114 SCRA 77 (1982))
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Alberto!C.!Agra,!Ateneo!Law!School
88
In addition to the prohibitions found in Republic Act Nos. 3019 and 6713, personnel of the Bangko
Sentral are hereby prohibited from:
(a) being an officer, director, lawyer or agent, employee, consultant or stockholder, directly or
indirectly, of any institution subject to supervision or examination by the Bangko Sentral, except
non-stock savings and loan associations and provident funds organized exclusively for employees of
the Bangko Sentral, and except as otherwise provided in this Act;
(b) directly or indirectly requesting or receiving any gift, present or pecuniary or material benefit for
himself or another, from any institution subject to supervision or examination by the Bangko Sentral; !
(c) revealing in any manner, except under orders of the court, the Congress or any government office
or agency authorized by law, or under such conditions as may be prescribed by the Monetary
Board, information relating to the condition or business of any institution. This prohibition shall not
be held to apply to the giving of information to the Monetary Board or the Governor of the Bangko
Sentral, or to any person authorized by either of them, in writing, to receive such information; and !
(d) borrowing from any institution subject to supervision or examination by the Bangko Sentral shall
be prohibited unless said borrowings are adequately secured, fully disclosed to the Monetary Board,
and shall be subject to such further rules and regulations as the Monetary Board may prescribe:
Provided, however, That personnel of the supervising and examining departments are prohibited
from borrowing from a bank under their supervision or examination. (Republic Act No. 7653,
Section 27)
b. The New Central Bank Act provides that the Governor of the Bangko Sentral ng
Pilipinas and the full-time members of the Monetary Board shall not accept any
other employment (public or private), remuneration or ad honorem, except:
3. Eleemosynary, civil, cultural, religious organizations
4. Designated by the President to represent the interest of the government or
agencies in matters affecting the economy or financial system.
c.
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Alberto!C.!Agra,!Ateneo!Law!School
89
Any internal revenue officer who is or shall become interested directly or indirectly, in the
manufacture, sale, or importation of any article subject to tax under Title IV (now VI) of this Code or
in the manufacture or repair or sale of any die for the printing, or making of stamps, or labels shall,
upon conviction for each act or omission, be fined in a sum of not less than five thousand pesos but
not more than ten thousand pesos, or imprisoned for a term of not less than two years and one day
but not more than four years, or both. (Presidential Decree No. 1158, Section 270)
a.
The National Internal Revenue Code imposes the penalty of fine, imprisonment, or
both, upon conviction on:
3. Any Bureau of Internal Revenue officer or employee who divulges to any person
or makes known in any other manner than may be provided by law information
regarding the following which he acquired in the discharge of his official duties:
a.
b. Manufacture or repair or sale of any dye for the printing or making of stamp
or labels.
6. Prohibited acts and transactions under the Anti-Graft and Corrupt Practices Act
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Alberto!C.!Agra,!Ateneo!Law!School
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a.
The following constitute corrupt practices by public officers under Republic Act No.
3019:
1. Influencing another public officer to perform an act constituting a violation of
lawful rules or an offense in connection with the official duties of the latter, and
vice versa; (Marubeni Corporation v. Lirag, 362 SCRA 620 (2001))
Persuading, inducing or influencing another public officer to perform an act constituting a violation
of rules and regulations duly promulgated by competent authority or an offense in connection with
the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit
such violation or offense. (Republic Act No. 3019, Section 3 (a)
a.
Office of Court Administrator (OCA) vs. Nolasco, A.M. No. P-06-2148, March 4, 2009)
The act of Judge Misajon in inducing or persuading Nolasco to violate duly promulgated rules on the
administration of court funds may well constitute a violation of Section 3 (a) of RA 3019.
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for
himself or for any other person, in connection with any contract or transaction between the
Government and any other part, wherein the public officer in his official capacity has to intervene
under the law. (Republic Act No. 3019, Section 3 (b))
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91
(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to Section thirteen of this Act.
(Republic Act No. 3019, Section 3 (c))
a.
a.
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4. Causing any undue injury to any party including the government; or giving any
private party unwarranted benefit or advantage in the discharge of his official
functions through manifest partiality, evident bad faith or gross inexcusable
negligence; (Ponce de Leon v. Sandiganbayan, 186 SCRA 745 (1990); Mejia, Jr.
v. Sandiganbayan, 218 SCRA 219 (1992); Prieto v. Cariaga, 242 SCRA 315
(1995))
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions. (Republic Act No. 3019, Section 3 (e))
a.
An accused can be found guilty under both modes in violating Section 3 (e)
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93
c.
Arias vs. Sandiganbayan, (G.R. No. 81563, December 19, 1989, 180 SCRA 309)
In order for a department head to be liable for conspiracy, grounds other than his mere signature or
approval appearing on a voucher must be established. All heads of offices have to rely to a
reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase
supplies, or enter into negotiations. Hence, an examination in detail of the voucher by the head of
office is not required unless there is an additional reason to do so.
!
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94
Magsuci vs. Sandiganbayan, (G.R. No. 101545, January 3, 1995, 240 SCRA 13)
For conspiracy to exist, it is essential that there must be a conscious design to commit an offense.
But a person may be so held liable as a co-principal if he, by an act of reckless imprudence, has
brought about the commission of crime, without which it have been accomplished. When, however,
that infraction consists in the reliance in good faith, albeit misplaced, by a head of office on a
subordinate upon whom the primary responsibility rests, a conspiracy charge and conviction shall
not be sustained unless such is clearly established.
(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some pecuniary or material benefit or advantage, or for the
purpose of favoring his own interest or giving undue advantage in favor of or discriminating against
any other interested party. (Republic Act No. 3019, Section 3 (f))
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.
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Alberto!C.!Agra,!Ateneo!Law!School
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Marquez vs. Sandiganbayan, et. al. G.R. Nos. 182020-24 and Caunan vs. People, et. al., (G.R.
Nos. 181999 & 1812001-4, September 2, 2009)
The elements of Sec. 3(g) of RA 3019 are the following: (1) that the accused is a public officer; (2)
that he entered into a contract or transaction on behalf of the government; and (3) that such contract
or transaction is grossly and manifestly disadvantageous to the government.
The fact of overpricing is embedded in the third criminal element of Section 3(g) of R.A. No. 3019. If
the evidence used to prove this element is the COA's finding of overpricing, the items on which the
finding was based on must be identical to the alleged overpriced item.
(h) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction
in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited
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by the Constitution or by any law from having any interest. (Republic Act No. 3019, Section 3 (h))
(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any
transaction or act requiring the approval of a board, panel or group of which he is a member, and
which exercises discretion in such approval, even if he votes against the same or does not participate
in the action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those public officers responsible for the approval
of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to
which they belong. (Republic Act No. 3019, Section 3(i))
97
(k) Divulging valuable information of a confidential character, acquired by his office or by him on
account of his official position to unauthorized persons, or releasing such information in advance of its
authorized release date. (Republic Act No. 3019, Section 3(k))
d. The term office applies to any office which the public office is holding during the
pendency of the criminal case. Thus, if X was charged under Republic Act No. 3019
for acts committed when he was still mayor at the time when he was already
governor will still be suspended from that office. (Deloso v. Sandiganbayan, 173
SCRA 409 (1989); Bayot v. Sandiganbayan, 128 SCRA 383 (1984))
e.
Republic Act No. 3019 applies to both public officers and private persons
f.
One may be charged with violating Republic Act No. 3019 in addition to a felony
under the Revised Penal Code for the same delictual act, either concurrently or
subsequently. In this case, there will be no double jeopardy.
Ramiscal vs. Sandiganbayan, et. al., (G.R. Nos. 169727-28, August 18, 2006)
If in a deed of sale, the real property covered is underpriced by a public officer and his coconspirators to conceal the correct gains and documentary stamp taxes due on the sale causing
injury to the government, the offenders thereby commit two crimes- (a) falsification of public
document defined in paragraph 4, Article 171 of the Revised Penal Code; and (b) violation of Section
3 (e) of RA 3019, a special penal law. The offender incurs civil liability to the government as the
offended party for violation of Section 3 (e) of RA 3019, but not for falsification of public document
under paragraph 4, Article 171 of the Revised Penal Code.
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Alberto!C.!Agra,!Ateneo!Law!School
98
Prohibition on private individuals. (a) It shall be unlawful for any person having family or close
personal relation with any public official to capitalize or exploit or take advantage of such family or
close personal relation by directly or indirectly requesting or receiving any present, gift or material or
pecuniary advantage from any other person having some business, transaction, application, request
or contract with the government, in which such public official has to intervene. Family relation shall
include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close
personal relation" shall include close personal friendship, social and fraternal connections, and
professional employment all giving rise to intimacy which assures free access to such public officer.
(Republic Act No. 3019, Section 4(a))
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99
(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any
of the offenses defined in Section 3 hereof. (Republic Act No. 3019, Section 4 (b))
i.
Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by
consanguinity or affinity, within the third civil degree, of the President of the Philippines, the VicePresident of the Philippines, the President of the Senate, or the Speaker of the House of
Representatives, to intervene, directly or indirectly, in any business, transaction, contract or
application with the Government: Provided, That this section shall not apply to any person who, prior
to the assumption of office of any of the above officials to whom he is related, has been already
dealing with the Government along the same line of business, nor to any transaction, contract or
application already existing or pending at the time of such assumption of public office, nor to any
application filed by him the approval of which is not discretionary on the part of the official or
officials concerned but depends upon compliance with requisites provided by law, or rules or
regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the
exercise of a profession. (Republic Act No. 3019, Section 5)
100
1. The offender is a spouse or any relative by consanguinity or affinity within the third civil degree
of the President of the Philippines, the Vice-President of the Philippines, the President of the
Senate, or the Speaker of the House of Representatives; and
2. The offender intervened directly or indirectly in any business, transaction, contract or
application with the government.
x x x
As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of the
Solicitor General that the word can easily be understood through simple statutory construction. x x x
The term intervene should therefore be understood in its ordinary acceptation, which is to "to come
between." Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019-any
person who intervenes in any manner in any business, transaction, contract or application with the
government. As we have explained, it is impossible for the law to provide in advance details of how
such acts of intervention could be performed. But the courts may pass upon those details once trial
is concluded.
j.
Section 7 Filing of Statements of Assets and Liabilities and Net Worth (SALN)
Statement of assets and liabilities. Every public officer, within thirty days after the approval of this
Act or after assuming office, and within the month of January of every other year thereafter, as well
as upon the expiration of his term of office, or upon his resignation or separation from office, shall
prepare and file with the office of the corresponding Department Head, or in the case of a Head of
Department or chief of an independent office, with the Office of the President, or in the case of
members of the Congress and the officials and employees thereof, with the Office of the Secretary
of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a
statement of the amounts and sources of his income, the amounts of his personal and family
expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That
public officers assuming office less than two months before the end of the calendar year, may file
their statements in the following months of January. (Republic Act No. 3019, Section 7)
Ombudsman vs. Valeroso, (G.R. No. 167828, 2 April 2007, 520 SCRA 140)
Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be suppressed and
avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of
preventing said evil and is aimed particularly at curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honestly in the public service. "Unexplained" matter
normally results from "nondisclosure" or concealment of vital facts. SALN, which all public officials
and employees are mandated to file, are the means to achieve the policy of accountability of all
public officers and employees in the government. By the SALN, the public are able to monitor
movement in the fortune of a public official; it is a valid check and balance mechanism to verify
undisclosed properties and wealth.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
101
Carabeo vs. Court of Appeals, et. al., (G.R. No. 178000 and 178003, December 4, 2009)
Carabeo claims that the complaint against him involves a violation of Section 10, RA 6713, or the
Code of Conduct and Ethical Standards for Public Officials and Employees, which entitles him to be
informed beforehand of his omission and to take the necessary corrective action.
x x x
While Section 10 of RA 6713 indeed allows for corrective measures, Carabeo is charges not only
with violation of RA 6713, but also with violation of Revised Penal Code, RA 1379, and RA 3019, as
amended, specifically Sections 7 and 8 thereof[.]
x x x
Significantly, Carabeo failed to show any requirement under RA 3019 that prior notice of the noncompletion of the SALN and its correction precede the filing of charges for violation of its provisions.
Neither are these measures needed for the charges of dishonestly and grave misconduct, which
Carabeo presently faces.
Rabe vs. Flores, A.M. OCA IPI No. 97-1247, (272 SCA 415 (1997])
The Office of the Court Administrator also found that she had been receiving rental payments from
one Rodolfo Luay for the use of the market stall. That respondent had a stall in the market was
undoubtedly a business interest which should have been reported in her Sworn Statement of Assets
and Liabilities. Her failure to do so exposes her to administrative sanction.
x x x
In the present case, the failure of respondent to disclose her business interest which she herself
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Alberto!C.!Agra,!Ateneo!Law!School
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k.
Dismissal due to unexplained wealth. If in accordance with the provisions of Republic Act
Numbered One thousand three hundred seventy-nine, a public official has been found to have
acquired during his incumbency, whether in his name or in the name of other persons, an amount of
property and/or money manifestly out of proportion to his salary and to his other lawful income, that
fact shall be a ground for dismissal or removal. Properties in the name of the spouse and unmarried
children of such public official may be taken into consideration, when their acquisition through
legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into consideration in
the enforcement of this section, notwithstanding any provision of law to the contrary. (Republic Act
No. 3019, Section 8)
103
the government official or employee, or his spouse and unmarried children is unwarranted in the light
of the provisions of the statutes in question, and would make available to persons in government
who illegally acquire property an easy and fool-proof means of evading investigation and
prosecution; all they would have to do would be to simply place the property in the possession or
name of persons other than their spouse and unmarries children. This is an absurdity that we will not
ascribe to the lawmakers.
l.
Termination of office. No public officer shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense under this Act or
under the provisions of the Revised Penal Code on bribery. (Republic Act No. 3019, Section 12)
Estrada vs. Desierto, (G.R. Nos. 146710-15, March 2, 2001 and G.R. No. 146738, March 2, 2001)
Petitioner contends that the impeachment proceeding is an administrative investigation that, under
Section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it cannot be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.
Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a
valid information under this Act or under the provisions of the Revised Penal Code on bribery is
pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in
the meantime administrative proceedings have been filed against him. (Republic Act No. 3019,
Section 13)
suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under
Republic Act No. 3019, preventive suspension will last for less than ninety days only if the case is
decided within that period; otherwise, it will continue for ninety days.
The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the
time it takes the court to decide the case but not on account of any discretion lodged in the court,
taking into account the probability that the accused may use his office to hamper his prosecution.
Indeed, were the Sandiganbayan given the discretion to impose a shorter period of suspension, say,
80, 70, or 60 days, as petitioner asserts, it would lie in its power not to suspend the accused at all.
That, of course, would be contrary to the command of Sec. 13 of Republic Act No. 3019.
Dela Cruz, et al., vs. Sandiganbayan, et. al., (G.R. No. 161929, December 8, 2009)
The preventive suspension of the accused under Section 13 of RA No. 3019 is mandatory upon a
finding that the information is valid.
Section 13 of RA No. 3019 provides:
Section 13. Suspension and loss of benefits - Any public officer against whom any criminal
prosecution under a valid information under this act or under the provisions of the Revised Penal
Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final
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judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he
shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during
suspension, unless in the
meantime administrative proceedings have been filed against him.
Pursuant to this provision, it becomes mandatory for the court to immediately issue the suspension
order upon a proper determination of the validity of the information. The court possesses no
discretion to determine whether a preventive suspension is necessary to forestall the possibly that
the accused may use his office to intimidate witnesses, or frustrate his prosecution, or continue
committing malfeasance. The presumption is that unless the accused is suspended, he may
frustrate his prosecution or commit further acts of malfeasance or do both.
7. Prohibited acts and transactions under the Code of Conduct and Ethical Standards
a. Definitions under the Code of Conduct and Ethical Standards (Republic Act No.
6713):
3. Public officials includes:
a. Elective and appointive officials and employees including those in
government-owned or controlled corporations and their subsidiaries;
b. Permanent or temporary;
c. Career or non-career service;
d. Including military and police personnel
e. Whether or not receiving compensation
4. Gift refers to a thing or a right disposed of gratuitously or any act of liberality in
favor of another who accepts it and shall include a simulated sale or an
ostensibly onerous disposition thereof. It shall not include unsolicited gift of
nominal or insignificant value not given in anticipation of, or exchange for, a
favor from a public official or employee. (Mabini v. Raga, 491 SCRA 525 (2006))
5. Receiving any gift includes the act of accepting, directly or indirectly, a gift
from a person other than a member of his family or relative as defined in the Act,
even on the occasion of a family celebration or national festivity like Christmas,
of the value of the gift is neither normal nor insignificant, or the gift is given in
anticipation of, or in exchange for, a favor.
6. Loan covers both simple loan and commodatum as well as guarantees,
financing arrangements or accommodations intended to ensure approval.
b. Under Republic Act No. 6713, the following constitute prohibited acts and
transactions and are declared unlawful:
3. Financial and material interest
a. Public officials and employees shall not, directly or indirectly, have any
financial or material interest in any transaction requiring the approval of their
office.
4. Outside employment and other activities related thereto
a. Public officials and employees during their incumbency and for 1 year after
resignation, retirement, or separation from public office shall not:
1. Own, control, manager or accept as employment as officer, employee,
consultant, counsel, broker, agent, trustee or nominee in any private
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107
b. Whenever a conflict of interest arises, a public official or employee shall resign from
his position in any private business enterprise within 30 days from his assumption of
office and / or divest himself of his shareholdings or interest within 60 days from
such assumption. Divestment shall be mandatory if the conditions for conflict of
interest still concur even if he has resigned from his position in any private business
enterprise.
c.
Domingo vs. Ombudsman, et. al., (G.R. No. 176127, January 30, 2009)
The charge of violation of Section 4(b) of RA No. 6713 deserves further comment. The provision
commands that "public officials and employees shall perform and discharge their duties with the
highest degree of excellence, professionalism, intelligence and skill." Said provision merely
enunciates "professionalism as an ideal norm of conduct to be observed by public servants, in
addition to commitment to public interest, justness and sincerity, political neutrality, responsiveness
to the public, nationalism and patriotism, commitment to democracy and simple living. Following
this perspective, Rule V of the implementing Rules of R.A. No. 6713 adopted by the Civil Service
Commission mandates the grant of incentives and rewards to officials and employees who
demonstrate exemplary service and conduct based on their observance of the norms of conduct laid
down in Section 4. In other words, under the mandated incentives and rewards system, officials and
employees comply with the high standard set by law would be rewarded. Those who fail to do so
cannot expect the same favorable treatment. However, the Implementing Rules does not provide
that they will have to be sanctioned for failure to observe these norms of conduct. Indeed, Rule X of
the Implementing Rules affirms as grounds for administrative disciplinary action only acts "declared
unlawful or prohibited by the Code." Rule X specifically mentions at least twenty=three (23) acts or
omissions as grounds for administrative disciplinary action. Failure to abide by the norms of
conduct under Section 4(b) or R.A. No. 6713 is not one of them.
Furthermore, there is obviously a denial of due process in this case. The due process requirement
mandates that every accused or respondent be apprised of the nature and cause of the charge
against him, and the evidence in support thereof be shown or made available to him so that he can
meet the charge with traversing or exculpatory evidence. A cursory reading of the complaintaffidavit does not reveal that petitioner was charged with violation of Section 4(b) of R.A. No. 6713.
Likewise, in the OMB's Evaluation Report, the charges indicated were for malversation, falsification,
dishonesty, and grave misconduct.
Carabeo vs. Court of Appeals, et. al, (G.R. No. 178003, December 4, 2009)
Carabeo claims that the complaint against him involves violation of Section 10, RA 6713, or the
Code of Conduct and Ethical Standards for Public Officials and Employees, which entitles him to be
informed beforehand of his omission and to take the necessary corrective action.
Section 10 of RA 6713 provides:
Section 10. Review of Compliance Procedure. - (a) The designated Committee of both Houses of
Congress shall establish procedures for the review of statements to determine whether said
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statements which have been submitted on time, are complete, and are in proper form. In the event a
determination is made that a statement is not filed, the appropriate Committee shall so inform the
reporting individual and direct him to take the necessary corrective action.
x x x
While Section 10 of RA 6713 indeed allows for corrective measures, Caraveo is charged not only
with violation of RA 6713, but also with violation of the Revised Penal Code, R.A. 1379, and RA
3019, as amended, specifically Section 7 and 8 thereof, which read:
Sec. 7. Statement of Assets and Liabilities. - Every public officer, within thirty days after assuming
office, and thereafter, on or before the fifteenth day of April following the close of every calendar
year, as well as upon the expiration of his term of office, or upon his resignation or separation from
office, shall prepare and file with the office of corresponding Department Head, or in the case of a
Head Department or chief of an independent office, with the Office of the President, a true, detailed
and sworn statement of the amounts and sources of his income, the amounts of his personal and
family expenses and the amount of income taxes paid for the nest preceding calendar year:
Provided, That public officers assuming office less than two months before the end of the calendar
year, may file their first statement on or before the fifteenth day of April following the close of said
calendar year.
Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth. - If in accordance with
the provisions of Republic Act Numbered One Thousand Three Hundred Seventy-Nine, a public
official has been found to have acquired during his incumbency, whether in his name or in the name
of other persons, an amount of property and/or money manifestly out of proportion to his salary and
to his other lawful income, that fact shall be ground for dismissal or removal. Properties in the name
of the souse and dependents of such public official may be taken into consideration, when their
acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of
or manifestly excessive expenditures incurred by the public official, his spouse or any of their
dependents including but not limited to activities in any club or association or any ostentatious
display of wealth including frequent travel abroad on a non-official character by any public official
when such activities entail expenses evidently out of proportion to legitimate income, shall likewise
be taken into consideration in the enforcement of this Section, notwithstanding any provision of law
to the contrary. The circumstances hereinabove mentioned shall constitute valid ground for the
administrative suspension of the public official concerned for an indefinite period until
the
investigation of the unexplained wealth is completed.
In Ombudsman v. Valeroso, the Court explained fully the significance of these provisions, to wit:
Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be suppressed and
avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of
preventing said evil and is aimed particularly at curtailing and minimizing, the opportunity for official
corruption and maintaining a standard of honesty in the public service. "Unexplained" matter
normally results from "non-disclosure" or concealment of vital facts. SALN, which all public officials
and employees are mandated to file, are the means to achieve the policy of accountability of all
public officers and employees in the government. By the SALN, the public are able to monitor
movement in the fortune of a public official; it is a valid check and balance mechanism to verify
undisclosed properties and wealth.
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Petitioner is charged with gross misconduct and dishonesty for failing to comply with Section 7 of
the Anti-Graft and Corrupt Practices, and Section 8 of the Code of Conduct and Ethical Standards
for Public Officials and Employees, requiring the submission of a statement of assets and liabilities
by a public officer or employee.
As for gross misconduct, the adjective is "gross" or serious, important, weighty, momentous and not
trifling; while the noun is "misconduct," defined as a transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross negligence by the public officer. The
word "misconduct" implies a wrongful intention and not a mere error of judgment. For gross
misconduct to exist, there must be reliable evidence showing that the acts complained of were
corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known
legal rules.
And as for dishonesty, it is committed by intentionally making a false statement in any material fact,
or practicing or attempting to practice any deception or fraud in securing his examination,
registration, appointment or promotion. Dishonesty is understood to imply a disposition to lie,
cheat, deceive, or defraud; untrustworthiness; lack of integrity.
Clear from the foregoing legal definitions of gross misconduct and dishonesty is that intention is an
important element in both. Petitioner's candid admission of his shortcomings in properly and
completely filling out his SALN, his endeavor to clarify the entries therein and provide all other
necessary information, and his submission of supporting documents as to the acquisition of the real
properties in his and his wife's names, negate any intention on his part to conceal his properties.
Furthermore, in view of the Court's findings that these properties were lawfully acquired; there is
simply no justification for petitioner to hide them. Missing the essential element of intent to commit
a wrong, the Court cannot declare petitioner guilty of gross misconduct and dishonesty.
Neither can petitioner's failure to answer the question, "Do you have any business interest and other
financial connections including those of your spouse and unmarried children living in your house
hold?" be tantamount to gross misconduct or dishonesty. On the front page of petitioner's 2002
SALN, it is already clearly stated that his wife is a businesswoman, and it can be logically deducted
that she had business interests. Such a statement of his wife's occupation would be inconsistent
with the intention to conceal his and his wife's business interests. That petitioner and/or his wife
had business interests is thus readily apparent on the face of the SALN; it is just that the missing
particulars may be subject of an inquiry or investigation.
An act done in good faith, which constitutes only an error of judgment and for no ulterior motives
and/or purposes, does not qualify as gross misconduct, and is merely simple negligence. Thus, at
most, petitioner is guilty of negligence for having failed to ascertain that his SALN was accomplished
properly, accurately, and in more detail.
Rabe vs. Flores, (A.M. OCA IPI No. 97-1247, 272 SCRA 415 (1997])
Section 8 of Republic Act No. 6713 provides that it is the "obligation" of an employee to submit a
sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and
financial and business interests. Section 11 of the same law prescribes the criminal and
administrative penalty for violation of any provision thereof. Paragraph (b) of Section 11 provides
that "(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause
for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted
against him."
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In the present case, the failure of respondent to disclose her business interest which she herself
admitted and is inexcusable and is a clear violation of Republic Act No. 6713.
In her explanation, respondent maintains the position that she has no business interest, implicitly
contending that there is nothing to divulge or divest from. As discussed above, respondent had a
business interest. We do not find her administratively liable, however, for failure to divest herself of
the said interest. The requirement for public officers, in general, to divest themselves of business
interests upon assumption of a public office is prompted by the need to avoid conflict of interests.
In the absence of any showing that a business interest will result in a conflict of interest, divestment
of the same is unnecessary. In the present case, it seems a bit far-fetched to imagine that there is a
conflict of interest because an Interpreter III of the Regional Trial Court has a stall in the market. A
court, generally, is not engaged in the regulation of a public market, nor does it concern itself with
the activities thereof. While respondent may not be compelled to divest herself of her business
interest, she had the legal obligation of divulging it.
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the scope of office that are in good faith and are not reckless, malicious, or
corrupt. Even mistakes are not actionable as long as it is not shown that
they were motivated by malice or gross negligence amounting to bad faith.
(Philippine Racing Club, Inc. v. Bonifacio, 109 Phil 233 (1960); Lumayana v.
Commission on Audit, 601 SCRA 163 (2009))
c.
A public officer may secure the services of private counsel in an action filed
against him in his official capacity if the damages sought in the action, if
granted, could result in his personal liability. (Mancenido v. Court of
Appeals, 330 SCRA 419 (2000))
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a.
If the individual is damaged by the violation, the official shall, in some cases,
be held civilly liable to reimburse the injured party.
2. Criminal
a. If the law attaches a penal sanction, the officer may be punished criminally.
3. Administrative
a. If the administrations disciplinary power is strong, violation may lead to fine,
reprimand, suspension, or removal from office.
b. The issue in administrative cases is not whether the complainant has a
cause of action against the respondent public officer or employee but
whether the latter has breached the norms and standards of public service.
c.
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c.
d. Right to counsel
1. The assistance of counsel is not indispensable in administrative proceedings.
e. Effect of death
1. The death of the respondent in an administrative case does not preclude a
finding of administrative liability.
2. Exceptions (the death of the respondent necessitates the dismissal of the
administrative case upon a consideration of any of the following factors):
a. Observance of respondents right to due process
b. Presence of exceptional circumstances in the case on the grounds of
equitable and humanitarian reasons.
8. Administrative liability incurred in a previous term by an elective official
a. Reelection operates as electorate condonation of a previous misconduct
1. Once reelected, an elective official is no longer amenable to administrative
sanctions for infractions allegedly committed during the preceding term.
2. The condonation rule is applied regardless of the date of filing of the
administrative complaint as long as the wrongdoing is committed prior to the
date of reelection.
b. Condonation does not extend to reappointed coterminous employees
1. The condonation rule is inapplicable to appointive officials, such as reappointed
coterminous employees, as there is no subversion of the sovereign will nor the
disenfranchisement of the electorate in the case of appointive officials.
c.
B. Civil liability
1. Requisites for recovery of damages arising from acts of public officers
a. In order to create the right of action for recovery of damages arising from acts of
public officers, 2 things must concur:
1. Damage to himself (the individual suffered some special and peculiar injury from
the wrongful act complained of); and
2. Wrong or violation of the right of a party committed by the other.
b. Liability is only in their official capacity. No judgment can be rendered to make them
personally liable, unless there is an allegation in the complaint that such officials
have maliciously and in bad faith acted outside the scope of their official authority or
jurisdiction.
c.
Public officer shall not be liable for moral and exemplary damages for acts done in
the performance of official duties, unless there is a clear showing of bad faith,
malice, or gross negligence.
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b. Members of Congress are not only exempt from general liability but they are also
accorded special privileges as follows:
a. Privilege from arrest while Congress is in session for offenses punishable by
not more than 6 years imprisonment
b. Exempt from liability for any speech or debate in Congress, or in any
committee thereof.
c.
These privileges are designed not to protect members from prosecution but to
enable the representatives to execute the functions of their office without fear of
prosecution, and to ensure freedom from executive or judicial encroachment.
d. The immunity extends to all grades of legislative action (i.e., Congress and local
legislative bodies).
e.
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welfare and prosperity of the people. The performance of duty is owing to the
public and not to individuals.
2. They would not perform their duties timidly if every dissatisfied person would be
allowed to compel them to vindicate the wisdom of their enactments in an
action for damages.
6. Liability of members of the judiciary for official acts
a. General rule: A judge is not liable for acts done in the exercise of judicial function.
1. No civil action (or administrative sanction) can be sustained against a judicial
officer for the recovery of damages by one claiming to have been injured by the
officers judicial action within his jurisdiction.
2. The officer is required by law to exercise his judgment, and the law holds his
duty to the individual to be performed when he has exercised it, however
erroneous or disastrous it may seem.
b. Exception: the immunity does not apply to acts that are purely ministerial in nature.
c.
f.
2. Insofar as a judge acts within his judicial authority, his immunity from civil liability
is held not affected by bad faith, malice, or corrupt motives. If the judge is, in
fact, corrupt, the public has its remedy, but the defeated suitor cannot be
permitted to obtain redress against the judge by alleging that the judgment
against him was the result of corrupt or malicious motives.
d. Liability for rendering an unjust judgment
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f.
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d. General rule: Good faith and absence of malice constitute no defense in an action to
hold a ministerial officer liable for damages caused by his nonfeasance or
misfeasance.
10. Liability of superior officer for acts of subordinates
a. General rule: Public officers, in the performance of their functions, are not civilly
liable to 3rd persons, either for the misfeasance or positive wrongs, or for the
nonfeasance, negligence, or omissions of duty of their subordinates. Negligence of
subordinates cannot always be ascribed to their superior in the absence of the
latters own negligence.
b. Exceptions
1. He is charged with the duty of employing / retaining his subordinates, and he
negligently or willfully employs / retains unfit or improper persons.
2. He is charged with the duty to see that they are appointed or qualified in a
proper name, and he negligently or willfully fails to require them to comply with
the prescribed regulations.
3. He carelessly or negligently oversees or conducts the business of his office as
to furnish the opportunity for default.
4. A fortiori, where he directed, authorized, or cooperated in the wrong.
5. Where liability is expressly provided in the statute.
c.
Other exceptions
1. A superior is also liable for the misconduct or negligence within the scope of the
employment of those employed by or under him voluntarily or privately, and paid
by or responsible to him.
121
capacity. An officer committing the tort is personally liable therefore, and may be sued as any other
citizen and held answerable for whatever injury or damage results from his tortuous acts.
An officer who acts outside the scope of his jurisdiction and without authorization of law may
thereby render himself amenable to personal liability in a civil suit. If he exceeds the power
conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under
color of office, and not personally. In the eyes of the law, his acts are wholly without authority.
Concepcion, dissenting:
The allegations of the complaint, which emphasizes that the acts complained of were done by
respondent as director of the Bureau of Public Works, clearly shows that he was being sued in his
official capacity. Moreover, in praying that the land be restored to him, plaintiff seeks to divest the
government of its possession of the irrigation canal. The government is, therefore, the real party in
interest.
123
the State is liable only for torts caused by its special agents specially commissioned to carry out
acts complained of outside of such agents regular duties. There being no proof that the making of
the tortuous inducement was authorized, neither the State nor its funds can be made liable therefor.
The master-servant doctrine in tort law does not apply. B was not working overtime as a
government employee; he was merely moonlighting. A supervisor who merely tolerates his
subordinates to moonlight on a non-working day in their office premises may not be held liable for
everything that happens on that day. No showing of any gain by G, either; its more plausible that he
permitted work on a Saturday because he wanted the compound cleared of the junk, and the best
time for the same to be done is on a non-working day.
Reviewer!on!Law!on!Public!Officers!
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(4)
(5)
(6)
(7)
not a prima facie case exists. Vested with authority and discretion to determine whether there is
sufficient evidence to justify the filing of the information, and having control of the prosecution of a
criminal case, the fiscal cannot be subjected to dictation from the offended party.
c.
When a member of a city or municipal police force refuses or fails to render aid or protection to any
person in case of danger to life or property, such peace officer shall be primarily liable for damages,
and the city or municipality shall be subsidiarily responsible therefor. The civil action herein
recognized shall be independent of any criminal proceedings, and a preponderance of evidence
shall suffice to support such action. (Civil Code, Article 34)
126
Petitioner was sued both in her official and personal capacity for her continued refusal to restore
respondent to his position in spite of the final and executory decision of the Civil Service
Commission, declaring that respondents transfer / demotion was null and void, hence illegal.
Petitioner is personally liable for the award of moral and exemplary damages for committing an
actionable wrong by unjustifiably refusing or neglecting to perform an official duty. Under Article 27,
in relation to Articles 2217 and 2219 of the Civil Code, a public officer may be liable for moral
damages for as long as those suffered by private respondent were the proximate result of
petitioners wrongful act or omission, i.e., refusal to perform a public duty or neglect in the
performance thereof.
Considering that the culprit here is a public official, propriety of exemplary damages cannot be
questioned. It serves as an example or deterrent so that other public officials can be always
reminded that they are public servants bound to adhere faithfully to the constitutional injunction that
a public office is a public trust. That the aggrieved party is also a public official does not mitigate the
effects of petitioners having failed to observe the required degree of accountability and
responsibility.
The allegations clearly show that petitioner was sued both in her official and private capacities.
Thus, she is personally liable to respondent.
Whenever any public officer or employee has acquired during his incumbency an amount of
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property which is manifestly out of proportion to his salary as a public officer or employee and to his
other lawful income and the income from legitimately acquired property, said property shall be
presumed prima facie to have been unlawfully acquired. The Solicitor General, upon complaint by
any taxpayer to the city or provincial fiscal who shall conduct a previous inquiry similar to preliminary
investigations in criminal cases and shall certify to the Solicitor General that there has been
committed a violation of the Act and the respondent is probably guilty thereof, shall file, in the name
and on behalf of the Republic of the Philippines, in the [Regional Trial Court] of the city or province
where said public officer or employee resides or holds office, a petition for a writ commanding said
officer or employee to show cause why the property aforesaid, or any part thereof, should not be
declared property of the State. (Republic Act No. 1379, Section 2)
1. It creates a presumption juris tantum against the public officer or employee who
acquires property grossly disproportionate to his income (i.e., that the property
was unlawfully acquired). The presumption may be rebutted by showing to the
satisfaction of the court that his acquisition of the property was lawful.
2. The courts are not bound by the statement of assets and liabilities filed by the
public officer or employee, as the latter is afforded every opportunity to explain
how he had acquired the property in question.
3. Forfeiture proceedings are actions in rem and are civil in nature. A full-blown
trial is not required.
b. Republic Act 3019 penalizes certain acts of public officers and private persons alike
which constitute graft or corrupt practices or which may lead thereto.
If in accordance with the provisions of Republic Act Numbered One thousand three hundred
seventy-nine, a public official has been found to have acquired during his incumbency, whether in
his name or in the name of other persons, an amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or
removal. Properties in the name of the spouse and unmarried children of such public official may be
taken into consideration, when their acquisition through legitimate means cannot be satisfactorily
shown. Bank deposits shall be taken into consideration in the enforcement of this section,
notwithstanding any provision of law to the contrary. (Republic Act No. 3019, Section 8)
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Republic vs. Sandiganbayan, et al., (G.R. 152154, November 18, 2003, Resolution on the
Respondents' Motion for Reconsideration)
A forfeiture proceeding is an action in rem, against the thing itself instead of against the person.
Being civil in character, it requires no more than a preponderance of evidence. And by
preponderance of evidence is meant that the evidence as a whole adduced by one side is superior
to that of the other. Hence, the factual findings of the court in a previous decision will, as a
consequence, neither affect nor do away with the requirement of having to prove her guilt beyond
reasonable doubt in the criminal cases against her.
Garcia vs. Sandiganbayan, et al., (G.R. No. 165835, June 22, 2005)
Under R.A. No. 8249, the Sandiganbayan is vested with exclusive original jurisdiction in all cases
involving violations of R.A. No. 1379, and Chapter II, Sec. 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the following positions whether in a
permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of
the executive branch occupying the positions of regional director and higher, otherwise classified as
Grade '27' and higher, of the Compensation and Position Classification Act of 989 (R.A. No. 6758),
specifically including: (a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads; (b)
City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
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engineers, and other city department heads; (c) Officials of the diplomatic service occupying the
position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all
officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent or higher; (f) City and
provincial prosecutors and their assistants, and officials and prosecutors in the Office of the
Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state universities or educational institutions or
foundations; (2) Members of Congress and officials thereof classified as Grade '27' and up under the
Compensation and Position Classification Act of 1989; (3) Members of the judiciary without
prejudice to the provision of the Constitution; (4) Chairmen and members of Constitutional
Commission, without prejudice to the provisions of the Constitution; and (5) All other national and
local officials classified as Grade '2' and higher under the Compensation and Position Classification
Act of 1989.
The civil nature of an action for forfeiture was first recognized in Republic v. Sandiganbayan, thus:
"The rule is settled that forfeiture proceedings are actions in rem and, therefore, civil in nature."
Then, Almeda, Sr. v. Perez, followed, holding that the proceedings under R.A. No. 1379 do not
terminate in the imposition of a penalty but merely in the forfeiture of the properties in favor of the
State. It noted that the procedure outlined in the law leading to forfeiture is that provided for in a
civil action.
Ong et. al vs. Sandiganbayan, et. al., (G.R. No. 126858, September 16, 2005)
The attacks against the constitutionality of RA 1379 because it is vague, violates the presumption of
innocence and the right against self-incrimination, and breaches the authority and prerogative of the
Supreme Court to promulgate rules concerning the protection and enforcement of constitutional
rights, are unmeritorious.
The law is not vague as it defines with sufficient particularity unlawfully acquired property of a public
officer or employee as that "which is manifestly our of proportion to his salary as such public officer
or employee and to his other lawful income and the income from legitimately acquired property." It
also provides a definition of what is legitimately acquired property. Based on these parameters, the
public is given fair notice of what acts are proscribed. The law, therefore, does not offend the basic
concept of fairness and the due process of the Constitution.
Neither is the presumption of innocence clause violated by Sec. 2 of RA 1379 which states that
property acquired by a public officer or employee during his incumbency in an amount which is
manifestly out of proportion to his salary as such public officer or employee and to his other lawful
income and the income from legitimately acquired property shall be presumed prima facie to have
been unlawfully acquired. As elaborated by Fr. Joaquin Bernas, under the principle of presumption
of innocence, it is merely required of the State to establish a prima facie case, after which the
burden of proof shifts to the accused.
Heirs of Gregorio Licaros vs. Sandiganbayan, et al, (G.R. No. 157438, October 18, 2004)
The instant action for reconveyance, restitution, and accounting impleads the Estate/Heirs of
Gregorio Licaros for previous acts committed by the decedent during his lifetime, more particularly
for conspiring with the main defendants to prejudice the Republic. An action to recover ill-gotten
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wealth is outside the purview of the ordinary rules on prescription, as contained in Article 1146 of the
Civil Code. Section 15 of Article XI of the 1987 Constitution states:
Section 15. The right of the State to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall not be barred by
prescription,
laches or estoppel.
The intendment of the foregoing constitutional provision -- exempting actions to recover ill-gotten
wealth from the operation of the general rules of prescription -- presumably lies in the special
attendant circumstances and the primordial state interest involved in cases of such nature.
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C. Criminal liability
1. Generally
a. The mere fact that an officer is acting in an official capacity will not relieve him from
criminal liability.
b. Public officers may not be held criminally liable for failure to perform a duty
commanded by law when, for causes beyond their control performance is
impossible. However, the absence of corrupt intent is not a defense to an action
against an officer for misconduct, or for willful failure or refusal to perform a
mandatory ministerial duty.
c.
The mere expiration of his term of office will not prevent the prosecution and
punishment of the public officer for misdemeanor committed in office, nor does
reelection extinguish the criminal liability incurred by him during his previous term of
office. (Conducto v. Monzon, 291 SCRA 619 (1998); Ingco v. Sanchez, 21 SCRA
1292 (1967); Luciano v. The Provincial Governor, 28 SCRA 517 (1969))
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c.
(a) Any public official or employee, regardless of whether or not he holds office or employment in a
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casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act
shall be punished with a fine not exceeding the equivalent of six (6) months' salary or suspension not
exceeding one (1) year, or removal depending on the gravity of the offense after due notice and
hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under
another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this
Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five
thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction,
disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for
removal or dismissal of a public official or employee, even if no criminal prosecution is instituted
against him.
(c) Private individuals who participate in conspiracy as co-principals, accomplices or accessories,
with public officials or employees, in violation of this Act, shall be subject to the same penal liabilities
as the public officials or employees and shall be tried jointly with them.
(d) The official or employee concerned may bring an action against any person who obtains or uses
a report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such action is
brought may assess against such person a penalty in any amount not to exceed twenty-five
thousand pesos (P25,000). If another sanction hereunder or under any other law is heavier, the latter
shall apply. (Republic Act No. 6713, Section 11)
1. The Act provides for the procedure to declare forfeited any property found to
have been unlawfully acquired by a public officer.
2. It punishes with imprisonment for a term not exceeding 5 years or a fine not
exceeding P10,000 or both such imprisonment or fine, any public officer or
employee who shall transfer or convey any unlawfully acquired property.
e.
Whoever makes any appointment or employs any person in violation of any provision of this Decree
or the rules made thereunder or whoever commits fraud, deceit or intentional misrepresentation of
material facts concerning other civil service matters, or whoever violates, refuses or neglects to
comply with any of such provisions or rules, shall upon conviction be punished by a fine not
exceeding one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine
and imprisonment in the discretion of the court. (Presidential Decree No. 807, Section 55)
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f.
Any violation of the provisions of Sections 67, 68, 89, 106, and 108 of this Code or any regulation
issued by the Commission implementing these sections, shall be punished by a fine not exceeding
one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine and
imprisonment in the discretion of the court. (Presidential Decree No. 1445, Section 128)
135
7. Those who allow, or conspire or collude with another to allow the unauthorized retrieval,
withdrawal or recall of return, statement or declaration after the same has been officially received by
the Bureau of Internal Revenue;
8. Those who, having knowledge or information of a violation of this Code or of any fraud committed
on the revenues collectible by the Bureau of Internal Revenue, fail to report such knowledge or
information to their superior officer or to report as otherwise required by law; and
9. Those who, without the authority of law, demand or accept or attempt to collect, directly or
indirectly, as payment or otherwise any sum of money or other thing of value for the compromise,
adjustment, or settlement of any charge or complaint for any violation or alleged violation of this
Code. (Presidential Decree No. 1158, Section 268)
Unlawful interest of revenue law enforcers in business. Any internal revenue officer who is or
shall become interested directly or indirectly, in the manufacture, sale, or importation of any article
subject to tax under Title IV (now VI) of this Code or in the manufacture or repair or sale of any die
for the printing, or making of stamps, or labels shall, upon conviction for each act or omission, be
fined in a sum of not less than five thousand pesos but not more than ten thousand pesos, or
imprisoned for a term of not less than two years and one day but not more than four years, or both.
(Presidential Decree No. 1158, Section 270)
Unlawful divulgence of trade secrets. Except as provided in Section 74 (now 64) of this Code
and Section 26 of Republic Act Numbered 6388, any officer or employee of the Bureau of Internal
Revenue who divulges to any person or makes known in any other manner than may be provided by
law information regarding the business, income, or estate of any taxpayer, the secrets, operation,
style or work, or apparatus of any manufacturer or producer, or confidential information regarding
the business of any taxpayer, knowledge of which was acquired by him in the discharge of his
official duties, shall upon conviction for each act or omission, be fined in a sum of not less than five
thousand pesos but not more than ten thousand pesos, or imprisoned for a term of not less than six
months but not more than five years or both. (Presidential Decree No. 1158, Section 269)
Violation of withholding tax provision. Every officer or employee of the government of the
Republic of the Philippines or any of its agencies and instrumentalities, its political subdivisions, as
well as government-owned or controlled corporation including the Central Bank who, under the
provisions of this Code or regulations promulgated thereunder, is charged with the duty to deduct
and withhold any internal revenue tax and to remit the same in accordance with the provisions of
this Code and other laws is guilty of any offense hereinbelow specified shall, upon conviction for
each act or omission, be fined in a sum of not less than five thousand pesos but not more than fifty
thousand pesos or imprisoned for a term of not less than six months and one day but not more than
two years, or both:
1. Those who fail or cause the failure to deduct and withhold any internal revenue tax under any of
the withholding tax laws and implementing regulations;
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2. Those who fail or cause the failure to remit taxes deducted and withheld within the time
prescribed by law, and implementing regulations; and
3.
Those who fail or cause the failure to file return or statement within the time prescribed, or
render or furnish a false or fraudulent return or statement required under the withholding tax laws
and regulations. (Presidential Decree No. 1158, Section 271)
a.
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Term
The time during which the officer may
claim to hold the office as of right
Fixed and definite period of time to hold
office
It is not affected by holding-over of the
incumbent after expiration of the term for
which he was appointed
Tenure
Represents the period during which the
incumbent actually holds office
It may be shorter than the term
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There was no evidence to indicate that Cristobals position was confidential in nature and thus
subject to removal by the pleasure of the appointing power. In fact, the compensation attached and
designation given to his position suggests the purely or at least mainly clerical nature of his work.
Where the term runs from a certain date, the date of the date is excluded in the
computation.
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a.
A public official ceases to hold office upon his death and all his rights and duties
and obligations are extinguished.
d. One who has not been elected or appointed to a public office cannot resign, or if
elected or appointed cannot resign until the time has arrived when he is entitled by
law to possess the same.
2. Meaning of resignation
a. Resignation is the formal renunciation or relinquishment of a public office. It
implies an expression by the incumbent in some form, express or implied, of the
intention to surrender, renounce, and relinquish his right to the office and its
acceptance by competent and lawful authority. (Gamboa v. Court of Appeals, 108
SCRA 1 (1981); Ortiz v. Commission on Elections, 162 SCRA 812 (1988); Republic v.
Singun, 548 SCRA 361 (2008))
3. Form of resignation
a. When the law requires resignation to be made in any form, that form must be
substantially complied with.
b. Where no such form is prescribed, no particular mode id required but the
resignation may be made by any method indicative of the purpose. It need not be in
writing, unless so required.
4. What constitutes resignation
a. An intention to relinquish a part of the term,
b. Accompanied by the act of relinquishment, and
c. An acceptance by the proper authority
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7. Form of acceptance
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When resignation is given as an alternative to have charges filed against the public
officer.
Where the officer is expressly authorized by law to accept another office; and
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b. A statute may declare that the mere filing of a certificate of candidacy for a second
office by the holder of one office operates as an abandonment.
c.
Abandonment may also result from the intentional and completed relinquishment of
any claim to the office.
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However,
b. The effect of both resignation and abandonment is that the former holder of an
office can no longer legally repossess or reclaim it. Both are voluntary acts.
c.
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considered as having abandoned his office as justice of the peace. (Argos v. Veloso,
83 Phil. 929 (1949))
c.
Justice of the peace left his office by a mistaken order of the judge of the Court of
First Instance and does not take the necessary steps to recover the same for some
3 years, but presents himself as a candidate for municipal president in the
meantime. (Ortiz v. De Guzman, 49 Phil. 371 (1926))
Where petitioner who was removed from office as acting chief of police without any
lawful cause accepted another position in the government service. (Agapuyan v.
Ledesma, 101 Phil. 199 (Unrep. 1957))
f.
Where a public officer accepts and enjoys his retirement benefits. (Lopez v. National
Marketing Corp., 101 Phil. 349 (1957))
g. Where a public officer for more than 5 years did not take any step to contest the
legality of his removal. (Madrid v. Auditor General, 108 Phil. 578 (1960))
h. Where the City Treasurer of Butuan who was detailed for assignment in the
Department of Finance did not object to the designation of another as acting City
Treasurer, a vacancy was created in the office of the City Treasurer of Butuan which
could be filled permanently or temporarily by the President. (Calo v. Magno, 7
SCRA 380 (1963))
i.
The continued and absolute refusal or neglect to qualify at all and to enter upon the
discharge of his duties must operate, so far as the delinquent himself is concerned,
in vacating his title to the office.
j.
Where the officer refuses or neglects to exercise the functions of the office for so
long a period as to reasonably warrant the presumption that he does not desire or
intend to perform the duties of the office at all, he will be held to have abandoned it.
k.
Where a public officer holding an office under the government, rebels against the
government and seeks or aids its overthrow.
l.
Where a public officer has been absent without leave for several months and such
absence was unexplained and unauthorized. (Tadeo v. Daquiz, 224 SCRA 656
(1993))
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Demotion
1. It refers to movement from one position to another involving the issuance of an
appointment with diminution in duties, responsibilities, status or rank which may
or may not involve reduction in salary. (Fernando v. Sto. Tomas, 234 SCRA 546
(1994))
2. Demotion to a lower rate of compensation is also equivalent to removal if no
cause is shown for it when it is not part of any disciplinary action. (Floresca v.
Ongpin, 182 SCRA 692 (1990))
d. Reassignment
1. It refers to movement of an employee from organization unit to another in the
department or agency which does not involve a reduction in rank, status, or
salary and does not require the issuance of an appointment. (compared to
demotion which involves the issuance of an appointment)
(Padolina v.
Fernandez, 340 SCRA 442 (2000))
2. Reassignment needs no prior consent and is considered valid as long as it is
done in good faith.
e.
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5. From the provision that no officer or employee in the Civil Service shall be
removed or suspended except for cause provided by law.
8. Extent of the Presidents power of removal
a. For non-career officers exercising purely executive functions whose tenure is not
fixed by law, the President may remove them with or without cause and Congress
cannot restrict this power.
b. For quasi-legislative or quasi-judicial officers, they may be removed only on grounds
provided by law to protect their independence in the discharge of their duties.
c. For constitutional officers removable only by impeachment, and judges of lower
courts, they are not subject to the removal power of the President.
d. For civil service officers, the President may remove them only for cause provided by
law.
e. For temporary, provisional, or acting appointments, they may be removed at the
pleasure of the President, with or without cause.
f. For officers holding public offices created by law which authorizes the President to
remove them at pleasure, they may be removed only for cause if they belong to the
civil service. If the law provides that they hold office at the pleasure of the
President, their replacement is not a removal but an expiration of term.
g. Where appointment is based not on usual test of merit and fitness, their tenure is
co-terminous with that of the appointing authority or subject to his pleasure.
h. With respect to local elective officials, the President cannot remove them because
he only exercises supervisory powers over them. Instead, they may be removed by
the sanggunian.
9. Civil service officers and employees entitled to security of tenure
a. Security of tenure means that an officer or employee in the civil service shall not
be suspended or dismissed except for cause as provided by law and only after due
process is accorded.
b. Ground for suspension or removal
1. The Constitution requires appointments in the civil service shall be made only
according to merit and fitness and that removal or suspension of a civil service
officer or employee shall be for cause provided by law.
c.
Substantive aspect
1. The phrase for cause provided by law means reasons which the law and
sound public policy recognizes as sufficient ground for removal or suspension or
demotion and after due process is accorded to the officer or employee.
2. It means legal cause and not merely causes which the appointing power
considers sufficient.
3. Cause must, as a general rule, relate to the functions of the office which the
officer holds or be connected with the performance of his official duties.
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d. Procedural aspect
1. The guarantee of procedural due process requires notice and opportunity to be
heard before one is disciplined. Complaint against a civil service officer or
employee must be in writing and subscribed and sworn to by the complainant if
it is to be given due course.
10. Guarantee extends to both those in career and non-career positions
a. Persons in the non-career service are so designated because the nature of their
work and qualifications are not subject to classification.
b. The constitutional and statutory guarantee of security of tenure extends to all
permanent officers and employees in the civil service, regardless of their status,
whether career or non-career.
c.
Persons in the non-career service are protected from removal or suspension without
just cause and non-observance of procedural due process.
Exception: a person holding a position at the pleasure of the appointing power, who
is removed when this pleasure turns into displeasure, or when there is loss of
confidence, is not removed for the purposes of this rule. His term merely expires.
b. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman
The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. (Constitution, Article XI, Section 2)
c.
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The Members of the Supreme Court and judges of lower courts shall hold office during good
behavior until they reach the age of seventy years or become incapacitated to discharge the duties
of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts,
or order their dismissal by a vote of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon. (Constitution, Article VIII, Section 11)
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a.
f.
The crimes charged did not constitute misconduct in office. there are 2 grounds for suspension of
municipal officers (1) those related to their office, (2) those not so related. If the crime involving
moral turpitude is not linked to official duty, final conviction is a condition precedent to
administrative action. Misconduct is defined as such which affects an officers performance of his
duties as an officer and not only as affects his character as a private individual.
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was obviously personal in nature and does not affect his official duties. While it is true that he was
convicted, the crime did not involve moral turpitude. The charges of gambling and resisting arrest
with assault on the officers arresting him cannot be the basis either because there was yet no
conviction. The alleged misconduct must be directly related to and connected with the performance
of official duties amounting to mal-administration or willful, intentional neglect and failure to
discharge the duties of an office.
16. Nepotism
a. Situations covered
1. The Civil Service Decree prohibits all appointments in the national and local
governments or any branch or instrumentality thereof, including governmentowned or controlled corporations, made in favor of a relative of the:
a. Appointing authority;
b. Recommending authority;
c. Chief of the bureau or office; or
d. Person exercising immediate supervision over the appointee.
2. Relative refers to members of the family within the 3rd degree of either
consanguinity or affinity.
b. Persons not covered
1. Persons employed in a confidential capacity;
2. Teachers;
3. Physicians;
4. Members of the Armed Forces of the Philippines;
5. Member of any family who, after his / her appointment to any position in an
office or bureau, contracts marriage with someone in the same office or bureau.
The employment or retention therein of both husband and wife may be allowed.
c.
d. Purpose of prohibition
1. The purpose of the prohibition is to ensure that all appointments and other
personnel actions in the civil service should be based on merit and fitness and
should never depend on how close or intimate an appointee is to the appointing
power.
17. Grounds for disciplinary action under the Code of Conduct and Ethical Standards
a. The following constitute grounds for administrative disciplinary action under the
Code and without prejudice to criminal and civil liabilities, regardless of whether the
official or employee holds office or employment in a casual, temporary, hold-over,
permanent or regular capacity:
1. Directly or indirectly having financial and material interest in any transaction
requiring the approval of his office. Financial and material interest is defined
as a pecuniary or proprietary interest by which a person will gain or lose
something;
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f.
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j.
Failure to act promptly on letters and request within 15 days from receipt,
except as otherwise provided in the Implementing Rules.
k.
l.
Failure to attend to anyone who wants to avail himself of the services of the
office; or to act promptly and expeditiously on public personal transactions.
m. Failure to file sworn statements of assets, liabilities and net worth, and
disclosure of business interests and financial connections.
n. Failure to resign from his position in the private business enterprise within
30 days from assumption of public office when conflict of interest arises,
and / or failure to divest himself of his shareholdings or interests in private
business enterprise within 60 days from such assumption of office when
conflict of interest arises.
b. The foregoing acts shall continue to be prohibited for a period of 1 year after
resignation, retirement or separation from public office, except item number 3
above. However, the professional concerned cannot practice his profession in
connection with any matter before the office he used to be with within 1 year after
such resignation, retirement, or separation. Violation of this rule shall be a ground
for administrative disciplinary action upon re-entry to the government service.
18. Administrative investigation of elective local officials
a. Form and filing of administrative complaints
1. A verified complaint shall be prepared as follows:
a. Complaint against any elective official of a province, a highly urbanized city,
an independent component city, or component city shall be filed before the
Office of the President.
b. Complaint against any elective official of a municipality shall be filed before
the Sangguniang Panlalawigan whose decision may be appealed to the
Office of the President.
c.
Complaint against any elective barangay official shall be filed before the
Sangguniang Panlungsod or Sangguniang Bayan concerned whose decision
shall be final and executory.
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b. Notice of hearing
1. Within 7 days after the administrative complaint is filed, the Office of the
President or the sanggunian concerned, shall require the respondent to submit
his verified answer within 15 days from receipt thereof, and commence the
investigation of the case within 10 days after receipt of such answer of
respondent.
2. When the respondent is an elective official of a province or highly urbanized city,
such hearing and investigation shall be conducted in the place where he renders
or holds office. For all other local officials, the venue shall be the place where
the sanggunian concerned is located.
3. No investigation shall be held or preventive suspension imposed within 90 days
immediately prior to any local election. If preventive suspension was imposed
prior to the 90-day period, it shall be deemed automatically lifted upon the start
of this period.
c.
Preventive suspension
1. Preventive suspension may be imposed by:
a. President: for respondent elective officials of a province, highly urbanized
city, independent component city
b. Governor: if respondent is an elective official of a component city or
municipality
c.
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e.
Rights of respondent
1. The respondent shall have full opportunity:
a. To appear and defend himself in person or by counsel;
b. To confront and cross-examine the witnesses against him;
c. To require the attendance of witnesses; and
d. To produce documentary evidence in his favor through compulsory process
f.
g. Administrative appeals
1. Decisions by the Office of the President or sanggunian may, within 30 days
from receipt thereof, be appealed to the following:
a. Sangguniang Panlalawigan:
for decisions of the sanggunian of
component cities and municipalities
b. Office of the President: for decisions of the Sangguniang Panlalawigan
and of independent component cities and highly urbanized cities
h. Execution pending appeal
1. Decisions are final and executory despite the appeal. Thus, in the event the
respondent wins the appeal, the execution of the decision will be considered as
preventive suspension and he shall be entitled to the salary and emoluments
during the period pending appeal.
2. Decisions of the Office of the President are final and executory.
3. Administrative Order No. 23 issued on December 17, 1992 prescribes the rules
and procedures applicable to administrative disciplinary cases filed against
elective local officials of provinces, highly urbanized cities, independent
component cities, component cities, and cities and municipalities in Metro
Manila.
a. The President shall act upon these complaints as Disciplining Authority and
he may act through the Executive Secretary.
b. The Secretary of the Interior and Local Government is designated as
Investigating Authority and he may constitute an Investigating Committee in
the Department for the purpose.
Administrative Order No. 23
PRESCRIBING THE RULES
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AND
PROCEDURES
ON
THE
INVESTIGATION
OF
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government officer or employee by filing a sworn written complaint against any elective local official
enumerated under Sec. 1, Rule I hereof. It may also be initiated motu proprio by the Office of the
President or any government agency duly authorized by law to ensure that local government units
(LGUs) act within their prescribed powers and functions.
Sec. 2. Form of complaint. The complaint, accompanied by affidavits of witness or evidences in
support of the charge, shall be addressed to the President. It shall be drawn in clear, simple, and
concise language and in methodical manner as to apprise the respondent of the nature of the charge
against him and to enable him to prepare his defense. The party filing the complaint shall be called
the complainant, while the official against whom the complaint is filed shall be called the respondent.
Sec. 3. Where filed. The complaint shall be filed with the Records Office, Office of the President,
Malacaang, Manila. However, for cases against elective officials of LGUs concerned outside
Metropolitan Manila, the complaint may be filed through the concerned Regional Director of the
DILG, who shall transmit the same to the Secretary of the Interior and Local Government, within
forty-eight (48) hours from receipt thereof. In this regard, the Regional Director concerned shall
authenticate all the pertinent documents presented to him.
Upon receipt of the said documents, the Secretary of the Interior and Local Government shall
transmit the same to the Office of the President, within forty-eight (48) hours from receipt of the
same.
A copy of the complaint shall be furnished to each of the following:
a) the Office of the Governor in the case of component cities;
b) the Metropolitan Manila Authority in the case of cities and municipalities in Metropolitan Manila;
and
c) the DILG in all cases.
Sec. 4. Filing fee. A fee of Two Hundred Pesos (P200.00) shall be charged for every complaint
filed with the Office of the President, payable to the "Cashier, Office of the President."
Pauper complaints duly certified as such in accordance with the Rules of Court shall be exempted
from the payment of the filing fee.
RULE 4
ANSWER
Section 1. Notice. Within seven (7) days after the complaint is filed, the Disciplining Authority shall
issue an order requiring the respondent to submit his verified answer within fifteen (15) days from his
receipt thereof. In the case of complaints filed through the DILG Regional Office, the said order shall
be coursed through the Secretary of the Interior and Local Government.
Sec. 2. Form of answer. The answer, accompanied by affidavits of witnesses or evidences in
support of the defense, shall be addressed to the President and shall be drawn in clear, simple, and
concise language and in methodical manner as to traverse the charge.
Sec. 3. Where filed. The answer shall be submitted to the Records Office, Office of the President,
Manila. However, for cases against elective officials of LGUs concerned outside Metropolitan
Manila, the answer may be submitted through the concerned Regional Director of the DILG, who
shall transmit the same to the Secretary of the Interior and Local Government, within forty-eight (48)
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hours from receipt thereof. In this regard, the Regional Director concerned shall authenticate all the
pertinent documents presented to him.
Upon receipt of the above documents, the Secretary of the Interior and Local Government shall
transmit the same to the Office of the President, within forty-eight (48) hours from receipt of the
same.
A copy of the answer shall be furnished to each of the following:
a) the complainant;
b) the Office of the Governor in the case of component cities;
c) the Metropolitan Manila Authority in the case of cities and municipalities in Metropolitan Manila;
and
d) the DILG in all cases.
Sec. 4. Failure to answer. Unreasonable failure of respondent to file his verified answer within
fifteen (15) days from receipt of the complaint against him shall be considered as waiver of his right
to present evidence in his behalf.
RULE 5
PRELIMINARY INVESTIGATION
Section 1. Commencement. Within forty-eight (48) hours from receipt of the answer, the
Disciplining Authority shall refer the complaint and answer, together with their attachments and other
relevant papers, to the Investigating Authority who shall commence the investigation of the case
within ten (10) days from receipt of the same.
Sec. 2. Failure to commence preliminary investigation. Unreasonable failure to commence the
preliminary investigation within the prescribed period by the person or persons assigned to
investigate shall be a ground for administrative disciplinary action.
Sec. 3. Evaluation. Within twenty (20) days from receipt of the complaint and answer, the
Investigating Authority shall determine whether there is a prima facie case to warrant the institution
of formal administrative proceedings.
Sec. 4. Dismissal motu propio. If the Investigating Authority determines that there is no prima
facie case to warrant the institution of formal administrative proceedings, it shall, within the same
period prescribed under the preceding Section, submit its recommendation to the Disciplining
Authority for the motu proprio dismissal of the case, together with the recommended decision,
resolution, and order.
Sec. 5. Preliminary conference. If the Investigating Authority determines that there is prima facie
case to warrant the institution of formal administrative proceedings, it shall, within the same period
prescribed under the preceding section, summon the parties to a preliminary conference to consider
the following:
a) Whether the parties desire a formal investigation or are willing to submit the case for resolution on
the basis of the evidence on record; and
b) If the parties desire a formal investigation, to consider the simplification of issues, the possibility
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Sec. 5. Automatic reinstatement. Upon expiration of the preventive suspension, the suspended
elective official shall be deemed reinstated in office without prejudice to the continuation of the
proceedings against him, which shall be terminated within one hundred twenty (120) days from the
time he was formally notified of the case against him. However, if the delay in the proceeding of the
case is due to his fault, or request, other than the appeal duly filed, the duration of such delay shall
not be counted in computing the time of termination of the case.
Sec. 6. Salary of respondent pending suspension. The respondent, who is preventively
suspended from office, shall receive no salary or compensation during such suspension; but, upon
subsequent exoneration and reinstatement, he shall be paid his full salary or compensation,
including such emoluments accruing during such suspension.
RULE 7
FORMAL INVESTIGATION
Section 1. Procedural due process. The respondent shall be accorded full opportunity to appear
and defend himself in person or by counsel, to confront and cross-examine the witnesses against
him, and to require the attendance of witnesses and the production of documents through the
compulsory process of subpoena or subpoena duces tecum.
Sec. 2. Who conducts the hearing. The formal administrative investigation shall be conducted by
the Investigating Authority.
Sec. 3. Failure to commence formal investigation. Unreasonable failure to commence the formal
investigation within the prescribed period in the preliminary conference order by the person or
persons assigned to investigate shall be aground for administrative disciplinary action.
Sec. 4. Power to take testimony or receive evidence. The Investigating Authority is hereby
authorized to take testimony or receive evidence relevant to the administrative proceedings, which
authority shall include the power to administer oaths, summon witnesses, and require the production
of documents by subpoena duces tecum pursuant to Book 1, Chapter 9, Section 37 of the
Administrative Code of 1987.
Anyone who, without lawful excuse, fails to appear upon summons issued under authority of the
preceding paragraph or who, appearing before the Investigating Authority exercising the power
therein defined, refuses to make oath, give testimony or produce documents for inspection, when
lawfully required, shall be subject to discipline as in case of contempt of court and, upon application
by the Investigating Authority, shall be dealt with by the judge of the proper regional trial court in the
manner provided for under Book VII, Chapter 3, Section 13, in relation to Chapter 1, Section 2 (1), of
the Administrative Code of 1987.
Sec. 5. Notice of hearing. The parties and their witnesses shall be notified by subpoena of the
scheduled hearing at least five (5) days before the date thereof, stating the date, time and place of
the hearing.
Sec. 6. Venue of hearing. When the respondent is an elective official of a province or highly
urbanized city, the formal investigation as contemplated in this Rule shall be conducted in the place
where he renders or holds office. For all other local elective officials, the venue shall be the place
where the sanggunian concerned is located.
Sec. 7. Request for subpoena. If a party desires the attendance of a witness or the production of
documents, he should make formally request for the issuance of the necessary subpoena or
subpoena duces tecum at least three (3) days before the scheduled hearing.
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170
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said decision shall immediately be furnished the respondent and all interested parties.
Sec. 2. Finality of decision. The decision of the Disciplining Authority shall become final and
executory after the lapse of thirty (30) days from receipt of a copy thereof by the complainant or the
respondent, as the case may be, unless a motion for reconsideration is filed within the said such
period. Save in exceptionally meritorious cases, only one motion for reconsideration by any one
party shall be allowed, which shall suspend the running of the 30-day reglementary period.
Sec. 3. Execution pending appeal. An appeal shall not prevent a decision from becoming final or
executory. The respondent shall be considered as having been placed under preventive suspension
during the pendency of an appeal. In the event the appeal results in an exoneration, the respondent
shall be paid his salary and such other emoluments accruing during the pendency of the appeal.
RULE 11
PENALTIES
Section 1. Suspension or removal. A respondent found guilty of any of the offenses enumerated
in Rule 2 hereof may be meted the penalty of suspension or removal depending on the evidence
presented and the aggravating or mitigating circumstances that may be considered by the
Disciplining Authority.
Sec. 2. Suspension. The penalty of suspension shall not exceed the unexpired term of the
respondent, or a period of six (6) months for every administrative offense, nor shall said penalty be a
bar to the candidacy of the respondent so suspended as long as he meets the qualifications
required for the office.
Sec. 3. Removal. An elective local official may be removed from office on the grounds
enumerated in Rule 2 hereof by order of the proper court or the Disciplining Authority whichever first
acquires jurisdiction to the exclusion of the other.
The penalty or removal from office as a result of an administrative investigation shall be considered a
bar to the candidacy of the respondent for any elective position.
RULE 12
EXECUTIVE CLEMENCY
Section 1. Removal of administrative penalties or disabilities. In meritorious cases, the President
may, after his decision has become final and executory, commute or remove administrative penalties
and disabilities imposed upon elective local officials in administrative disciplinary cases, subject to
such terms and conditions as he may imposed in the interest of the service.
RULE 13
MISCELLANEOUS PROVISIONS
Section 1. Effects and application of relevant laws. This Administrative Order implements the
Local Government Code of 1991 and its Implementing Rules and Regulations approved and
adopted under Administrative Order No. 270 dated February 21, 1992; Book VI, Chapter 3, Sections
10-16 of the Administrative Code of 1983; and Executive Order No. 26 dated October 7, 1992. In all
matters not provided in this Administrative Order, the Rules of Court and the 1987 Administrative
Code shall apply in a suppletory character.
Sec. 2. Repeal. Administrative Order No. 195 dated September 10, 1990, as amended by
Administrative Order No. 239 dated September 27, 1991, is hereby repealed.
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Sec. 3. Effectivity. This Administrative Order shall take effect fifteen (15) days from publication in
the Official Gazette.
173
These rights are reiterated in the implementing rules and regulations of the Local Government Code
and in Administrative Order no. 23. Petitioner formally claimed his right to a formal investigation
after his answer ad cautelam was admitted.
Petitioners right to a formal investigation was not satisfied when complaint against him was decided
on the basis of position papers. Administrative Order No. 23 states that the investigating authority
may require the parties to submit their respective memoranda but only after formal investigation and
hearing.
The jurisprudence cited by the DILG in its order denying petitioners motion for formal investigation
applies to appointive officials and employees. Administrative disciplinary proceedings against
elective or government officials are not exactly similar to those against appointive officials. Indeed,
the provisions applicable to these 2 groups are separate and distinct; generally, the Local
Government Code for elective officials and the Civil Service Law for appointive officials.
Rules on removal and suspension of elective officials are more stringent than those for appointive
officials. The procedure of requiring position papers in lieu of a hearing in administrative cases is
expressly allowed with respect to appointive officials but not to those elected.
Jurisdiction over administrative disciplinary action against elective officials is lodged in 2 authorities:
the disciplining authority and the investigating authority,
The disciplining authority is the President, whether acting by himself or through the Executive
Secretary. Administrative Order No. 23 delegates the power to investigate to the investigating
authority, which is the DILG Secretary, who may act by himself or constitute an investigating
committee, or the disciplining authority may designate a special investigating committee.
This is not undue delegation because the President remains the disciplining authority. What is
delegated is the power to investigate only. Moreover, the DILGs power to investigate is based on
the alter-ego principle or the doctrine of qualified political agency.
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Administrative investigation
1. It may be conducted by a person or committee duly authorized by the local chief
executive. Findings and recommendations made must be submitted to the local
chief executive within 15 days from the end of the hearings conducted. A
decision shall be made within 90 days from the time the respondent is formally
notified of the charges.
d. Disciplinary jurisdiction
1. The local chief executive may impose the following penalties upon subordinate
officials and employees under his jurisdiction:
a. Removal from service;
b. Demotion in rank;
c. Suspension for not more than 1 year without pay;
d. Fine in an amount not exceeding 6 months salary;
e. Reprimand
2. If the penalty imposed is suspension without pay for not more than 30 days, his
decision shall be final.
3. If the penalty imposed is heavier than suspension of 30 days, the decision shall
be appealable to the Civil Service Commission, which shall decide the appeal
within 30 days from receipt thereof.
e.
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f.
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177
d. The investigation shall be held neither earlier than 5 days nor later
than 10 days from the disciplining authoritys receipt of
respondents answer. The investigation shall be finished within 30
days from the filing of the charges, unless extended by the
Commission in meritorious cases.
e.
178
a.
d. Every officer charged with the resolution of cases or incidents shall submit
to his immediate superior within 10 days following the end of every month a
Sworn Statement of Disposition of Cases stating all cases or incidents
submitted to him for resolution and which have been decided during the
prescribed period.
e.
Only one motion for reconsideration is allowed which shall be decided within
15 days from submission for resolution. No other motion is allowed except
the motion for reconsideration and opposition to it.
f.
Cases and incidents pending resolution upon the effectivity of the E.O. shall
be decided within 30 days from the E.O.s effectivity.
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g. The salary of any officer who fails to submit the Statement of Disposition of
Cases within the prescribed period shall be held by his superior until the
said officer complies with paragraph (d) above, without prejudice to
imposition of other appropriate penalties as provided by law.
2. Abbreviation of proceedings
a. All administrative agencies are directed to adopt and include in their
respective Rules of Procedure the following proceedings:
1. Rules encouraging parties and their counsels to enter into amicable
settlement, compromise and arbitration.
2. Rules adopting the mandatory use of affidavits in lieu of direct
testimonies and the preferred use of depositions whenever practicable
and convenient.
3. Rules requiring the parties to submit, in addition to the memorandum
position paper or last pleading required, a draft of the decision they
seek, stating clearly the facts and the law upon which it is based.
4. Rules avoiding postponements of hearings or trials and other dilatory
tactics which the parties or their counsels might employ.
3. Applicability
a. These rules shall apply to government agencies including any department,
bureau, board, office, commission, authority or officer of the National
Government authorized by law or executive order to adjudicate cases.
b. These rules shall not apply to Congress, the Judiciary, the Constitutional
Commissions, military establishments in all matters relating to the Armed
Forces Personnel, Board of Pardons and Parole, and state universities and
colleges.
25. Merit System Protection Board
a. The MSPB is composed of a Chairman and 2 members. It is intended to be an
office in the Civil Service Commission, a part of its internal structure and
organization.
b. Powers and functions
1. Hear and decide cases involving employers and employees of the Civil Service
Commission. Its decision shall be final except those involving dismissal or
separation from the service which may be appealed to the Commission.
2. Hear and decide cases brought before it by officers and employees who feel
aggrieved by the determination of appointing authorities involving personnel
action and violation of the merit systems. The decision of the Board is final
except those involving division chiefs or officials of higher ranks which may be
appealed to the Commission.
3. Directly take cognizance of complaints affecting functions of the Commission,
those which are unacted upon by the agencies, and such other complaints
which require direct action by the Board.
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4. If the investigation is not finished and a decision is not rendered within that
period, the suspension will be lifted and respondent will be automatically
reinstated.
c.
Any public officer against whom any criminal prosecution under a valid information under this Act or
under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended
from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in the meantime administrative
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proceedings have been filed against him. (Republic Act No. 3019, Section 13)
1. Section 13 of Republic Act No. 3019 provides that the accused public official
shall be suspended from office while the criminal prosecution is pending in
court. The term office applies to any office which the officer charged might
concurrently be holding and not necessarily the particular office under which he
was charged.
2. A law granting preventive suspension is procedural, not penal. Thus, it must be
construed liberally.
3. The law does not require that the guilt of the accused must be established in a
pre-suspension proceeding to determine (1) the strength of evidence of
culpability, (2) the gravity of the offense charged, (3) whether or not his
continuance in office would influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence before the court could
have a valid basis in decreeing preventive suspension pending the trial of the
case.
f.
g. Duration of suspension
1. Suspension may not be for an indefinite period or for an unreasonable length of
time. The duration of preventive suspension is co-equal with the period
prescribed for deciding administrative disciplinary cases. If the case is decided
before 90 days, then the suspension will last less than 90 days. But if the case
is not decided within 90 days, then the suspension may not exceed the
maximum period of 90 days.
2. When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period
of 90 days after the date of suspension of the respondent who is not a
presidential appointee, the respondent shall be automatically reinstated in the
service. However, the period may be interrupted when the delay in the
disposition of the case is the respondents fault.
3. An employee who is exonerated is not entitled to the payment of his salaries
because his suspension, being authorized by law cannot be unjustified.
h. In the case of members of the Philippine National Police
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Upon the filing of a complaint or information sufficient in form and substance against a member of
the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day or more,
the court shall immediately suspend the accused from office until the case is terminated. Such case
shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment
of the accused. (Republic Act No. 6975, Section 47)
1. The suspension from the office of a member of the Philippine National Police
charged with a grave offense, where the penalty is 6 years and 1 day or more,
shall last until the termination of the case. The suspension cannot be lifted
before the termination of the case although trial is not terminated within the
period.
i.
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3. It is also intended to limit the period of suspension that may be imposed by the
mayor, a governor, or the President, who may be motivated by partisan political
consideration. In contrast, the Ombudsman, who can impose a longer period, is
not likely to be similarly motivated by partisan political consideration.
j.
k.
The Ombudsman or his Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the
charge against such officer or employee involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition
of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided. (Republic Act No. 6770, Section 24)
1. Under Section 24 of Republic Act No. 6770, the Ombudsman may suspend,
under certain conditions, any officer or employee under his authority pending an
investigation and the preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman, but not more than 6 months
without pay, except when the delay in the disposition of the case is due to his
fault, in which case, the period of the delay shall not be counted in computing
the period. The longer period was meant to meaningfully implement the
authority of the Ombudsman.
l.
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1. The order of suspension prescribed under Section 13 of Republic Act No. 3019
is distinct from the power of Congress to discipline its own ranks under Section
16(3), Article VI of the Constitution. The suspension contemplated under the
relevant provision of the Constitution is a punitive measure imposed upon
determination by the Senate or House or Representatives upon an erring
member.
2. The suspension under Section 13, Republic Act No. 3019 is not a penalty, but a
preliminary, preventive measure that may be imposed for misbehavior on a
respondent as a Member of Congress.
As to time of imposition
1. Suspension, not being a penalty, may be imposed pending investigation.
Removal, being a penalty, is meted upon termination of the investigation or final
termination of the case.
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k.
l.
2. Suspension from 6 months and 1 day to 1 year for the first offense, and
dismissal for the second offense
a. Oppression
b. Disgraceful and immoral conduct
c. Inefficiency and incompetence in the performance of official duties
d. Frequent, unauthorized absences and tardiness in reporting for duty, loafing
or frequent unauthorized absences from duty during regular office hours
e. Refusal to perform official duty
f. Gross insubordination
g. Conduct grossly prejudicial to the best interest of service
h. Owning, controlling, managing or accepting employment as officer,
employee, consultant, counsel, broker, agent, trustee, or nominee in any
private enterprise regulated, supervised, or licensed by his office
i. Engaging in the private practice of profession, unless authorized by the
Constitution
j. Disclosing or misusing confidential or classified information officially know
to him by reason of his office and not made available to the public
k. Obtaining or using any statement filed under the Code of Conduct and
Ethical Standards for Public Officials and Employees for any purpose
contrary to morals or public policy
c.
187
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
n.
o.
p.
e.
f.
Accessory penalties
1. Dismissal shall carry with it that of cancellation of eligibility, forfeiture of leave
credits and retirement benefits and disqualification for re-employment in
government service.
2. Forced resignation shall carry with it forfeiture of leave credits and retirement
benefits and disqualification for employment in the government for a period of 1
year.
3. The fact that a public officer or employee has already been administratively
penalized is not a bar to his conviction under general penal laws.
188
Philippine army and air force colonels, naval captains and all officers of
higher rank
f.
g. City and provincial prosecutors in the office of the Ombudsman and special
prosecutor
h. Presidents, directors or trustees or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations
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i.
j.
k.
l.
190
Lacson vs. Executive Secretary, et. al. (301 SCRA 298 (1999])
Section 4 [of R.A. No. 8249] requires that the offense charged must be committed by the offender in
relation to his office in order for the Sandiganbayan to have jurisdiction over it. This jurisdictional
requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated
that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public officers
and employees, including those in government-owned or controlled corporations, "in relation to their
office as may be determined by law." This constitutional mandate was reiterated in the new (1987)
Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function
and exercise its jurisdiction as now or hereafter may be provided by law.
We held that an offense is said to have been committed in relation to the office if it (the offense is
"intimately connected" with the office of the offender and perpetrated while he was in the
performance of his official functions. This intimate relation between the offense charged and the
discharge of his official duties "must be alleged in the information."
Esteban vs. Sandiganbayan, et. al. (G.R. Nos.146646-49, March 11, 2005)
An offense is said to have been committed in relation to the office if the offense is "intimately
connected" with the office of the offender and perpetrated while he was in the performance of his
official functions. This intimate relation between the offense charged and the discharge of the
official duties must be alleged in the information. This is in accordance with the rule that the factor
that characterizes the charge is the actual recital of the facts in the complaint or information. Hence,
where the information is wanting in specific factual averments to show the intimate
relationship/connection between the offense charged and the discharge of official functions, the
Sandiganbayan has no jurisdiction over the case.
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Petitioner, as Presiding Judge of MTCC, Branch 1, Cabanatuan City, is vested with the power to
recommend the appointment of Ana May Simbajon as bookbinder. As alleged in the Amended
Informations, she was constrained to approach petitioner as she needed his recommendation. But
he imposed a condition before extending such recommendation - she should be his girlfriend and
must report daily to his office for a kiss. There can be no doubt, therefore, that petitioner used his
official position in committing the acts complained of. While it is true, as petitioner argues, that
public office is not an element of the crime of acts of lasciviousness, nonetheless, he could not have
committed the crimes were it not for the fact that as the Presiding Judge, he has the authority to
recommend her appointment as bookbinder. In other words, the crimes allegedly committed are
intimately connected with his office.
People vs. Sandiganbayan, et. al. (G.R. Nos. 147706-07, February 16, 2005)
It is not disputed that the Sandiganbayan has jurisdiction over presidents, directors or trustees, or
managers of government-owned or controlled corporations with original charters whenever charges
of graft and corruption are involved. However, a question arises whether the Sandiganbayan has
jurisdiction over the same officers in government-owned or controlled corporations organized and
incorporated under the Corporation Code.
The legislature, in mandating the inclusion of "presidents, directors or trustees, or managers of
government-owned or controlled corporations" within the jurisdiction of the Sandiganbayan, has
consistently refrained from making any distinction with respect to the manner of their creation. The
deliberate omission clearly reveals the intention of the legislature to include the presidents, directors
or trustees, or managers of both types of corporations within the jurisdiction of the Sandiganbayan
whenever they are involved in graft and corruption. Had it been otherwise, it could have simply
made the necessary distinction. But it did not. It is a basic principle of statutory construction that
when the law does not distinguish, we should not distinguish. Ubi lex non distinguit nec nos
distinguere debemos. Corollarily, Article XI Section 12 of the 1987 Constitution, on the jurisdiction of
the Ombudsman (the government's prosecutory arm against persons charged with graft and
corruption), includes officers and employees of the government-owned or controlled corporations,
likewise without any distinction.
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193
was granted the power to punish for contempt in accordance with the Rules of Court. It was given
the disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies (with the exception only of impeachable officers,
members of Congress and the Judiciary). Also, it can preventively suspend any officer under its
authority pending an investigation when the case so warrants.
Office of the Ombudsman vs. Beltran (G.R. No. 168039, June 5, 2009)
The provision in R.A. 6770 taken together reveal the manifest intent of the lawmakers to bestow on
the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the
entire gamut of administrative adjudication which entails the authority to, inter alia, receive
complaints, conduct investigations, hold hearings in accordance with the rules of procedure,
summon witnesses and require the production of documents, place under preventive suspension
public officers and employees pending an investigation, determine the appropriate penalty
imposable on erring public officers or employees as warranted by the evidence, and, necessarily,
impose the said penalty.
Hence, the full administrative disciplinary authority of the Office of the Ombudsman, including the
power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a
public officer or employee found to be at fault, is beyond contestation.
Ombudsman vs. Court of Appeals, et. al. (G.R. 167844, November 2, 2006)
In our recent ruling in Office of the Ombudsman v. Court of Appeals, we reiterated Ledesma and
expounded that taken together, the relevant provisions of R.A. No. 6770 vested petitioner with "full
administrative disciplinary authority" including the power to "determine the appropriate penalty
imposable on erring public officers or employees as warranted by evidence, and, necessarily,
impose the said penalty.
We see no reason to deviate from these rulings. They are consistent with our earlier observation that
unlike the "classical Ombudsman model" whose function is merely to "receive and process the
people's complaints against corrupt and abusive government personnel," the Philippine
Ombudsman - as protector of the people, is armed with the power to prosecute erring public officers
and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt
practices and such other offenses that may be committed by such officers and employees. The
legislature has vested him with broad powers to enable him to implement his own actions.
Ombudsman, et al vs. Valera, et al. (G.R. No. 164250, September 30, 2005)
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any public officer or employee when such an act or
omission appears to be illegal, unjust, improper, or inefficient... On the other hand, ...the Office of the
Special Prosecutor is merely a component of the Office of the Ombudsman and may act only under
the supervision and control and upon the authority of the Ombudsman. ... Supervision means
overseeing or the power or authority of an officer to see that subordinate officers perform their
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duties. Control means the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the
former for that of the latter.
The Ombudsman, pursuant to his power of supervision and control over the Special Prosecutor,
may authorize the latter to conduct administrative investigation. While R.A. No. 670 accords the
Special Prosecutor the same rank as that of the Deputy Ombudsman, Section 24 thereof expressly
grants only to the Ombudsman and the Deputy Ombudsmen the power to place under preventive
suspension government officials and employees under their authority pending an administrative
investigation. However, if the Ombudsman delegates his authority to conduct administrative
investigation to the Special Prosecutor and the latter finds that the preventive suspension of the
public official or employee subject thereof is warranted, the Special Prosecutor may recommend to
the Ombudsman to place the said public officer or employee under preventive suspension.
Carabeo vs. Court of Appeals (G.R. No. 178000 and 178003, December 4, 2009)
Settled is the rule that prior notice and hearing are not required in the issuance of a preventive
suspension order, such suspension not being a penalty but only a preventive measure - a
preliminary step in an administrative investigation. If after such investigation, the charges are
established and the person investigated is found guilty of acts warranting his removal, then he is
removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspecting an
officer pending his investigation and before the charges against him are heard and be given an
opportunity to prove his innocence. There is nothing in the law, especially Section 24 or R.A. No.
6770 or The Ombudsman Act of 1989, which requires that notice and hearing precede the
preventive suspension of an erring public official. Also, while a preventive suspension order may
originate from a complaint, the Ombudsman is not required to furnish the respondent with a copy of
the complaint prior to ordering a preventive suspension.
Under Section 24 of RA 6770, two requisites must concur to render the preventive suspension order
valid. First, there must be a prior determination by the Ombudsman that the evidence of
respondent's guilt is strong. Second, (a) the offense charged must involve dishonesty, oppression,
grave misconduct, or neglect in the performance of duty; (b) the charges would warrant removal
from the service; or (c) the respondent's continued stay in office may prejudice the case filed against
him.
Espinosa, et al. vs. Office of the Ombudsman (343 SCRA 744 [2000])
The Office of the Ombudsman has the sole power to "investigate and prosecute on its own or on
complaint by any person, any act or omission of any public officer or employee , office, or agency,
when such act or omission appears to be illegal, unjust, improper, or inefficient." The Court has
refused to interfere with the Office of the Ombudsman in disapproving the findings of its special
prosecutors, promulgating its own rules of procedure, summarily dismissing complaints without
going through preliminary investigation, issuing orders without giving parties a prior oral hearing, and
even dismissing criminal cases filed against "a series of nine City Prosecutors who tossed the
responsibility of conducting a preliminary investigation to each other with contradictory
recommendations, 'ping-pong' style," among others.
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The Court will likewise refuse to interfere in the instant case. The power to withdraw the information
already filed is a mere adjunct or consequence of the Ombudman's overall power to prosecute. It is
subject of course, to the approval of the Sandiganbayan. As with any other criminal case, once the
same has been filed with the court, it is that court, and no longer the prosecution, which has full
control of the case so much so that the information may not be dismissed without the approval of
that court.
Khan, Jr. vs. Ombudsman e. al, (G.R. No. 125296, July 20, 2006)
Based on [Article Xi, Section13 (2) of the 1987 Constitution, the Office of the Ombudsman exercises
jurisdiction over public officials/employees of GOCCs with original charters. This being so, it can
only investigate and prosecute acts or omissions of the officials/employees of government
corporations. Therefore, although the government later on acquired the controlling interest in PAL,
the fact remains that the latter, did not have an "original charter" and its officers/employees could
not be investigated and/or prosecuted by the Ombudsman.
In Juco v. National Labor Relations Commission, we ruled that the phrase "with original charter"
means "chartered by special law as distinguished from corporations organized under the
Corporation Code." PAL, being originally a private corporation seeded by private capital and
created under the general corporation law, does not fall within the jurisdictional powers of the
Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of
authority to investigate or prosecute petitioners.
31. By impeachment
a. Impeachable officials
1. Officers removable by impeachment:
a. President
b. Vice-president
c. Members of the Supreme Court
d. Members of the Constitutional Commissions
e. Ombudsman
b. Offenses covered:
1. Culpable violation of the Constitution
2. Treason
3. Bribery
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust
c.
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initiated against the same official more than one within a period of one year." "The term "to initiate'
refers to the filing of the impeachment complaint coupled with Congress' taking initial action of the
said complaint. Since Sections 16 and 17 of Rule V of the House of Impeachment Rules provide for
a different meaning to the word "to initiate," the said provisions are unconstitutional. The fact that
under Section 3(8), Article XI, the Congress is given the power to promulgate its own rules on
impeachment does not give the House an absolute rule making power. Such power is limited by the
phrase "to effectively carry out the purpose of this section."
The question of whether or not the second impeachment complaint filed against Chief Justice
Davide, three months after the first complaint, is subject to judicial review. The reliance of the
respondents to US v. Nixon is unavailing. There are two major differences between the U.S. and the
Philippine Constitution. "First, the power of judicial review is impliedly granted to the U.S. Supreme
Court and is discretionary in nature while under the Philippine Constitution, the same is not only a
power but a duty under the court's expanded jurisdiction. Second, the U.S. Constitution did not
provide any limitations in thepower of the members of the House of Representatives in initiating
impeachment cases filing, required vote to impeach and the one year ban rule."
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
197
3. By abolition of office
a. Authority with power to abolish
1. Congress may abolish any office it creates without infringing upon the rights of
the officer or employee concerned
2. The President pursuant to a valid delegation of power
3. Local governments when said power has been delegated to them
4. By the people themselves when they amend the Constitution
b. Abolition of office even during term of incumbent
1. The power to abolish may be exercised at any time and even while the office is
occupied by a duly elected or appointed incumbent.
2. There is no deprivation of the right of the incumbent because he has no
contractual or property interest in the office. acceptance of the office is with the
understanding that it may be abolished anytime.
3. Tenure of office is not affected by the constitutional prohibition against the
impairment of contracts. Security of tenure does not protect civil service
employees from abolition of the positions held by them in the absence of any
other provision expressly or impliedly prohibiting abolition thereof.
4. What constitutes abolition
a. To consider an office abolished, there must have been intention to do away with it
wholly and permanently. There is no abolition where the position is the same one
but bearing a different name.
5. Removal of office and termination by abolition of an office distinguished
Removal
There is an office with an occupant who would
thereby lose his position.
The position subsists and the incumbent is
merely separated therefrom.
Abolition
After abolition, there is no more occupant as
there is no more office.
The right to security of tenure does not exist in a
non-existent office.
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bureau was necessarily extinguished by the abolition of the bureau. The constitutional mandate to
the effect that no officer or employee in the Civil Service shall be removed or suspended except for
cause as provided by law is not in point for there has been neither a removal nor a suspension, but
an abolition of Manalangs former office which is within the power of Congress to undertake.
Qualified personnel were transferred to a new office. A transfer connotes that the NES is different
and distinct from the Placement Bureau. Congress would have directed the retention of the
qualified personnel if the NES were a mere enlargement of the Placement Bureau.
In common parlance, the word personnel is used generally to refer to the subordinate officials or
clerical employees of an office or enterprise, not to the managers, directors or heads thereof.
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8. By conviction of a crime
a. When the conviction of a crime carried with it the penalties of temporary or
perpetual absolute / special disqualification, termination of official relations results
because one of the effects of the imposition of said penalties under Articles 30 and
31 of the Revised Penal Code is the deprivation of public office or employment
which the offender may have held.
b. This applies even if the position was conferred by popular election.
c.
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Since civil, administrative and criminal cases against a public officer are separate,
distinct, and can prosper independently from each other, lack or absence of proof
beyond reasonable doubt in a criminal case does not mean the absence of other
evidence which may be deemed adequate in civil cases (preponderance of
evidence) or administrative proceedings (substantial evidence).
The person pardoned may apply for reappointment to the office which was forfeited
by reason of his conviction and undergo the usual procedure required for a new
appointment.
d. Pardon does not extinguish the civil liability of the grantee arising from the crime of
which he has been convicted.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
201
11. By recall
a. It is the procedure by which an elective official may be removed at any time during
his term by the vote of the people at an election called for such purpose or at a
general election.
12. Purpose and nature of the power of recall
a. Effective speedy remedy for removal
1. The purpose of recall is to provide an effective and speedy remedy for the
removal of an official who is not giving satisfactory service to the public and
whom the electors do not want to remain in office, regardless of whether he is
discharging his full duty to the best of his ability and as his conscience dictates.
b. Political nature involving exercise of judicial functions
1. The power granted to electors to remove officers is political in nature and not
the exercise of a judicial function.
c.
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a.
A written petition for recall must be duly signed before the election registrar
or his representative, in a public place
1. in the presence of the petitioner / representative
2. Representative of the official sought to be recalled
3. Filed before the COMELEC
4. COMELEC or its duly authorized representative shall cause publication of
the petition in a public and conspicuous place for not less than 10 days but
not more than 20 days for the purpose of verification
Election on recall
1. COMELEC shall set the date of the election after the filing of resolution or
petition not later than:
a. 30 days in the case of barangay, city or municipal officials
b. 45 days in the case of provincial officials
d. Effectivity of recall
1. The recall of an elective local official shall be effective only upon the election and
proclamation of a successor who garners the highest number of votes during
the election on recall. If the official sought to be recalled wins, he shall continue
in office.
e.
f.
Limitations on recall
1. Any elective local official may be the subject of a recall election only once during
his term of office for loss of confidence.
2. No recall shall be held within 1 year from the date of the officials assumption of
office or 1 year immediately preceding a regular local election.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
203