J.
DE FACTO OFFICERS
De jure officer
A de jure officer is one who is in all respects legally appointed
or elected and qualified to exercise the office.
De facto officer (2000, 2004, 2009, 2010 Bar)
 A de facto officer is one who assumed office under the color
of a known appointment or election but which appointment
or election is void for reasons that the officer was not
eligible, or that there was want of power in the electing
body, or that there was some other defect or irregularity in
its exercise, wherein such ineligibility, want of power, or
defect being unknown to the public.
 One who has the reputation of being the officer that he
assumes to be, and yet is not a good officer in point of law.
 He must have acted as an officer for such length of time,
under color of title and under such circumstances of
reputation or acquiescence by the public and public
authorities, as to afford a presumption of election or
appointment, and induce people, without inquiry, and
relying on the supposition that he is the officer he assumes
to be, to submit to or invoke his action.
DE JURE OFFICER DE FACTO OFFICER
Has lawful title to the Has possession and
office performs the duties under
a colorable title without
being technically qualified
in all points of law to act
Holding of office rests on Holding of office rests on
right reputation
Officer cannot be Officer may be ousted in
removed through a direct a direct proceeding
proceeding (quo against him.
warranto).
One validly appointed to a May ripen into a de jure
position officer if he repairs his
omission and takes the
required oath or posts the
needed bond
Chief Justice Butler in State v. Caroll: A de facto officer is one
whose acts, though not of a lawful officer, the law upon
principles of policy and justice, will hold valid so far as they
involve the interests of the public and third persons, where the
duties of the office were exercised:
1) Without known appointment or election, but under such
instances or calculated to induce people, without injury, to
submit or invoke his action, supposing him to be the officer
he assumed to be;
2) Under the color of known and valid appointment or election,
but where the officer had failed to conform to some
precedent, requirement, or condition, as to take an oath,
give a bond or the like
3) Under color of known appointment or election, void,
because the officer was not eligible or because there was
a want of power in electing or appointing body, or by reason
of some defect or irregularity in its exercise, such
ineligibility, want of power, or defect being unknown to
public
4) Under color of election or appointment by or pursuant to
public, unconstitutional to the law before the same is
adjudged.
 Usurper or Intruder - neither title not color of title. His acts
are entirely void. However an intruder may grow into a de
facto officer if his assumption of office is acquiesced in
 Colorable tite - derived from an election or appointment,
however irregular or informal.
Requisites of De Facto Officership
1.Existence of a De Jure Office
 There can be no de facto officer where there is no de
jure office, although there may be a de facto officer in
a de jure office.
 The office occupied by the de facto officer must be
legitimate, except that there is some defect in the title
of the person holding it.
2. Color of Title
 Color of title has been derived from reputation or
acquiescence or from an invalid appointment or
election.
 A long as the defect of appointment or election is
unknown to the public, the occupant of the office will
have color of title and can be considered a de facto
officer
Ex. A judge who is automatically retired upon reaching the age
of 70 but continues discharging his duties in the court will be a
de facto officer if the public continues to acquiesce in his acts
because of his reputation. His title under his previous valid
appointment will have lapsed but he will have the color of title
because the people will consider and acknowledge him as a
judge.
A person appointed to an office is subsequently declared
ineligible therefor, his presumably valid appointment will give
him color of title that will confer on him the status of a de facto
officer.
Qualified to office but he has been appointed by one who did
not have the power of appointment, the appointment will
nonetheless provide him with color of title and confer upon him
de facto standing.
3. Physical Possession of the Office
 Without this requisite, the discharge of the powers and
duties of the office will not be possible.
 This office must be actually held by the de facto officer if
his acts are to affect the public and third persons. And
especially with regard to reputation as color of title, the
same can hardly be generated unless there is actual
physical possession of the office by which public
acquiescence to the incumbent’s acts can be persuaded.
Any person who professes to act officially but does not
occupy a public office cannot be considered a de facto
officer and his acts are absolutely void.
Effects of the acts of de facto public officers
1) The lawful acts, so far as the rights of third persons are
concerned are, if done within the scope and by the
apparent authority of the office, are considered valid and
binding.
2) The de facto officer cannot benefit from his own status
because public policy demands that unlawful assumption
of public office be discouraged.
NOTE: The general rule is that a de facto officer cannot
claim salary and other compensations for services
rendered by him as such. However, the officer may retain
salaries collected by him for services rendered in good faith
when there is no de jure officer claiming the office.
3) The de facto officer is subject to the same liabilities
imposed on the de jure officer in the discharge of official
duties, in addition to whatever special damages may be
due from him because of his unlawful assumption of office.
4) The acts of the de facto public officer, insofar as they affect
the public, are valid, binding and with full legal effect.
G.R: The de facto officer cannot claim a salary and other
compensation for service rendered by him as such. If he
has already collected such salary, he may in fact be required to
pay it back to the de jure officer upon recognition of the latter’s
title.
XPN:
Rodriguez vs Tan: This is the policy and rule that has been
followed consistently in this jurisdiction in connection with
positions held by persons who had been elected thereto but
were later ousted as a result of an election protest. The right of
the persons elected to compensation during their incumbency
has always been recognized. The de facto officer may retain
salaries collected by him for services rendered in good faith.
Mendoza vs Allas: The respondent cannot be held personally
liable for the petitioner’s back salaries and benefits where the
former was merely appointed to the subject position by the
President in the exercise of his constitutional powers as Chief
Executive.
- It has been likewise been ruled that a de facto public
officer cannot be made to reimburse funds disbursed
during his term of office because his acts are as valid
as those of a de jure officer. Moreover, as de facto
officer, he is entitled to emoluments for actual services
rendered.
Manner by which challenge to a de facto office is made
1) The incumbency may not be challenged collaterally or in an
action to which the de facto officer is not a party.
2) The challenge must be made in a direct proceeding where
title to the office will be the principal issue.
3) The authorized proceeding is quo warranto either by the
Solicitor General in the name of the Republic or by any
person claiming title to the office.
G.R. No. L-3913, Aug. 7, 1952).
Recovery of the salary received by a de facto officer during
a wrongful tenure
 As a rule, the rightful incumbent of the public office may
recover from a de facto officer the salaries received by the
latter during the time of the latter's wrongful tenure even
though he entered into the office in good faith and under a
colorable title. The de facto officer takes the salaries at his
risks and must therefore account to the de jure officer for
the amounts he received. However, where there is no de
jure officer, a de facto officer shall be entitled to the salaries
and emoluments accruing during the period when he
actually discharged the duties (Monroy v. CA, G.R. No. L-
23258, July 1, 1967).
NOTE: In Monroy v. CA, the Supreme Court said that the
Rodriguez ruling cannot be applied for the absence of
factual and legal similarities.
Essence of de facto doctrine
 The de facto doctrine has been formulated, not for the
protection of the de facto officer principally, but rather for
the protection of the public and individuals who get involved
in the official acts of persons discharging the duties of an
office without being lawful officers.
Q: May the salary of a public officer or employee be subject
to garnishment? Why?
A: No. It may not, by garnishment, attachment, or order of
execution, be seized before being paid to him, and appropriated
for the payment of his debts, because of the following reasons:
1. While it is still in the hands of the disbursing officer, it belongs
to the government;
2. Public policy forbids such practice since it would be fatal to
the public service; and
3. It would be tantamount to a suit against the State in its own
court, which is prohibited, except with its consent.
De facto officer vs. Usurper

Q: ACE ran as congressman of Cagayan province. His DE FACTO OFFICER USURPER (2000 Bar)
opponent, Mark, however, was the one proclaimed as the Complies with the 3 Takes possession of an
winner by the COMELEC. ACE filed seasonably a protest elements of a de jure office and does official
before the HRET. After two years, the HRET reversed the officer, namely: acts without any actual or
COMELEC’s decision and ACE was proclaimed finally as 1) existence of a de jure apparent authority
the duly elected Congressman. Thus, he had only one year office;
to serve in Congress. 2) must possess the
1. Can ACE collect salaries and allowances from the legal qualifications
government for the first two years of his term as for the office in
Congressman? question;
2. Should Mark refund to the government the salaries and 3) must have qualified
allowances he had received as Congressman? himself to perform
3. What will happen to the bills that Mark alone authored the duties of such
and were approved by the HoR while he was seated as office according to
Congressman? Reason and explain briefly. the mode prescribed
by law.
A:
1. No. ACE cannot collect salaries and allowances from the Has color of right or title to Has neither color of right
government for the first two years of his term, because in the office or title to office
meanwhile Mark collected the salaries and allowances. Mark Acts are rendered valid as Acts are absolutely void
was a de facto officer while he was in possession of the office. to the public until his title
To allow ACE to collect the salaries and allowances will result is adjudged insufficient
in making the government pay a second time.
2. No. Mark is not required to refund to the government the
salaries and allowances he received. As a de facto officer, he is
entitled to the salaries and allowances because he rendered
services during his incumbency.
3. The bills which Mark alone authored and were approved by
the House of Representatives are valid because he was a de
facto officer during his incumbency. The acts of a de facto officer
are valid insofar as the public is concerned (Rodriguez v. Tan,
GR: Not entitled to to office even if he is not entitled to
The rightful incumbent of compensation the office.
a public office may Person adjudged entitled to Actual or compensatory
recover from an officer de the office may bring a damages are recoverable in
facto the salary received separate action against the quo warranto proceedings
by the latter during the respondent to recover under the Omnibus Election
time of his tenure even damages (Sec. 11, Rule 66 Code
though he entered into ROC)
the office in good faith
and under color of title.
XPN: Challenge to a De Facto Officer
Where there is no de jure The authorized proceeding is Quo Warranto (or “by what
public officer, the officer authority”) which is an action that may be brought against a
de facto who in good faith person who usurps, intrudes into or unlawfully holds or
has had possession of the exercises a public office, either by the Solicitor General in the
office and has discharged name of the Republic or by any person claiming title to the office.
the duties pertaining
thereto, is legally entitled
to the emoluments of the
office, and may, in an
appropriate action,
recover the salary, fees
and other compensations
attached to the office.
(Gen. Manager,
Philippine Ports Authority
v. Monserrato, April 17,
2002)

Quo warranto
It is a proceeding or writ issued by the court to determine the
right to use an office, position or franchise and to oust the
person holding or exercising such office, position or franchise if
his right is unfounded or if a person performed acts considered
as grounds for forfeiture of said exercise of position, office or
franchise.

NOTE: It is commenced by a verified petition brought in the

name of the Republic of the Philippines or in the name of the
person claiming to be entitled to a public office or position
usurped or unlawfully held or exercised by another (Sec. 1, Rule
66).

Nature and purpose of quo warranto

It literally means “by what authority” and the object is to
determine the right of a person to the use or exercise of a
franchise or office and to oust the holder from its enjoyment, if
his claim is not well-founded, or if he has forfeited his right to
enjoy the office

Quo warranto under Rule 66 vs. Quo warranto in electoral

proceedings
QUO WARRANTO UNDER QUO WARRANTO IN
RULE 66 ELECTORAL
PROCEEDINGS
Issue is legality of the Issue is eligibility of the
occupancy of the office by person elected
virtue of a legal appointment
Grounds: usurpation, Grounds: ineligibility or
forfeiture, or illegal disqualification to hold the
association (Sec. 1, Rule office (Sec. 253, Omnibus
66, Rules of Court) Election Code)
Presupposes that the Petition must be filed within
respondent is already 10 days from the
actually holding office and proclamation of the
action must be commenced candidate.
within 1 year from cause of
ouster or from the time the
right of petitioner to hold
office arose.
Petitioner is person entitled Petitioner may be any voter
K. TERMINATION OF OFFICIAL RELATIONS
TERMINATION OF OFFICIAL RELATION
Modes of terminating official relationships
1. Expiration of term or tenure
2. Reaching the age limit for retirement
3. Resignation
4. Recall
5. Removal
6. Abandonment
7. Acceptance of an incompatible office
8. Abolition of office
9. Prescription of the right to office
10. Impeachment
11. Death
12. Failure to assume office
13. Conviction of a crime
14. Filing fof a COC
NOTE:
Appointive officials, active members of the Armed Forces of the
Philippines, and officers and employees of the GOCCs, shall be
resigned from his office upon the filing of his CoC (Quinto v.
COMELEC, Feb. 22, 2010, G.R. No. 189698).
Elective officials shall continue to hold office, whether he is
running for the same or a different position (Sec. 14, Fair
Elections Act expressly repealed Sec. 67 of B.P. Blg. 881).
Age limit for retirement
1. For members of SC and judges of lower courts– 70 y.o.
2. Gov't officers and employees – 65 y.o.
3. Optional retirement – 60 y.o. and must have rendered at least
20 service years
Resignation (2000 Bar)
It is the act of giving up or declining a public office and
renouncing the further right to use such office. It must be in
writing and accepted by the accepting authority as provided for
by law.
Accepting authorities for resignation
1. For appointed officers the tender of resignation must be given
to the appointing authority;
2. For elected officers, tender to officer authorized by law to call
an election to fill the vacancy. The following authorized officers
are:
a. Respective chambers – For members of Congress;
b. President – For governors, vice-governors, mayors and vice-
mayors of highly urbanized cities and independent component
cities;
c. Provincial governor – For municipal mayors and vice-mayors,
city mayors and vice-mayors of component cities;
d. Sanggunian concerned – For sanggunianmembers;
e. Municipal/city mayors – For barangay officials.
Courtesy resignation
It cannot properly be interpreted as resignation in the legal
sense for it is not necessarily a reflection of a public official's
intention to surrender his position. Rather, it manifests his
submission to the will of the political authority and the appointing
power (Ortiz V. COMELEC, G.R. No. 78957, June 28, 1988).
Q: During the May 1998 election, petitioner Hazel was
elected President while respondent Kristina was elected
Vice-President. From the beginning of her term, petitioner
was plagued by jueteng issues that slowly eroded her
popularity. Afterwards, the impeachment trial started and
the people conducted a 10-kilometer line holding lighted
candles in EDSA Shrine to symbolize their solidarity in
demanding Hazel’s resignation. On January 19, Hazel
agreed to the holding of a snap election for President. On
January 20, Chief Justice Ramon administered the oath to
respondent Kristina as President of the Philippines. On the
same day, Hazel issued a press statement that she was
leaving Malacañang Palace for the sake of peace and in
order to begin the healing process of the nation. It also
appeared that on the same day, she signed a letter stating
that she was transmitting a declaration that she was unable
to exercise the powers and duties of his office and that by
operation of law and the Constitution, the Vice-President
shall be the Acting President. Are the acts of Hazel
constitutive of resignation?
A: YES. Resignation is not a high level legal abstraction. It is a
factual question and its elements are beyond quibble: there
must be an intent to resign and the intent must be coupled by
acts of relinquishment (totality test). The validity of a
resignation is not governed by any formal
requirement as to form. It can be oral, written, express or
implied. As long as the resignation is clear, it must be given legal
effect (Estrada v. Arroyo, G.R. No. 146738, March 2, 2001).
Removal
Forcible and permanent separation of the incumbent from office
before the expiration of the public officer's term (Feria, Jr. v.
Mison, G.R. No. 8196, Aug. 8, 1989).
Recall
It is an electoral mode of removal employed directly by the
people themselves through the exercise of their right of
suffrage. It is a political question not subject to judicial review. It
is a political question that has to be decided by the people in
their sovereign capacity (Evardone v. COMELEC, G.R. No.
94010, Dec. 2, 1991).
NOTE: Recall only applies to local officials.
Limitations on recall
1. An elective official can be subjected to recall only once
2. No recall shall take place within one (1) year from the
assumption of office or one year immediately preceding a
regular local election (Sec. 74 (b) of Republic Act No. 7160).
NOTE: For the time bar to apply, the approaching local election
must be one where the position of the official to be recalled is to
be actually contested and filled by the electorate (Angobung v.
COMELEC, G.R. No. 126576, March 5, 1997).
Effect of Recall on the 3-term limit rule (2010 Bar)
The three-term limit for local elected officials is not violated
when a local official wins in a recall election for mayor after
serving three full terms as mayor since the recall election is not
considered an immediate re-election, it is not counted for
purposes of the 3-term limit. Term limits should be construed
strictly to give the fullest possible effect to the right of the
electorate to choose their leaders (Socrates v. COMELEC, G.R.
No. 154512, Nov. 12, 2002).
Abandonment (2000 Bar)
It is the voluntary relinquishment of an office by the holder with
the intention of terminating his possession and control thereof.
Q: Does the acceptance of an incompatible office ipso facto
vacate the other?
A: GR: Yes.
XPN: Where such acceptance is authorized by law.
NOTE: It is contrary to the policy of the law that the same
individual should undertake to perform inconsistent and
incompatible duties. He who, while occupying one office,
accepts another incompatible with the first, ipso facto,
absolutely vacates the first office. That the second office is
inferior to the first does not affect the rule.
Q: Does the acceptance of an incompatible office pertain to
its physical impossibility or its nature?
A: It refers to the nature and relation of the two offices to each
other, they should not be held by one person from the
contrariety and antagonism which would result in the attempt by
one person to faithfully and impartially discharge the duties of
one, toward the incumbent of the other.
Prescriptive period for petitions for reinstatement or
recovery of public office
It must be instituted within 1 year from the date of unlawful
removal from the office. Such period may be extended on
grounds of equity.
Period to take the oath of office to avoid failure to assume
office
Failure to take the oath of office within 6 months from
proclamation of election shall cause the vacancy of the office
UNLESS such failure is for a cause beyond his control (Sec. 11,
B.P. 881).
Termination of official relationship by conviction of final
judgment
When the penalty imposed carries with it the accessory penalty
of disqualification.
Modes
Among the different modes of terminating official relations are
expiration of the term, including reaching the age limit and
accomplishment of the purpose of the office, resignation,
abandonment, acceptance of an incompatible office, removal,
including recall, impeachment and forfeiture, abolition of the
office and death.
1.Expiration of the Term or Tenure
Term - the period during which the individual has a right to the
public office. It is the period fixed by law that allows the
appointee to hold office, perform its functions, and enjoy its
privileges until the expiration of the said period. The term may
be fixed at a definite number of years or contingent on an act or
event or determined in the discretion of the superior authority.
E.g.: President, not eligible for re-election, has a fixed term of
six years. Judges have a right to continue in office until they
reach the age of 70, which means that their term will be brief or
extended depending on their age at the time of their
appointment.
- Where the term is fixed by the Constitution, the same may not
be changed by mere statute. But the legislature may increase
or shorten a statutory term of office, although there are some
authorities which hold that the change should not affect the
incumbent officer unless it is clearly so provided.
- Some statutes allow the incumbent to hold over even after the
expiration of the fixed term of office “until the successor shall
have been duly elected or appointed and qualified.” In this case,
the officer holding over is considered de jure.
a) When a public officer holds office at the pleasure of the
appointing authority, his being replaced shall be regarded as
termination through expiration of term, not removal. See
Astraquillo v. Manglapus, 190 SCRA 280.
b) Where the Constitution provides that the term of office of local
elective officials is three (3) years, Congress cannot, by a law
calling for delayed elections, effectively reduce the term
[Osmena v. Comelec, 199 SCRA 750].
c) Upon the change of government brought about by the EDSA
Revolution, the acceptance by the President of the “courtesy
resignations” of constitutional officers with fixed terms of office
resulted in the expiration of term (or tenure), entitling the
officers to retirement benefits [Ortiz v. Comelec, 162 SCRA
812; In Re:Retirement of Justice Britanico, 173 SCRA 421].
d) In Gloria v. Judge de Guzman, supra., it was held that there
was no termination in the sense that termination presupposes
an overt act committed by a superior officer. What happened
was that the private respondents’ appointments or employment
simply expired, either by their own terms, or because they may
not exceed one year, but most importantly, because PAFCA
was dissolved and replaced by PSCA.
Commencement of the term of office. Rules:
a) Where the statute fixes a period within which a chosen officer
may arrange his affairs and qualify for the office in a prescribed
manner, his term begins upon qualification.
b) Where no time is fixed by law for the commencement of his
official term, it begins from the date of appointment in cases of
an appointive office, or from the date of election, in case of an
elective office.
c) Where the law fixing the term of a public office is ambiguous,
the one that fixes the term at the shortest period should be
followed.
d) Where both the duration of the term of office and the time of
its commencement or termination are fixed by constitutional or
statutory provisions, a person elected or appointed to fill the
vacancy in such office shall hold the same only for the
unexpired portion of the term.
e) Where only the duration of the term is fixed, but no time is
established for the beginning or end of the term, the persons
elected to fill the vacancy in such office may serve the full term
and not merely the unexpired balance of the prior incumbent’s
term.
f) Where an office is created, or an officer is appointed, for the
purpose of performing a single act or the accomplishment of a
given result, the office terminates and the officer’s authority
ceases with the accomplishment of the purposes which called
it into being.
Hold Over - when applied to a public officer, implies that the
office has a fixed term and the incumbent is the holding on to
the succeeding term. The purpose of which is to prevent a hiatus
in public office to the detriment of the people themselves, it is
believed by some courts that the incumbent has not only the
right but also the duty to hold over pending his lawful
replacement, in the absence of an express or implied
prohibition.
In Alajar vs Alba - petitioner was appointed vice-Mayor of
Roxas city under the charter, providing that he shall serve at the
pleasure of the President. After a year, he was asked by the
office of the President to vacate the position. His term was not
fixed by law, However, the President was vested with the power
to fix term. Thus, his term of office was extinguished, with the
same legal effects as if the term has been fixed by Congress
itself. Alajar, therefore, was not removed from office. He merely
lost hi right to hold office by expiration of his term.
*Officials and employees holding primarily confidential positions
continues in office for as long as the confidence in them
endures; the termination of their official relations can be justified
on the ground of loss of confidence but, in that case, their
cessation from office involves no removal but expiration of term
of office.
-The law usually indidcates the time for the commencement of
the term. If the law is silent in this regard, the rule is that the
term commences on the date of appointment or election as
the case may be.
*If accidental vacancy occurs in an office where the beginning
and end of the term are specified, the replacement shall serve
only for the unexpired portion of the term of the predecessor.
But where only the period of the term is specified and the
incumbent vacateshis office before the end of that period, his
successor shall commence his own term for the full period
unless otherwise provided by law.
2.Resignation
While on generally may not be compelled to accept a public
office except only in connection with the defense of the state, he
does not, once he as accepted it, have full freedom to renounce
it. There must be a formal method of renunciation coupled with
the physical act of relinquishment of the office, and subject to
approval by the superior authorities, that the incumbent should
observe
In Estrada vs Desierto - Resignation is not a high-level
abstraction. It is a factual question and its elements are beyond
quibble: there must be intent to resign and the intent must be
coupled by acts of relinquishment. The validity of a resignation
is not governed by any formal requirement as to form. It can be
oral. It can be written. It can be express. It can be implied. As
long as the resignation is clear, it must be given legal effect.
-Unless accepted, the resignation will not become effective.
This acceptance is usually made in writing, but it may also be
implied, as where the approving authority gives due course to
the officer’s request for commutation of his accrued terminal
leave or appoints his successor.
-A resignation becomes effective usually on the date specified
in the tender. If no such date is specified, then it will become
effective when the officer receives notice of the acceptance
thereof.
- A resignation may be withdrawn as long as it has not yet been
accepted, or if ti was tendered as a result of mistake, threat or
any vice of consent
Courtesy resignation - cannot be interpreted as a resignation
in the legal sense for its not necessarily a reflection of public
official’s intention to surrender his position. Rather, it manifests
his submission to the will of the political authority and the
appointing power.
Thaw law usually specified the officer to whom the resignation
should be submitted, but if it does not, the rule is that it should
be tendered to the officer who has the power to fill the vacancy
to be created, either by appointment or by calling a special
election.
E.g.: member of the Cabinet - his resignation must be submitted
to the President, who has the power to nominate his successor.
3.Abandonment
- the total surrender, relinquishment, disclaimer, or cession of
the public office and includes the intention as well as the
external act by which it is carried out. It also connotes the giving
up of the office but is not attended with the formalities observed
in resignation. It springs from and is accompanied by
deliberation and freedom of choice.
Two elements:
1.An intention to abandon
2.An overt or external act by which the intention is carried into
effect
*A person holding a public office may abandon such office by
non-user or acquiescence.
Non-user - refers to a neglect to use a right or privilege or to
exercise an office.
Non-performance of duties - does not constitute
abandonment where such non-performance results from
temporary disability or involuntary failure to perform.
*Abandonment may also result from an acquiescence by the
officer in his wrongful removal or discharge.
*Abandonment may be effected by a positive act or can be the
result of an omission, whether deliberate or not. The most
obvious illustration of abandonment is where the public officer
simply stops reporting for work and refuses to continue
discharging his duties.
In Zandueta vs De la Costa - The rule of equity is that when a
public official voluntarily accepts an appointment to an office
newly created or reorganized by a law - which new office
incompatible with the one formerly occupied by him - qualifies
for the discharge of the functions thereof by taking the
necessary oath and enters into the performance of his duties by
executing acts inherent in said newly created or reorganized
office and receiving the corresponding salary, he will be
considered to have abandoned the office he was occupying by
virtue of his former appointment and he cannot question the
constitutionality of the law by virtue of which he was last
appointed.
In Santiago vs Augustin - the SC held that a public office may
also become vacant by abandonment. But in order to constitute
abandonment of office, it must be total, and under such
circumstances as clearly to indicate an absolute relinquishment.
Temporary absence is not sufficient. Instead, there must be an
intention, actual or imputed, to abandon the office.
-It has also been held that where an employee accepted another
position in the government during the pendeny of his appeal
from an administrative decision, such acceptance did not
constitute an abandonment of his original position as, according
to the SC he had to finds means to support himself and his
family.
- An officer or employee cannot be considered as absent without
leave where his applications for leave, which he duly filed, were
later denied. Neither can he be considered terminated in the
event of two successive unsatisfactory ratings, as the latter is
considered only as a ground for termination under Sec. 3(f),
Rule IX of the Omnibus Civil Service Rules and Regulations.
Rebellion against the government - when a person rebels
against the government, the inevitable and logical result is that
he is deemed to have abandoned his office in that government.
Changing of residence - it is also the same with changing of
residence when such is one of the qualifications for holding it,
more so if by transferring to another place, he will be unable to
attend to the duties of his office.
As previously observed, mere delay in qualification for the office
will not result in automatic forfeiture thereof. But if delay is
inordinate and unjustified, amounting to an absolute refusal to
assume discharge of official duties, qualification at a later time
will not be permitted and the right to the office will be deemed
abandoned.
Acquiescence to one’s removal, even if invalid, may result
in abandonment of office - A person unlawfully deprived of his
office by another may file a petition for quo warranto within 1
year. Failure to observe this reglementary period, which is not
suspended by the pendency of an administrative remedy, will
result as an abandonment of his right to recover his position
because SC held that it is not proper that the title of a public
office be subjected to a continued uncertainty. The institution of
an administrative remedy would not have the effect of
suspending this prescriptive period, which continues to run
nothwithstanding the pendency of a motion for reconsideration.
-The one year prescriptive period does not apply to a petition
for Mandamus to compel reinstatement fo the ousted
officer or employee, as held in Floreza vs. Mar. This petition
may be filed even after one year as long as the delay is not so
unreasonable as to constitute laches.
4.Acceptance of an Incompatible Office
Where two offices are incompatible, they cannot be held
simultaneously by the same person. Public policy requires that
they be vested in different individuals lest a hostility, or worse,
conspiracy of powers ion the two offices result in irremediable
detriment to the people.
Incompatibility - exists when the character or nature of offices
or relation to each other are such that one person should not
hold both because of the contrariety and antagonism which
would result in the attempt by one person to faithfully and
impartially discharge the duties of one, toward the incumbent of
the other.
G.R.: Acceptance of the incompatible office automatically
vacates the first, and this is true even if title to the second
office should subsequently be annulled. In accepting the
second office, the officer is deemed to have preferred it to the
first, which he will ipso facto lose as a result. And having vacated
the fist office, he cannot recover it later if his title fails in the
second office, as where is ousted therefrom
In Re Querubin: the issue involved the question of whether r not
the midnight appointees of President Garcia qho qualified for
new and incompatible offices while incumbent in other positions
could return to their original posts after the revocation of their
appointments by his successor. The SC held that they could, as
there was no effective holding of the office to which they had
been appointed.
Section 13, Article VI of the Constitution - a Senator or
Member of the HoR shall forfeit his seat the moment he holds
another office or employment in the Government, or GOCC. It
has also been held that where an officer cannot resign without
the approval of the higher authority, he may not circumvent the
requirement by accepting an incompatible office, as otherwise
he will be allowed to do indirectly what he cannot do directly. In
this case, it is the first and not the second office that will be
retained.
In case of forbidden office (an appointive office created or
improved while the prospective appointee thereto was a
member of the legislature) - it is the appointment itself during his
term of office that is prohibited. Hence his holding of the second
office is absolutely void and he will not as a consequence forfeit
his position in legislation.
5.Removal
It is the forcible and permanent separation of the incumbent
from office before the expiration of his term. It is different from
suspension, which is the temporary divestiture of the right to the
office during part of the term and does not have the effect of
vacating the office.
The power of removal may be derived under the Doctrine of
Implication from the power of appointment. The express power
to appoint carries with the implied power to remove.
Accordingly, it may be stated as a general rule that all officers
appointed by the President are also removable by him.
XPN: the members of the SC and of the Constitutional
Commissions, as well as the Ombudsman who, although
appointed by him, may be removed only by impeachment. The
judges may only be removed by the SC although they are also
appointed by the President
With respect to other functionaries, the rule is they may not be
suspended or dismissed except for cause as provided by law
and established at appropriate administrative proceedings, and
after due process.
Demotions and transfers without cause are tantamount to
removal.
Demotions - assigning an employee to a lower position in the
same service, which has a lower rate of compensation, is
tantamount to removal if no cause is shown for it or if it was not
part of any disciplinary action.
Section 16(3) of Article VI - a member of the legislature may
be suspended or expelled for disorderly behavior by not less
than 2/3 if all its members, provided that if the penalty imposed
is a suspension, the same shall not exceed 60 days.
RA 7160, Secs. 60-68: Local officials may be removed
administratively and additionally, through the process of recall.
In this connection, where a local official is re-elected pending
the investigation of administrative charges allegedly committed
by him during the preceding term, the investigation is deemed
abated. This is only true of administrative charges and will not
prevent his prosecution in court during his subsequent term is
such offenses also constitute a crime. The electorate is not
vested with a pardoning power and cannot extinguish criminal
liability.
Art. IX 9B, Sec. 2(3) - no officer or employee in the Civil Service
shall be removed or suspended except for cause provided by
law
For Cause - it means for reasons which the law and sound
public policy recognized as sufficient warrant for removal, that
is, legal cause, and not merely causes which the appointing
power in the exercise of discretion may deem sufficient. The
cause must be restricted to something of substantial nature
affecting the rights and interests of the public.
Transfers - Sc held in Cruz vs Navarro that for the good of the
public service and whenever public interest demands, public
officers may be temporarily assigned or detailed to other duties
even over his objection without necessarily violating his security
of tenure. But this cannot be done if the transfer is with a view
to his removal or is resorted to as a scheme to lure him from his
permanent position.
A reorganization which results in the abolition or merger of
position sis now acknowledged as a valid cause for removal.
6.Impeachment - a method of national inquest into the conduct
of public men. It is an extraordinary means of removal
exercised by the legislature over a selected number of officials,
the purpose being to ensure the highest care in their indictment
and conviction and the imposition of special penalties in case
of finding guilt, taking into account the degree or nature of the
offense committed and the high status of the wrongdoers.
Impeachable Officers
Under the Constitution, the impeachable officers are the
President, Vice-President, the members of the Supreme Court,
the members of the Constitutional Commission, and the
Ombudsman. Under the principle of expressio unius est
exclusio alterius, it would not be competent for the legislature to
add to or to delete from this exclusive list.
Grounds:
Article VIII, Section 11 provides for the grounds and are
likewise exclusive in manner.
a.Culpable Violation of the Constitution - wrongful,
intentional or willful disregard or flouting of the fundamental
law. The act must be deliberate and motivated by bad faith to
constitute a ground for impeachment. Mere mistakes in the
proper construction of the Constitution, on which students of
law may sincerely differ, cannot be considered a valid ground
for impeachment
b.Treason - Under Art. 114 of the RPC, committed by any
person who, owing allegiance to the Government of the
Philippines, levies war against it or adheres to its enemies,
giving them aid and comfort.
c.Bribery also defined in Art. 210 and 211 of the RPC, is
committed by any public officer who shall agree to perform an
act, whether or not constituting a crime, or refrain from doing
an act act which he is officially required to do in connection
with the performance of his official duties, in consideration of
any offer, promise, gift or present received by him personally
or through the mediation of another, or who shall accept gifts
offered to him by reason of his office.
d.Other High Crimes - according to the special committee of
HoR that investigated the charges against President Aquino,
are supposed to refer to those offenses, “which, like treason
and bribery, are of so serious and enormous a nature as to
strike at the very life or orderly workings of the government.”
e.Graft and Corruption - is to be understood in the light of the
prohibited acts enumerated in the Anti-Graft and Corrupt
Practices Act, which was in force at the time of the adoption of
the Constitution
f.Betrayal of Public Trust - a new ground added by the
Constitutional Commission as a catch-all to cover all manner
of offenses unbecoming of a public functionary but not
punishable by the criminal statutes, like “inexcusable
negligence of duty, tyrannical abuse of authority, breach of
official duty by malfeasance or misfeasance, cronyism,
favoritism, and obstruction of justice.”
Procedure
Section 3 of Art. Xi provides that the HoR shall have the
exclusive power to initiate all the cases of impeachment. The
Senate has the sole power to try and decide all cases of
impeachment.
1.A verified complaint for impeachment ma be filed by any
member of the House or by any citizen upon a resolution of
endorsement by any Member thereof. It shall be included in
the Order of Business within 10 days, and referred to the
proper Committee within 3 sessions days thereafter
2.The Committee, after hearing, and by a majority vote for all its
members, shall submit its report to the House, within 60
session days from such referral, together with the
corresponding resolution. The resolution shall be calendared
for consideration by the House within 10 session days from the
receipt thereof
3.A vote of at least 1/3 of all the Members shall be necessary
either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or overrides its contrary
resolution. The vote of each member shall be recorded. In
case the verified complaint or resolution of impeachment is
filed by at least 1/3 of all members, the same shall constitute
the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
*No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
Judgment
Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under
the Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial, and
punishment according to law
A judgment of the Congress in an impeachment proceeding is
normally not subject to judicial review because of the vesture in
the Senate of such power. Interpretation of the meaning of the
different grounds for impeachment and assessment of the
evidence presented at the trial involve the exercise of wisdom
or discretion and therefore come under the category of political
questions.
XPN: When there is a showing of a grave abuse of discretion
committed by the Congress, or of non-compliance with the
procedural requirements of the constitution, as where the
charges are instituted without a verified complaint, or by less
than 1/3 of all the members of the HoR, or where the judgment
of conviction is supported by less than 2/3 vote in the Senate.
*The judgment of conviction in impeachment is also not subject
to the pardoning power of the President under Sec. 19 of Art.
VII of the Constitution
7.Forfeiture
Operates to divest the incumbent of title to his office as a result
of a positive act, either culpable or innocent
E.g. Acceptance of a Senator or member of the House of an
incompatible office shall work a forfeiture of his seat in the
legislature.
Under Sec. 66 of the Omnibus Election Code, or BP 881 -
any person holding a public appointive office or position,
including active members of the AFP, and officers and
employees in GOCC, shall be considered ipsi facro resigned
from his office upon the filing of his certificate of candidacy. The
SC held that this provision applies even to employees of GOCC
without original charters.
Sec. 67 - any elective official, whether national or local, running
for any office other than the one he is holding in a permanent
capacity, except for President and Vice-President, shall be
considered ipso facto resigned from his office upon the filing of
his certificate of candidacy
8.Recall
It is a method of removal employed directly by the people
themselves through the exercise of their suffrages. It is intended
to make the public official more responsive to popular will
through constant awareness of the power of the electorate to
replace him even before the expiration of his term
The power of recall for loss of confidence shall be exercised by
the registered voters of a local government to which the local
elective official subject to such recall belongs.
Procedure for Recall is under Sec. 70 and 71 of RA 7160.
Q: Whether or not an assumption to office through a recall
election should be considered as one term for purposes of
applying the three-term limit rule
A: I both Adormeo vs Comelec and Socrates vs Comelec, the
SC held that what the Constitution prohibits is an immediate
reelection for a fourth term following three consecutive terms.
The Constitution does not prohibit a subsequent reelection for a
fourth term as long as the reelection is not immediately after the
end of the third consecutive term. A recall election mid-way in
the term following the third consecutive term is a subsequent
election but not immediate reelection after the third term.
In Lonzanida vs Comelec, the Sc stressed that involuntary
severance from office amounts to an interruption of continuity of
services. A mayor who consecutively served for two terms and
was elected but later ousted by COMELEC during his third term,
cannot be considered as having served said third ter by reason
of involuntary relinquishment. He may therefore run for the
same position immediately subsequent to his aforesaid ouster.
9.Abolition of the Office
The power to create includes the power to destroy; hence,
except where the office was created by the Constitution itself, it
may be abolished by the same legislature that brought it into
existence.
Where an office is abolished in good faith, the incumbent who
is separated as a result cannot complain that he has been
denied his constitutional security of tenure, as this right is
merely accessory to the office and disappears with the abolition
of the principal. The right to security can be invoked only as long
as the office itself continues to exist and not otherwise.
Invalid abolition - if the abolition which is nothing else but a
separation or removal, is done for political reasons or purposely
to defeat security of tenure, or otherwise not in good faith, no
valid abolition takes place and whatever abolition is done, is
void ab initio. There is invalid abolition where there is merely a
change of nomenclature of positions, or where claims of
economy are belied by the existence of ample funds.
Under the provisions of RA 6656 - a valid cause for removal
exists when, pursuant to a bona fide reorganization, a position
has been abolished or rendered redundant or there is a need to
merge, divide, or consolidate positions in order to meet the
exigencies of the service, or other lawful causes allowed by the
Civil Service Law.
The existence of the ff circumstances may be considered as
evidence of bad faith in the removals made as a result of
reogranization:
a.Where there is a significant increase in the number of
positions in the new staffing patter of the department or agency
concerned
b.Where an office is abolished and other performing
substantially same functions is created
c.Where incumbents are replaced by those less qualified in
terms of status of appointment, performance and merit
d.Where there is a reclassification of offices in the department
or agency concerned and the reclassified offices perform
substantially the same function as the original offices
e.Where the removal violates the order of separation provided
in Sc. 3 of the provisions of RA 6656
Order of Removal under Sec 3
a.Casual employees with less than 5 years of government
service
b.Casual employees with 5 years or more of government
service
c.Employees holding temporary appointments
d.Employees holding permanent appointments; provided that
those in the same category as enumerated above, who are
least qualified in terms of performance and merit, shall be laid
first, length of service notwithstanding.
Sec. 5 - officers and employees holding permanent
appointments shall be given preference for appointment in other
agencies if they meet the qualification requirements of the
position therein.
Reorganization - is a recognized valid ground for separation of
Civil Service employees, subject only to the condition that it be
done in good faith. The whole purpose of such is that it is a
process of restructuring the bureaucracy’s organizational and
functional set-up, to make it more viable in terms of economy,
efficiency, effectiveness and make it more responsive to the
needs of its public clientele as authorized by law
Mendoza vs Quisumbing - SC declared that ritual invocation
of the abolition of an office is not sufficient to justify the
termination of the services of an officer or employee in such
abolished office. Abolition should be exercised in good faith,
should not be for personal or political reasons, and cannot be
implemented in a manner contrary to law.
City of Basilan vs Hechanova - an office created by municipal
ordinance could not be abolished by the local council at will. The
decision held that since the creation of the office was directed
by the Congress itself, the office could not be abolished by mere
ordinance as it would be violative of the statute.
10.Death
Death terminates the incumbent’s right to the office as it
terminates everything else. However, where the office will be
immobilized as a result will depend on the nature of the office
and the provisions for automatic succession.
Where the office is occupied by a single incumbent, the office
will cease to function until a successor is able to qualify and take
over.
E.g. Vice-mayor automatically takes over when the mayor dies
and assumes the discharge of duties of the latter, this
preventing an appreciable hiatus in the discharge of official
functions.
Councilor, his death will render his office inactive until someone
else is chosen to replace him
Death of a member of Sangguniang Panglungsod, will not
prevent the body from functioning as the remaining members
are still sufficient to constitute a quorum to do business and a
majority of them can validly act for the entire membership. It
would be different, however, if unanimous action is required of
the office, or the vote of a specified number is prescribed by law
to render a binding decision.
G.R.: A public officer’s death or other permanent disability
creates a vacancy in the office, so that the successor is entitled
to hold for a full term, such rule is recognized to suffer exception
in those cases where the clear intention is to have vacancies
appointments at regular intervals.
Malanyaon vs Lising - the death of a public officer, charged
with a violation of a penal law and suspended as a consequence
thereof pending resolution of the case, results merely in the
dismissal of the case and not in his acquittal. Accordingly, his
heirs will not be entitled to his salaries corresponding to the
period of his suspension.
Loyao vs Caube - the death or retirement of any judicial officer
from the service does not preclude the finding of any
administrative liability to which he shall still be answerable.
11. Reaching the age limit
1. Compulsory retirement age: Seventy (70) years of age for
members of the Judiciary; sixty-five (65) for other government
officers and employees. See the new GSIS Charter.
a) Special retirement laws, e.g., R.A. 1616, which allows
optional retirement after an officer has rendered a minimum
number of years of government service, when availed
ofbythepublicofficer, will result in termination of official
relationship through reaching the age limit (or retirement).
2. Retirement Benefits. Retirement laws are liberally construed
and administered in favor of the persons intended to be
benefited, and all doubts are resolved in favor of the retiree to
achieve their humanitarian purpose [In Re: Amount of Monthly
Pension of Judges, 190 SCRA 315; Profeta v. Drilon, 216 SCRA
728]. See GSIS v. Civil Service Commission, 245 SCRA 179,
and Conte v. Commission on Audit, 264 SCRA 19. But in
Gamogamo v. PNOC Shipping & Transport Corp, supra., the
Supreme Court denied the tacking in of 14 years of service with
the Department of Health and adding the same to the creditable
service rendered to two government-owned and -controlled
corporations without original charters.
a) In Cena v. Civil Service Commission, 211 SCRA 179, it was
held that CSC Memorandum Circular No. 27, allowing extension
of service only for one year (instead of what is needed to
complete the 15-year service requirement for retirement),
cannot prevail over Sec. 11 (b), PD 1146, which allows
extension in order to complete the 15-year service requirement.
This ruling was re-examined and modified in Rabor v. Civil
Service Commission, G.R. No. 111812, May 31, 1995, where
the Supreme Court said that when it enunciated the Cena ruling,
it took the narrow view on what subordinate rulemaking by an
administrative agency is permissible and valid, and it likewise
laid heavy stress on the interest of retirees by allowing
extension of services without considering the significance of the
general principle of compulsory retirement at the age of 65.
Henceforth, CSC MC No. 27, series of 1990, is deemed valid
and effective, and Sec. 11, P.D. 1146, is to be read together
with CSC MC 27. However, the head of the agency is vested
with discretionary authority to allow or disallow extension of
service of an official or employee who has reached 65 without
completing 15 years of government service, although this
discretion is to be exercised conformably with CSC MC 27.
b) In the judiciary, however, the Court allows such extension if
satisfied that the career of the retiree was marked by
competence, integrity and dedication to public service [In Re:
Gregorio Pineda, 187 SCRA 469]. See also Cruz v. Tantuico,
166 SCRA 670.
c) When the retiree has satisfied the requirements for retirement
under more than one subsection of Sec. 12, C.A. 108, as
amended, he is entitled to choose the subsection under which
he wants to retire [Lopez v. Court of Appeals, G.R. No. 104158,
November 6, 1992], See also Conte v. Commission on Audit,
supra..
12. Prescription of the Right to office
1. The Rules of Court provide that a petition for reinstatement
(after illegal ouster or dismissal), or the recovery of the public
office, must be instituted within one (1) year from the date the
petitioner is unlawfully ousted from his office.
a) Reason for the rule: Title to public office should not be
subjected to continued uncertainty; and the people's interest
requires that such right should be determined as speedily as
possible [Tumulak v. Egay, 82 Phil 828].
b) Filing of an action for administrative remedy does not
suspend the period for filing the appropriate judicial proceeding
[quo warranto] [Galano v. Roxas, 67 SCRA 8]. The one year
period runs even during the pendency of a motion for
reconsideration [Morales v. Patriarca, 13 SCRA 766].
 c) Unless there are strong, compelling and special
circumstances to warrant a different course, courts will not
entertain a petition for reinstatement filed beyond the one-year
period. But in Cristobal v. Melchor, 78 SCRA 175, the Supreme
Court allowed the suit filed in 1971, nine years after the
petitioner was dismissed from office, on grounds of equity.

13. Failure to Assume Office

Sec. 11, BP 881 provides: “The office of any official elected
who fails or refuses to take his oath of office within six months
from his proclamation shall be considered vacant, unless said
failure is for a cause or causes beyond his control.”

14. Conviction of a crime.

1. When the penalty imposed, upon conviction, carries with it
the accessory penalty of disqualification, conviction by final
judgment automatically terminates official relationship.
a) While a plenary pardon extinguishes the accessory
penalty of disqualification, it will not restore the public office to
the officer convicted. He must be given a new appointment to
the position [Monsanto v. Factoran, 170 SCRA 190]. But in
Sabello v. Department of Education, Culture and Sports,180
SCRA 623, for reasons of equity, the Supreme Court held that
the former elementary school principal should not be re-
appointed to a lower position than that which he formerly
occupied.

15. Filing of certificate of candidacy.

1. Sec. 66, B.P.881 provides: “Any person holding a public
appointive office or position, including active members of the
Armed Forces of the Philippines, and officers and employees in
government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.”

a) In PNOC Energy Development Corporations. NLRC, G.R.

No. 100947, May 31, 1993, it was held that this section applies
even to employees of government-owned or -controlled
corporations without an original charter.