Dela Llana v.

Alba Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The Batasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the process to abolish existing ones. The termination of office of their occupants, as a necessary consequence of such abolition, is hardly distinguishable from the practical standpoint from removal, a power that is now vested in the Supreme Court. Removal is, of course, to be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise. Nonetheless, for the incumbents of inferior courts abolished, the effect is one of separation. As to its effect, no distinction exists between removal and the abolition of the office. Realistically, it is devoid of significance. He ceases to be a member of the judiciary. Section 2, Article VIII, 1987 Constitution The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.

a. Abandonment
A public office may become vacant ipso facto by abandonment and non-user. When an office is once abandoned, the former incumbent cannot legally repossess it even by forcible reoccupancy. Abandonment must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relinquishment thereof. The officer should manifest a clear intention to abandon the office and its duties. Abandonment by reason of acceptance of another office, in order to be effective and binding, must spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. Temporary absence is not sufficient. Summers v. Ozaeta Summers, a cadastral judge, assumed office as CFI judge due to an ad interim appointment. However, the ad interim appointment was disapproved and Summers now seeks to be reappointed as cadastral judge. SC held that Summers voluntary acceptance of the position of CFI judge amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. He accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an acting judge-at-large. The situation is one wherein he cannot legally hold two offices of similar category at the same time. a. Incompatible Office He who, while occupying one office, accepts another office 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. And even though the title to the second office fails as where election is void, the rule is still the same, nor can the officer then regain the possession of his former office to which another has been appointed or elected. If the law or Constitution as an expression of public policy forbids the acceptance by a public officer of any other office other than that which he holds, it is not a case of incompatibility but of legal prohibition. Incompatibility of offices exists where: There is conflict in such duties and functions so that the performance of the duties of one interferes with the performance of the duties of another, as to render it improper for considerations of public policy for one person to retain both. One is subordinate to the other and is subject in some degree to its supervisory powers for in such situation where both are held by the same person, the design that one acts as a check on the other would be frustrated. The Constitution or the law itself, for reasons of public policy, declares the incompatibility even though there is no inconsistency in the nature and functions of the offices. Exceptions to the Rule on Holding of Incompatible Offices Where the officer cannot vacate the first office by his own act, upon the principle that he will not be permitted to thus do indirectly what he could not do directly, as where the law requires the approval of the provincial board before a municipal official can resign. First office is held under a different government from that which conferred the second. Officer is expressly authorized by law to accept another office. Second office is temporary.

a. Resignation

A resignation of a public officer need not be in any particular form, unless some form is prescribed by statute. Ordinarily, it may either be in writing or by parol. There must be an intention to relinquish a part of the term, accompanied by the act of relinquishment. The right of a public officer to resign is well recognized, even where it is provided than an officer may hold over until election and qualification of a successor. Conflicting Views: According to some authorities, no acceptance is necessary to render a resignation effective, especially when the resignation is unconditional and purports to take effect immediately. Many other cases take the view that to be effective, the resignation must be accepted by competent authority. Without acceptance, the resignation is nothing and the officer remains in office. (63 Am Jur 2d., sec. 163) Two elements are necessary to constitute an effective acceptance: (1) intention to relinquish office coupled with actual relinquishment; and (2) acceptance of resignation. A courtesy resignation cannot properly be interpreted as resignation in a legal sense. It just manifests the submission of a person to the will of the political authority. Courtesy resignation is not allowed in (1) career positions and (2) non-career positions with security of tenure (i.e. local elective officials).

a. Removal 1. Protection from Removal without Cause No officer or employee of the civil service shall be removed or suspended except for cause 1. Grounds for Removal from Office For Presidential appointees, there is no specific law providing for the grounds for their removal.
Determination of grounds is just a matter of practice and by analogy, the grounds used for non-presidential appointees are made applicable. For civil service officials and employees, see Sec. 46, Book V, E.O. No. 292 which provides for at least 30 grounds for disciplinary action. For local elective officials, Sec. 60 of the Local Government Code provides for the grounds where an elective local official may be disciplined, suspended or removed from office. Misconduct need not be in office in case of appointive officers. Misconduct must be in office in case of elective officers. Misconduct committed during a prior term, not a ground for dismissal Ochate v. Ty Deling The SC held that the facts alleged in the administrative charge, as substantiated by the affidavits of the complainants, do not justify the administrative proceedings instituted against the petitioner and his suspension by the governor. The alleged libel imputed to the mayor was not such misconduct even if the term misconduct in office be taken in its broadest sense. The radio broadcast in which the objectionable utterances were made had nothing to do with his official functions and duties as a mayor. 1. Transfer from One Position to Another May or May Not Constitute Violation of Security of Tenure A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in service involving the issuance of an appointment. It shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefore. If the employee believes that there is no justification for the transfer, he may appeal to the SC. The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency; Provided, however that any movement from the non-career service to the career service shall not be considered a transfer. The intended transfer to Tarlac, if carried out without the approval of Lacson, would be equivalent to a removal from his office in Negros Oriental. The reason is that a fiscal is appointed for each province and Lacson could not legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. Therefore, to be a fiscal of Tarlac must mean his removal from office in Negros. Since the transfer is considered a removal, such should be for cause in order for the other person to legally occupy the office in Negros. There was no cause for Lacsons removal. He therefore remains as fiscal of Negros (Lacson v. Romero). g. Others Recall The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum (Sec. 3, Art. X, 1987 Constitution) The procedure for recall is provided in Sections 69-75 of the Local Government Code. Prescription of Right to Office Unabia v. City Mayor provided by law (Sec. 2(3), Art. IX, 1987 Constitution).

Any person claiming a right to a position in the civil service is required to file his petition for reinstatement within one year, otherwise he is deemed to have abandoned his office. Reason is public policy and convenience, stability in the public service. The one-year period is the prescriptive period to claim public office (whether through quo warranto or otherwise). The one-year period presupposes judicial action, not administrative action. 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 cause or causes beyond his control.

If it is valid abolition or reorganization, not removal, then no violation of security of tenure then no award of reinstatement for your client Unitl the presence of section 11 (check if 1) of article 8 --- no law shall be passed reorganizing the judiciary when it undermines the security of tenure of its members. Q: what if you abolish courts, is this violation of security of tenure? A: but note that what is used in the said provision is UNDERMINE. Thus even if it is not a direct violation, it still undermines the security of tenure. .. because if you just use VIOLATE, then you can abolish the courts. But because the term used is undermine thus it is not really violation. Thus to the general principle on abolition --- there is a special law of this article (it is when you undermine) THE ACCEPTANCE OF INCOMPATIBLE OFFICE can be a way for terminating a public office. Lets just say that guitterez resigns, and de lima is placed as ombudsman. Now you have vacancy of the secretary of the dept of justice. President will name kikko pangilinan to be secretary of justice. It is not forbidden because DOJ is not a new office and there was no increase in emoluments during the term of the officer. It is your acceptance of the office will result to the automatic forfeiture of your office. RESIGNATION Must be voluntary There are resignation forced by circumstances --- forced resignation that would amount to dismissal But the very heart of resignation is voluntariness