POLITICAL LAW REVIEWER TABLE of CONTENTS

LAW ON PUBLIC OFFICERS

Table of Contents

Chapter I. Public Office and Officers........... 234 Election .................................................. 248

A. Public Office.......................................... 234 C. Appointment.......................................... 248
1. Definition........................................... 234 1. Definition ........................................... 248
2. Purpose ............................................ 235 2. Nature of Power to Appoint ............ 248
3. Nature ............................................... 235 3. Classification of Appointments ...... 248
4. Elements........................................... 235 4. Steps in Appointing Process .......... 249
5. Public Office v. Public Employment 5. Presidential Appointees .................. 249
235 D. Qualification Standards and
6. Public Office v. Public Contract ..... 236 Requirements under the Civil Service Law250
7. No vested right to public office ...... 236 1. Qualification Standards................... 250
8. Public Office is not Property .......... 236 2. Political Qualifications for an Office
9. Creation of Public Office ................ 236 250
10. Methods of Organizing Public 3. No Property Qualifications ............. 250
4. Citizenship ........................................ 250 233
Offices 237
5. Effect of Removal of Qualifications

LAW ON PUBLIC OFFICERS

11. Modification and Abolition of Public
Office 237 During the Term ........................................ 251
12. Estoppel in Denying Existence of 6. Effect of Pardon upon the
Office 237 Disqualification to Hold Public Office
B. Public Officer ........................................ 237 251
1. Definition........................................... 237 E. Discretion of Appointing Official ......... 251
2. A Person Cannot be Compelled to F. Effectivity of Appointment ................... 251
Accept a Public Office .............................. 238 G. Effects of a Complete, Final and
3. Public Officer’s Power is Delegated Irrevocable Appointment 252
(not Presumed) ......................................... 238 H. Civil Service Commission’s (CSC’s)
C. Classification of Public Offices and Jurisdiction 252
Public Officers ................................................ 239 I. Appointments to the Civil Service ...... 252
D. De Facto Officers ................................. 239
1. De Facto Doctrine ........................... 239
2. De Facto Officer Defined................ 239
3. Elements of a De Facto Officership
240
4. Office created under an
unconstitutional statute ....
241
5. Legal Effect of Acts of De Facto
Officers ....................................................... 241
6. Liabilities of De Facto Officers ....... 241
7. Right to Compensation of De Facto
Officer ......................................................... 241

Chapter II. Eligibility and Qualifications ..... 243

A. Definition ............................................... 243
B. Power to Prescribe Qualifications ...... 243
C. Time of Possession of Qualifications 244
D. Eligibility is Presumed ......................... 244
E. Qualifications Prescribed By
Constitution ....
244
F. Religious Test or Qualification is not
Required ................................. 245
G. Disqualifications to Hold Public Office
245

Chapter III. Formation of Official Relation .248

A. Modes of Commencing Official Relation
248
B.
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

Chapter I. Public Office and Officers

LAW ON PUBLIC OFFICERS TEAM

LAW ON PUBLIC OFFICERS

Prof. Gisella Dizon-Reyes A. PUBLIC OFFICE
Faculty Editor
1. DEFINITION
Ria Dooc 2. PURPOSE
Lead Writer 3. NATURE
Dianne Patawaran 4. ELEMENTS
Mike Rivera 5. PUBLIC OFFICE V. PUBLIC EMPLOYMENT
Writers 6. PUBLIC OFFICE V. PUBLIC CONTRACT
7. NO VESTED RIGHT TO PUBLIC OFFICE
POLITICAL LAW 8. PUBLIC OFFICE V. PROPERTY
Jennifer Go 9. CREATION OF PUBLIC OFFICE
Subject Editor 10. PUBLIC
OFFICE
ACADEMICS COMMITTEE 11. AND OF
Kristine Bongcaron PUBLIC OFFICE
Michelle Dy 12. ESTOPPEL IN DENYING EXISTENCE OF
Patrich Leccio OFFICE
Editors-in-Chief B. PUBLIC OFFICER
1. DEFINITION 234
PRINTING & DISTRIBUTION 2. A PERSON CANNOT BE COMPELLED TO

LAW ON PUBLIC OFFICERS

Kae Guerrero ACCEPT PUBLIC OFFICE; EXCEPTIONS
3. IS
DESIGN & LAYOUT DELEGATED, NOT PRESUMED
C. CLASSIFICATION OF PUBLIC OFFICES AND
Pat Hernandez PUBLIC OFFICERS
Viktor Fontanilla D. DE FACTO OFFICERS
Rusell Aragones 1. DE FACTO DOCTRINE
Romualdo Menzon Jr. 2. DEFINITION OF DE FACTO OFFICER
Rania Joya DE FACTO V. DE JURE
LECTURES COMMITTEE OFFICER DE FACTO V. INTRUDER
3. ELEMENTS OF DE FACTO OFFICERSHIP
Michelle Arias 4. OFFICE CREATED UNDER AN
Camille Maranan UNCONSTITUTIONAL STATUTE
Angela Sandalo 5. LEGAL EFFECT OF ACTS OF DE FACTO
Heads OFFICERS
Katz Manzano Mary Rose Beley 6. LIABILITIES OF DE FACTO OFFICERS
Sam Nuñez Krizel Malabanan 7. RIGHT DE
Arianne Cerezo Marcrese Banaag FACTO OFFICER
Volunteers

MOCK BAR COMMITTEE A. Public Office

Lilibeth Perez 1. Definition
BAR CANDIDATES WELFARE
 The term "public office" is frequently used to
Dahlia Salamat refer to the right, authority and duty, created
and conferred by law, by which, for a given
LOGISTICS
period either fixed by law or enduring at the
Charisse Mendoza pleasure of the creating power, an individual
is invested with some portion of the
SECRETARIAT COMMITTEE sovereign functions of government, to be
Jill Hernandez exercised by that individual for the benefit of
Head the public. [Fernandez v. Sto. Tomas
Loraine Mendoza Faye Celso (1995)]
Mary Mendoza Joie Bajo
Members  Breakdown of the definition:
 (nature) right, authority and duty
 (origin) created and conferred by law
 (duration) by which for a given period –
either:
1) fixed by law or
POLITICAL LAW REVIEWER
2) enduring at the pleasure of the
appointing power
 an individual is invested with some
portion of the sovereign functions of the
government
 (purpose) to be exercised by him for the
benefit of the public.
2. Purpose
 to effect the end for the government’s
institution : common good;
 NOT profit, honor, or private interest of any
person, family or class of persons [63 Am
Jur 2d 667]
3. Nature
Philippine Constitution
Art. XI
Sec. 1. Public office is a public trust. Public officers
and employees must, at all times, be accountable to
the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism
and justice, and lead modest lives.
 Public office is a responsibility, not a right.
[Morfe v. Mutuc (1968)]
4. Elements
i. Created by law or by authority of law
 Public office must be created by:
 Constitution
 National Legislation
 Municipal or other body’s legislation,
via authority conferred by the
Legislature
 The first element defines the mode of
creation of a public office while the other
elements illustrate its characteristics.
ii. Possess a delegation of a portion of the
sovereign powers of government, to be
exercised for the benefit of the public
 There are certain GOCCs which, though
created by law, are not delegated with a
portion of the sovereign powers of the
government (those that are purely
proprietary in nature), and thus may not be
considered as a Public Office.
iii. Powers conferred and duties imposed must
be defined, directly or impliedly
iv. Duties must be performed independently
and without the control of a superior power
other than the law, UNLESS for duties of an
Chapter I. PUBLIC OFFICE and OFFICERS
inferior or subordinate office that created or
authorized by the Legislature and which
inferior or subordinate office is placed under
the general control of a superior office or
body
 Defined as unhindered performance.
v. Must have permanence and continuity
 Note: The elements of permanence and
continuity are dispensable.
 On the dispensability of the element of
permanence: an example is the public office
of the Board of Canvassers, yet its duties
are only for a limited period of time.
 On the dispensability of the element of
continuance: Mechem in one case states
that the “the most important
characteristic” in characterizing a 235
position as a public office is the
LAW ON PUBLIC OFFICERS
DELEGATION to the individual of some
of the sovereign functions of
government.
 Here, the court held that Laurel, as chair
of the National Centennial Commission
(NCC), is a public officer. The public
office of NCC was delegated and is
performing executive functions: it
enforces the conservation and
promotion of the nation’s historical and
cultural heritage.
 Such delegated function is a policy
embodied in the Constitution. It is
inconsequential that Laurel was not
compensated during his tenure. A salary
is a usual (but not necessary) criterion
for determining the nature of a position.
Also, the element of continuance is not
indispensable. [Laurel v. Desierto
(2002)]
- as in the case of Ad Hoc Bodies or
commissions
5. Public Office v. Public Employment
 Public employment is broader than public
office. All public office is public employment,
but not all public employment is a public
office.
 Public employment as a position lacks either
one or more of the foregoing elements of a
public office.
(Bernard v. Humble [182 S.W. 2d. 24.
1
Cited by De Leon, page 8-9])
- created by contract rather than by force of
law
1
ALL DE LEON CITATIONS BASED ON: De Leon, Hector.
THE LAW ON PUBLIC OFFICERS AND ELECTION LAW.
Rex Bookstore (2000).
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

 the most important characteristic which
distinguishes an office from an employment
is that:
 the creation and conferring of an office
involves a delegation to the individual of
some of the sovereign functions of
government, to be exercised by him for
the benefit of the public, and
 that the same portion of the sovereignty
of the country, either legislative,
executive or judicial, attached, for the
time being, to be exercised for the public
benefit.
Unless the powers so conferred are of this
nature, the individual is not a public officer.
[Laurel v. Desierto (2002)]
6. Public Office v. Public Contract
Public Office Public Contract
sense, a right to his office. If that right is to
be taken away by statute, the terms
should be clear. [Segovia v. Noel (1925)]
8. Public Office is not Property.
 A public office is not the property of the
public officer within the meaning of the due
process clause of the non-impairment of the
obligation of contract clause of the
Constitution.
 It is a public trust/agency. Due process
is violated only if an office is considered
property. However, a public office is not
property within the constitutional
guaranties of due process. It is a
public trust or agency. As public
officers are mere agents and not rulers
of the people, no man has a proprietary 236
or contractual right to an office.

LAW ON PUBLIC OFFICERS

How Incident of Originates from [Cornejo v. Gabriel (1920)]
Created sovereignty. will of contracting
Sovereignty is parties.  It is personal. Public office being
omnipresent. personal, the death of a public officer
Object To carry out the Obligations terminates his right to occupy the
sovereign as well as imposed only upon
governmental the persons who
contested office and extinguishes his
functions affecting entered into the counterclaim for damages. His widow
even persons not contract. and/or heirs cannot be substituted in the
bound by the counterclaim suit. [Abeja v. Tañada
contract. (1994)]
Subject A public office Limited duration and
Matter embraces the idea specific in its object.  Exceptions:
of tenure, duration, Its terms define and  In quo warranto proceedings relating
continuity, and the limit the rights and to the question as to which of 2 persons
duties connected obligations of the is entitled to a public office
therewith are parties, and neither  In an action for recovery of
generally continuing may depart
compensation accruing by virtue of the
and permanent. therefrom without
the consent of the public office
other.
Scope Duties that are Duties are very 9. Creation of Public Office
generally continuing specific to the
and permanent. contract.  Modes of Creation of Public Office
Where The law Contract  by the Constitution
duties  by statute / law
are
defined  by a tribunal or body to which the power
to create the office has been delegated

7. No vested right to public office.  How Public Office is Created

 GENERAL RULE: The creation of a
GENERAL RULE: A public office, being a mere public office is PRIMARILY a Legislative
privilege given by the State, does not vest any Function.
right in the holder of the office. This rule applies  EXCEPTIONS:
when the law is clear.  where the offices are created by the
EXCEPTION: When the law is vague, the Constitution;
person’s holding of the office is protected and he  where the Legislature validly
should not be easily deprived of his office. delegates such power.

 A public office is neither property nor a  Legislature should Validly Delegate the
public contract. Yet the incumbent has, in a Power to Create a Public Office
 POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

 Or else, the office is inexistent. The
President’s authority to "reorganize
within one year the different executive
departments, bureaus and other
instrumentalities of the Government" in
order to promote efficiency in the public
service is limited in scope and cannot be
extended to other matters not embraced
therein. [UST v. Board of Tax Appeals
(1953)]
Therefore, an executive order
depriving the Courts of First Instance of
jurisdiction over cases involving
recovery of taxes illegally collected is
null and void, as Congress alone has
the "power to define, prescribe and
apportion the jurisdiction of the various
courts." [Art. VIII sec. 2, 1987
Constitution]
carries with it the power to abolish it.
[Ocampo v. Sec. of Justice (1955)]
 Is Abandonment equivalent to Abolition?
When a public official voluntarily accepts an
appointment to an office newly created by
law -- which new office is incompatible
with the former -- he will be considered to
have abandoned his former office.
 Except when the public official is
constrained to accept because the non-
acceptance of the new appointment would
affect public interest. (no abandonment)
[Zandueta v. De La Costa (1938)]
12. Estoppel in Denying Existence of
Office
 A person is estopped from denying that he 237
has occupied a public office when he has

LAW ON PUBLIC OFFICERS

But note: No law shall be passed acted as a public officer; more so when he
increasing the appellate jurisdiction of has received public monies by virtue of such
the Supreme Court as provided in this office. [Mendenilla v. Onandia (1962)]
Constitution without its advice and
concurrence. [Art. VI, sec. 30, 1987
Constitution] B. Public Officer
1. Definition
10. Methods of Organizing Public Offices
 (What he is) He performs governmental
Method Composition Efficiency
public functions / duties which involve the
Single- one head assisted Swifter decision and
head by subordinates action exercise of discretion ( not clerical or
but may sometimes manual)
be hastily made
Board collegial body for Mature studies and
 (How he became Public Officer) by virtue of
System formulating polices deliberations but direct provision of law, popular election, or
and implementing may be slow in appointment by competent authority.
programs responding to issues
and problems (Who ARE Public Officers)
 Administrative Code
 Sec. 2.
11. Modification and Abolition of Public (14) The term “officer” includes any government
Office employee, agent, or body authorized to
exercise governmental power in performing
 GENERAL RULE: The power to create an particular acts or functions
office includes the power to modify or
abolish it (i.e. Legislature generally has this Revised Penal Code
power) Art 203. Who are public officers—for the
purpose of applying the provisions of this and
 EXCEPTIONS: the preceding titles of this book, any person
 Where the Constitution prohibits such who, by direct provision of the law, popular
modification / abolition; election or appointment by competent authority,
 Where the Constitution gives the people shall take part in the performance of public
functions in the Government of the Philippine
the power to modify or abolish the office
Islands, or shall perform in said Government or
[i.e. Recall] in any of its branches public duties as an
 Abolishing an office also abolishes employee, agent or subordinate official of any
unexpired term. The legislature’s rank or class, shall be deemed to be a public
abolition of an office (i.e. court) also officer
abolishes the unexpired term. The
legislative power to create a court  Persons in authority and their agents.
Article 152, Revised Penal Code.
POLITICAL LAW REVIEWER
 A PERSON IN AUTHORITY is any
person, either an individual or a
member of a governmental body,
who is directly vested with
jurisdiction.
o The barrio captains and
barangay chairpersons are
included.
o For RPC Articles 148 [Direct
Assaults] and 151 [Resistance
and Disobedience], teachers,
professors, and persons
charged with the supervision of
public or duly recognized private
schools, colleges and
universities are included.
 An AGENT of a person in authority
is charged with the maintenance of
public order and the protection and
security of life and property.
o They become such either by
direct provision of law, by
election or by a competent
authority’s appointment.
o Examples are barrio captain,
barrio councilman, barrio
policeman, barangay leader,
and any person who comes to
the aid of persons in authority.
 Temporary performer of public functions.
A person performing public functions
- even temporarily – is a public
official. Here, a laborer temporarily in
charge of issuing summons and
subpoenas for traffic violations in a
judge's sala was convicted for bribery
under RPC 203.
According to the Court, the law is
comprehensive: “who, by direct
provision of law, popular election or
appointment by competent authority,
shall take part in the performance of
public functions in the Philippine
Government, or shall perform in said
government or any of its branches,
public duties as an employee, agent or
subordinate official or any rank or class
[Maniego v. People (1951)]
 Money order-sorter and –filer.
A person sorting and filing money orders
in the Auditor's Office of the Bureau of
Posts is obviously doing a public
function or duty. Such person here was
convicted for infidelity in the custody of
documents. [People v. Paloma (1997)]
Chapter I. PUBLIC OFFICE and OFFICERS
 (Who are NOT Public Officers)
 Special policemen salaried by a private
entity and patrolling only the premises of
such private entity [Manila Terminal
Co. v. CIR (1952)]
 Concession forest guards [Martha
Lumber Mill v. Lagradante (1956)]
 Company cashier of a private
corporation owned by the government
[Tanchoco v. GSIS (1962)]
2. A Person Cannot be Compelled to
Accept a Public Office.
 EXCEPTIONS:
 When citizens are required, under
conditions provided by law, to render
personal military or civil service (see
238
Sec. 4, Art. II, 1987 Const.);
 When a person who, having been
LAW ON PUBLIC OFFICERS
elected by popular election to a public
office, refuses without legal motive to be
sworn in or to discharge the duties of
said office. This is a felony.
 Art 234, RPC: Refusal to discharge
elective office- 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.
3. Public Officer’s Power is Delegated
(not Presumed)
 A public official exercises power, not rights.
The government itself is merely an agency
through which the will of the state is
expressed and enforced. Its officers
therefore are likewise agents entrusted with
the responsibility of discharging its functions.
As such, there is no presumption that
they are empowered to act. There must
be a DELEGATION of such authority,
either express or implied. In the absence
of a valid grant, they are devoid of power.
[Villegas v. Subido (1971)]
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

C. Classification of Public Offices and

 A person is a de facto officer when the
Public Officers duties of his office are exercised under ANY
of the following circumstances:
Creation Constitutional 1. There is no known appointment or
Statutory election, but people are induced by
Public Body Served National circumstances of reputation or
Local acquiescence to suppose that he is the
Department of government to Legislative officer he assumes to be.
which their functions pertain Executive Consequently, people do not to
Judicial inquire into his authority, and they
Nature of functions Civil submit to him or invoke his action;
Military 2. He possessed public office under
Exercise of Judgment or Quasi-judicial color of a known and valid
Discretion Ministerial appointment or election, but he failed
Legality of Title to office De Jure to conform to some precedent
De Facto requirement or condition (e.g., taking an
Compensation Lucrative oath or giving a bond);
Honorary 3. He possessed public office under color 239
of a known election or appointment, but

LAW ON PUBLIC OFFICERS

such is VOID because:
 He’s ineligible;
D. De Facto Officers
 The electing or appointing body is
1. De Facto Doctrine not empowered to do such;
 His exercise of his function was
 It is the doctrine that a person who is defective or irregular;
admitted and sworn into office by the proper  (Important) The public does NOT
authority is deemed to be rightfully in KNOW of such ineligibility, want of
such office until: power, or defect being.
(a) he is ousted by judicial declaration in a  He possessed public office under color
proper proceeding; or of an election or an appointment by or
(b) his admission thereto is declared void. pursuant to a public, unconstitutional
 Doctrine’s Purpose: to ensure the orderly law, before the same is adjudged to
functioning of government. The public be such.
cannot afford to check the validity of the  What is unconstitutional is the
officer's title each time they transact with officer’s appointment to an office not
him. legally existing, (not creation of an
unconstitutional office). [Norton v.
County of Shelby (1886)]
2. De Facto Officer Defined
 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. [Torres v.
Ribo (1948)]
 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.
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

a. Officer De Jure v. Officer De Facto

(Asked in 2000, 2004)

De Jure De Facto
Requisites A de jure office exists; De jure office;

He is legally qualified for the office; He assumed office under color of right or
general acquiescence by the public;
He is lawfully chosen to such office;
He actually and physically possessed
He undertakes to perform the duties of the office in good faith.
such office according to law’s prescribed
mode.
Basis of Right: Reputation: He possesses office and
Authority He has the lawful right / title to the office performs its duties under color of right,
but he is not technically qualified to act
in all points of law
How ousted Cannot be ousted. In a direct proceeding (quo warranto);
(≠ collaterally) 240
Validity of official Valid, subject to exceptions (e.g., acting Valid as to the public until his title to the

LAW ON PUBLIC OFFICERS

acts beyond his scope of authority, etc.) office is adjudged insufficient.
Rule on Rightfully entitled to compensation; Conditionally entitled to receive
Compensation compensation: only when no de jure
The principle "No work, no pay" is officer is declared;
inapplicable to him.
He is paid only for actual services
rendered.
b. Officer De Facto v. Intruder

De Facto Intruder
Nature He becomes officer under any of the 4 He possesses office and performs
circumstances discussed under Part II official acts without actual or apparent
(above). authority.
Basis of authority Color of right or title to office None. Neither lawful title nor color of
right to office.
Validity of Valid as to the public until his title to the Absolutely void; His acts can be
"official" acts office is adjudged insufficient impeached at any time in any
proceeding (unless and until he
continues to act for a long time, creating
a presumption of his right to act) (De
Leon, 119)
Rule on Entitled to receive compensation only Not entitled to compensation at all.
compensation when no de jure officer is declared and
only for actual services rendered.

 An intruder / usurper may be presumed a de b. Known and valid appointment or election

facto officer with the passage of time, when
the public presumes in their minds IN GOOD
FAITH that the intruder is rightfully acting as
a public officer.
3. Elements of a De Facto Officership
i. A validly existing public office;
ii. Actual physical possession of the office in
good faith;
iii. Color of title to the office:
a. Reputation or acquiescence;
but the officer failed to conform to a
legal requirement
c. Known appointment or election but void
because of ineligibility of the officer, or
want of authority of the appointing or
electing authority, or because of an
irregularity in his appointment or
election, such ineligibility, want of
authority or irregularity being unknown
to the public
POLITICAL LAW REVIEWER
d. Known appointment or election pursuant
to an unconstitutional law before
declaration of unconstitutionality
 Who are NOT considered De Facto
Officers?
 A judge who has accepted an
appointment as finance secretary and
yet renders a decision after his
acceptance: if he has ceased to be
judge by actually accepting and entering
into some other office and has actually
entered upon the performance of the
duties of the other office, it is difficult to
understand how he can still be
considered as actually occupying and
performing the duties of the office which
he had abandoned and vacated. An
abandonment and a vacation of an
office is inconsistent and repugnant
to the idea of actually continuing to
perform the duties of such office;
[Luna v. Rodriguez (1917)]
 A judge whose position has already
been lawfully abolished, and yet
promulgates a decision in a criminal
case after the abolition and over the
fiscal’s objection [People v. So (1995)]
4. Office created under an
unconstitutional statute
 The prevalent view is that a person appointed
or elected in accordance with a law later
declared to be unconstitutional may be
considered de facto at least before the
declaration of unconstitutionality.
5. Legal Effect of Acts of De Facto
Officers
[Monroy v. CA (1967)]
 As regards the officers themselves: A party
suing or defending in his own right as a public
officer must show that he is an officer de jure.
It is not sufficient that he be merely a de
facto officer.
 As regards the public and third persons: The
acts of a de facto officer are valid as to third
persons and the public until his title to
office is adjudged insufficient.
 RATIONALE: The doctrine is intended not
for the protection of the public officer, but
for the protection of the public and
individuals who get involved in the official
acts of persons discharging the duties of a
public office.
 De Facto Officer’s Official Acts are not subject
to collateral attack
Chapter I. PUBLIC OFFICE and OFFICERS
 RULE: A de facto officer’s and his acts’
validity cannot be collaterally questioned
(in proceedings where he is not a party, or
were not instituted to determine the very
question).
 REMEDY: Quo warranto proceedings
filed by:
 The person claiming entitlement
to the office;
 The Republic of the Philippines
(represented by the Solicitor-
General or a public prosecutor).
6. Liabilities of De Facto Officers
(De Leon, 130-131)
 A de facto officer generally has the same
degree of liability in accountability for official
acts like a de jure officer. 241
 The de facto officer may be liable for all
LAW ON PUBLIC OFFICERS
imposable penalties for ANY of the following
acts:
 usurping or unlawfully holding office;
 exercising the functions of public office
without lawful right;
 ineligibility for the public office as required
by law
 The de facto officer cannot excuse
responsibility for crimes committed in his
official capacity by asserting his de facto
status.
7. Right to Compensation of De Facto
Officer
 GENERAL RULE: None. A de facto officer
cannot sue for the recovery of salary, fees or
other emoluments attached to the office, for
the duties he has performed. His acts, as far
as he himself is concerned, are void. (63A
Am. Jur. 2d 1094-1095)
the rightful incumbent may recover from the
de facto officer the salary received by the
latter during his wrongful tenure, even
though he entered into the office in good
faith and under color of title.[ Monroy v CA
(1967)]
 EXCEPTIONS
 Where there is no de jure public officer, the
officer de facto who in good faith has had
possession of the office and has
discharged the duties pertaining thereto is
legally entitled to the emoluments of the
office. [Monroy v. CA [1967])
 In Civil Liberties Union v. Executive
Secretary (1991), even as EO No. 284 was
declared unconstitutional because it
allowed Cabinet members to hold multiple
offices in direct contravention of the
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

Constitution, it was held that during their

tenure in the questioned positions, the
respondents may be considered de facto
officers and as such entitled to the
emoluments of the office/s for actual
service rendered.
 A de facto officer, not having good title,
takes the salaries at his risk and must
account to the de jure officer (when there is
one) for whatever salary he received during
the period of his wrongful tenure, even if he
occupied the office in good faith.
 BUT when the de jure officer assumed
another position under protest, for
which she received compensation:
while her assumption to the said
position and her acceptance of the
corresponding emoluments do not
constitute abandonment of her rightful
office, she cannot recover full back 242
wages for such. She is only entitled to

LAW ON PUBLIC OFFICERS

back pay differentials between the
salary rates for the lower position she
assumed and the position she is
rightfully entitled to. [Gen. Manager,
Philippine Ports Authority v.
Monserate (2002)]
POLITICAL LAW REVIEWER
 RESTRICTIONS on the Power of Congress
Chapter II. Eligibility and Qualifications
A. DEFINITIONS
B. POWER TO PRESCRIBE QUALIFICATIONS
C. TIME OF POSSESSION OF QUALIFICATIONS
D. PRESUMPTION OF ELEGIBILITY
E. QUALIFICATIONS USUALLY PRESCRIBED
F. RELIGIOUS TEST/QUALIFICATION IS NOT
REQUIRED
G. PUBLIC
OFFICE
A. Definition
 Eligibility: endowment / requirement /
accomplishment that fits one for a public
office.
 Qualification: endowment / act which a
person must do before he can occupy a
public office.
 Note: Failure to perform an act required by
law could affect the officer’s title to the given
office. Under BP 881, the office of any
elected official 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.
 An oath of office is a qualifying
requirement for a public office. Only
when the public officer has satisfied this
prerequisite can his right to enter into
the position be considered plenary and
complete. Until then, he has none at all,
and for as long as he has not qualified,
the holdover officer is the rightful
occupant. [Lecaroz v. Sandiganbayan
(1999)]
 Once proclaimed and duly sworn in
office, a public officer is entitled to
assume office and to exercise the
functions thereof. The pendency of an
election protest is not sufficient basis to
enjoin him from assuming office or from
discharging his functions. [Mendoza v.
Laxina (2003)]
B. Power to Prescribe Qualifications
 GENERAL RULE: Congress is empowered
to prescribe the qualifications for holding
public office.
 In the absence of constitutional inhibition,
Congress has the same right to provide
disqualifications that it has to provide
qualifications for office. (De Leon, 23)
Chapter II. ELIGIBILITY and QUALIFICATIONS
to Prescribe Qualifications:
 Congress cannot exceed its
constitutional powers;
 Congress cannot impose conditions of
eligibility inconsistent with constitutional
provisions;
 The qualification must be germane to
the position ("reasonable relation" rule);
 Where the Constitution establishes
specific eligibility requirements for a
particular constitutional office, the
constitutional criteria are exclusive, and
Congress cannot add to them except if
the Constitution expressly or impliedly
gives the power to set qualifications.
 Congress cannot prescribe qualifications
so detailed as to practically amount to
making a legislative appointment: it is 243
unconstitutional and therefore void for
LAW ON PUBLIC OFFICERS
being a usurpation of executive power –
examples:
 Extensions of the terms of office of
the incumbents;
 A proviso which limits the choices of
the appointing authority to only one
eligible, e.g. the incumbent Mayor of
Olongapo City; [Flores v. Drilon
(1993)]
 Designating an unqualified person.
The People's Court Act, which
provided that the President could
designate Judges of First Instance,
Judges-at-large of First Instance or
Cadastral Judges to sit as substitute
Justices of the Supreme Court in
treason cases without them
necessarily having to possess the
required constitutional qualifications
of a regular Supreme Court Justice.;
[Vargas v. Rilloraza (1948)]
 Automatic transfer to a new office. A
legislative enactment abolishing a
particular office and providing for the
automatic transfer of the incumbent
officer to a new office created;
[Manalang v. Quitorano (1954)]
 Requiring inclusion in a list. A
provision that impliedly prescribes
inclusion in a list submitted by the
Executive Council of the Phil.
Medical Association as one of the
qualifications for appointment; and
which confines the selection of the
members of the Board of Medical
Examiners to the 12 persons
included in the list; [Cuyegkeng v.
Cruz (1960)]
POLITICAL LAW REVIEWER
C. Time of Possession of Qualifications
 At the time specified by the Constitution or
law.
 If time is unspecified, 2 views:
a. qualification during commencement of
term or induction into office;
b. qualification / eligibility during election or
appointment
(De Leon, 26-27)
 Eligibility is a continuing nature, and must
exist throughout the holding of the public
office. Once the qualifications are lost, the
public officer forfeits the office.
 No estoppel in ineligibility. Knowledge of
ineligibility of a candidate and failure to
question such ineligibility before or
during the election is not a bar to
questioning such eligibility after such
ineligible candidate has won and been
proclaimed. Estoppel will not apply in
such a case. [Castaneda v. Yap (1952)]
 Citizenship requirement should be
possessed on start of term (i.e. ≠ on
filing candidacy). The Local Government
Code does not specify any particular
date or time when the candidate must
possess the required citizenship, unlike
for residence and age. The requirement
is to ensure that no alien shall govern
our people and country or a unit of
territory thereof. An official begins to
govern or discharge his functions only
upon proclamation and on start of his
term. This liberal interpretation gives
spirit, life and meaning to our law on
qualifications consistent with its
purpose. [Frivaldo v. COMELEC
(1996)]
D. Eligibility is Presumed
 IN FAVOR of one who has been elected or
appointed to public office.
 The right to public office should be strictly
construed against ineligibility.
(De Leon, 26)
E. Qualifications Prescribed By
Constitution
1. For President
(Sec. 2, Art. VI, Constitution) and Vice
President (Sec. 3, Art. VII, Constitution)
 Natural-born citizen
 40 years old on election day
 Philippine resident for at least 10 years
immediately preceding election day
Chapter II. ELIGIBILITY and QUALIFICATIONS
2. For Senator
(Sec. 3, Art. VI, Constitution)
 Natural-born citizen
 35 years old on election day
 able to read and write
 registered voter
 resident of the Philippines for not less
than two years immediately preceding
election day
3. For Congressmen
(Sec. 6, Art. VI, Constitution)
 Natural-born citizen
 25 years old on election day
 able to read and write
 registered voter in district in which he
shall be elected
 resident thereof for not less than one
year immediately preceding election day
244
LAW ON PUBLIC OFFICERS
4. Supreme Court Justice
 Natural born citizen
 at least 40 years old
 15 years or more as a judge or engaged
in law practice
 of proven competence, integrity, probity
and independence (C.I.P.I.)
5. Civil Service Commissioners
(Sec. 1 [1], Art. IXB. Constitution)
 Natural-born citizen
 35 years old at time of appointment
 proven capacity for public administration
 not a candidate for any elective position
in election immediately preceding
appointment
6. COMELEC Commissioners
(Sec. 1[1], Art. IXC)
 Natural-born citizen
 35 years old at time of appointment
 college degree holder
 not a candidate for elective position in
election immediately preceding
appointment
 chairman and majority should be
members of the bar who have been
engaged in the practice of law for at
least 10 years
7. COA Commissioners
 Natural-born citizen
 35 years old at time of appointment
 CPA with >10 year of auditing
experience or
 Bar member engaged in practice of law
for at least 10 years
POLITICAL LAW REVIEWER Chapter II. ELIGIBILITY and QUALIFICATIONS

 Not candidates for any elective position
in election immediately preceding
appointment.
 “Practice of Law” defined. Practice of law
means any activity, in or out of court,
which requires the application of law,
legal procedure, knowledge, training and
experience. Generally, to practice law is to
give notice or render any kind of service
which requires the use in any degree of
legal knowledge or skill. [Cayetano v.
Monsod (1991)]
 In the dissenting opinion of Justice Padilla in
the case of Cayetano v. Monsod, citing
Agpalo, he stated that engaging in the
practice of law presupposes the existence of
lawyer-client relationship. Hence, where a
lawyer undertakes an activity which requires
ineligible (i.e. disqualified from holding such
office).
 Authority: The legislature has the right to
prescribe disqualifications in the same
manner that it can prescribe qualifications,
provided that the prescribed disqualifications
do not violate the Constitution.
 General Constitutional Disqualifications
1. Losing candidates cannot be appointed
to any governmental office within one
year after such election. (Art. IX-B Sec.
6)
2. Elective officials during their tenure are
ineligible for appointment or designation
in ANY capacity to ANY public office or
position (Art. IX-B Sec. 7(1))
3. Appointive officials shall not hold any 245
other governmental position.
 Unless otherwise allowed by law or

LAW ON PUBLIC OFFICERS

knowledge of law but involves no attorney-
client relationship, such as teaching law or
writing law books or articles, he cannot be
said to be engaged in the practice of his
profession or a lawyer
 “Residency” defined. In election law,
residence refers to domicile, i.e. the place
where a party actually or constructively has
his permanent home, where he intends to
return. To successfully effect a change of
domicile, the candidate must prove an actual
removal or an actual change of domicile.
[Aquino v. COMELEC (1995)]
his position’s primary functions (Art.
IX-B Sec 7 (2))
 Note: There is no violation when
another office is held by a public
officer in an ex officio capacity (where
one can’t receive compensation or other
honoraria anyway), as provided by law
and as required by the primary functions
of his office. [ National Amnesty
Commission v. COA (2004)]
Specific Constitutional Disqualifications

 Presumption in favor of domicile of origin. Public Officer Disqualifications

Domicile requires the twin elements of The President, Vice shall not hold any other
actual habitual residence and animus President, the Members office or employment
manendi (intent to permanently remain). of the Cabinet and their during their tenure,
deputies or assistants UNLESS otherwise
Domicile of origin is not easily lost; it is provided in the
deemed to continue absent a clear and Constitution, (Art. VII,
positive proof of a successful change of Sec. 13)
domicile. [Marcos v. COMELEC (1995)] Senator or Member of may not hold during his
the House of term any other office or
Representatives employment in the
F. Religious Test or Qualification is not Government, or any
subdivision, agency or
Required instrumentality thereof,
including government -
Philippine Constitution owned or -controlled
Art. III corporations or their
Sec. 5. … No religious test shall be required for the subsidiaries
exercise of civil or political rights.
effect: or else he forfeits
his seat
shall also not be
G. Disqualifications to Hold Public appointed to any office
Office when such was created or
its emoluments were
 IN GENERAL: Individuals who lack ANY of increased during his term.
the qualifications prescribed by the (Art. VI, Sec 13)
Constitution or by law for a public office are
POLITICAL LAW REVIEWER Chapter II. ELIGIBILITY and QUALIFICATIONS

Members of the shall not be designated to iii. Representative = 3 consecutive

Supreme Court and any agency performing terms
other courts established quasi-judicial or iv. Elective local officials = 3
by law administrative functions. consecutive terms (Sec. 8, Art. X,
(Art. VIII, Sec. 12)
Constitution)
Members of the shall not hold any other
Constitutional office or employment  Public officer’s voluntary
Commission [during their tenure]. (Art.
renunciation of office for any length
IX-A, Sec. 2)
Ombudsman and his (Art. XI, Sec. 8) of time ≠ an interruption in the
Deputies continuity of his service for the full
Members of must not have been term for which he was elected.
Constitutional candidates for any
Commissions, the elective position in the 7. Holding more than one office: to prevent
Ombudsman and his elections immediately offices of public trust from accumulating
Deputies preceding their in a single person, and to prevent
appointment (Art IX-B, individuals from deriving, directly or
Sec. 1; Art. IX-C, Sec. 1; indirectly, any pecuniary benefit by
Art. IX-D, Sec. 1; Art XI, virtue of their holding of dual positions.
Sec. 8)
Members of are appointed to 7-year 246
Civil Liberties Union v. Executive
Constitutional term, without Secretary (1991):

LAW ON PUBLIC OFFICERS

Commissions, the reappointment (Sec. 1(2)
Ombudsman and his of Arts. IX-B, C, D; Art.
 Section 7, Article IX-B of the
Deputies XI, Sec. 11) Constitution generally prohibits
The President’s spouse shall not be appointed elective and appointive public
and relatives by during President’s tenure officials from holding multiple offices
consanguinity or affinity as Members of the or employment in the government
within the fourth civil Constitutional unless they are otherwise allowed
degree Commissions, or the by law or by the primary functions of
Office of the Ombudsman, their position.
or as Secretaries,
Undersecretaries, This provision does NOT cover the
chairmen or heads of President, Vice-President and
bureaus or offices, cabinet members – they are
including government-
owned-or -controlled
subject to a stricter prohibition
corporations. (Art. VIII, under Section 13 of Article VII.
Sec. 13)
 To apply the exceptions found in
Section 7, Article IX-B to Section 13,
 Other Disqualifications Article VII would obliterate the
1. Mental or physical incapacity
distinction set by the framers of
2. Misconduct or crime: persons convicted the Constitution as to the high-
of crimes involving moral turpitude are ranking officials of the Executive
USUALLY disqualified from holding branch.
public office.  However, public officials holding
3. Impeachment positions without additional
compensation in ex-officio
4. Removal or suspension from office: not capacities as provided by law and
presumed  non-imposable when such as required by their office’s primary
ineligibility is not constitutional or functions are not covered by the
statutory declared. Section 13, Article VII prohibition.
5. Previous tenure of office: for example, 8. Holding of office in the private sector:
an appointed Ombudsman is absolutely  Section 7 (b)(1)of RA 6713 considers
disqualified for reappointment (Article unlawful for public officials and
XI, Constitution). employees during their incumbency to
own, control, manage, or accept
6. Consecutive terms limit: employment as officer employee,
i. Vice-President = 2 consecutive consultant, counsel, broker, agent,
terms trustee or nominee in any private
ii. Senator = 2 consecutive terms enterprise regulated, supervised or
POLITICAL LAW REVIEWER
licensed by their office unless expressly
allowed by law.
 Section 7 of RA 6713 also generally
provides for the prohibited acts and
transactions of public officials and
employees. Subsection (b)(2) prohibits
them from engaging in the private
practice of their profession during their
incumbency. As an exception, a public
official or employee can engage in the
practice of his or her profession under
the following conditions: first, the private
practice is authorized by the Constitution
or by the law; and second, the practice
will not conflict, or tend to conflict, with
his or her official functions.
9. Relationship with the appointing power
 General Rule on Nepotism: The Civil
Service Decree (PD 807) prohibits
all appointments in the national and
local governments or any branch or
instrumentality thereof made in favor
of the relative of:
i. appointing authority;
ii. recommending authority;
iii. chief of the bureau office; or
iv. person exercising immediate
supervision over the appointee
 Relative: related within the third
degree of either consanguinity or of
affinity.
 Exceptions to rule on nepotism:
 persons employed in a
confidential capacity
 teachers
 physicians
 members of the Armed Forces
of the Philippines
10. Under the Local Government Code (sec.
40)
i. Sentenced by final judgment for an
offense involving moral turpitude or
for an offense punishable by 1 year
or more of imprisonment, within 2
years after serving sentence;
ii. Removed from office as a result of an
administrative case;
iii. Convicted by final judgment for
violating the oath of allegiance to
the Republic;
iv. Dual citizenship;
Mercado v. Manzano (1999):
 Dual citizenship is different from
dual allegiance. The former
arises when, as a result of the
concurrent application of the
Chapter II. ELIGIBILITY and QUALIFICATIONS
different laws of two or more
states, a person is
simultaneously considered a
national by the said states.
 Dual allegiance, on the other
hand, refers to the situation in
which a person simultaneously
owes, by some positive act,
loyalty to two or more
states. While dual citizenship is
involuntary, dual allegiance is
the result of an individual’s
volition.
 [I]n including §5 in Article IV on
citizenship, the concern of the
Constitutional Commission was
not with dual citizens per se but 247
with naturalized citizens who
LAW ON PUBLIC OFFICERS
maintain their allegiance to their
countries of origin even after
their naturalization.
 Hence, the phrase “dual
citizenship” in R.A. No. 7160,
§40(d) and in R.A. No. 7854,
§20 must be understood as
referring to “dual
allegiance.”
v. Fugitive from justice in criminal or
non-political cases here or abroad;
vi. Permanent residents in a foreign
country or those who have acquired
the right to reside abroad and
continue to avail of the same right
after the effectivity of the Local
Government Code;
vii. Insane or feeble-minded.
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

Security of No. Yes.

Chapter III. Formation of Official Relation tenure?
Is prior/1st …a 2nd …a 2nd
A. MODES OFFICIAL office designated appointive
RELATION abandoned position is position is
B. ELECTION when… assumed? assumed?
C. APPOINTMENT NO Usually YES
1. DEFINITION
2. NATURE OF POWER TO APPOINT  Political. Appointment is generally a political
3. CLASSIFICATION OF APPOINTMENTS question so long as the appointee fulfills the
4. STEPS IN APPOINTING PROCESS minimum qualification requirements
5. PRESIDENTIAL APPOINTEES prescribed by law.
D. QUALIFICATION STANDARDS AND
REQUIREMENTS UNDER THE CIVIL  Vacancy for Validity. For the appointment to
SERVICE LAW be valid, the position must be vacant
1. QUALIFICATION STANDARDS [Castin v. Quimbo (1983)]
2. POLITICAL QUALIFICATIONS FOR AN
OFFICE (I.E. MEMBERSHIP IN A
POLITICAL PARTY) 2. Nature of Power to Appoint
3. NO PROPERTY QUALIFICATIONS
4. CITIZENSHIP  The power to appoint is intrinsically an 248
5. EFFECT OF REMOVAL OF executive act involving the exercise of

LAW ON PUBLIC OFFICERS

QUALIFICATIONS DURING THE TERM discretion. [Concepcion v. Paredes
6. EFFECT OF PARDON UPON THE (1921)]
DISQUALIFICATION TO HOLD PUBLIC
OFFICE  Must be unhindered and unlimited by
DISCRETION OF APPOINTING OFFICIAL Congress. Congress cannot either appoint a
EFFECTIVITY OF APPOINTMENT public officer or impose upon the President
EFFECTS OF A COMPLETE, FINAL AND the duty to appoint any particular person to
IRREVOCABLE APPOINTMENT
an office. The appointing power is the
CIVIL SERVICE COMMISSION’S (CSC’S)
JURISDICTION
exclusive prerogative of the President,
APPOINTMENTS TO THE CIVIL SERVICE upon which no limitations may be
imposed by Congress, EXCEPT those:
 requiring the concurrence of the
A. Modes of Commencing Official
Commission on Appointments; and
Relation  resulting from the exercise of the limited
1. Election legislative power to prescribe the
2. Appointment qualifications to a given appointive
3. Others: office. [Manalang v. Quitoriano (1954)]
i. Succession by operation of law;
ii. Direct provision of law, e.g. ex-officio  The President’s power to appoint under the
officers Constitution should necessarily have a
reasonable measure of freedom, latitude, or
discretion in choosing appointees.
B. Election [Cuyegkeng v. Cruz (1960)]
 Selection or designation by popular vote  Where only one can qualify for the posts in
question, the President is precluded from
exercising his discretion to choose whom to
C. Appointment appoint. Such supposed power of
appointment, sans the essential element of
1. Definition choice, is no power at all and goes against
Designation Appointment the very nature of appointment itself. [Flores
Definition Imposition of Appointing v. Drilon (1993)]
additional authority
duties upon selects an
existing office individual who
3. Classification of Appointments
will occupy a  Permanent:
certain public  the permanent appointee:
office
Extent of
 must be qualified
Limited Comprehensive
Powers  must be eligible
POLITICAL LAW REVIEWER
 is constitutionally guaranteed
security of tenure
 (Duration) until lawful termination.
 Note: Conditional appointments are not
permanent.
 Temporary:
 an acting appointment;
 the temporary appointee NEED NOT be
qualified or eligible;
 (No Security of Tenure) revocable at
will: just cause or valid investigation
UNNECESSARY;
 an “acting” appointment is a
temporary appointment and
revocable in character.
[Marohombsar v. Alonto (1991)]
 A temporary appointee is like a
designated officer – they:
o occupy a position in an acting
capacity and
o do not enjoy security of tenure.
[Sevilla v. CA (1992)]
 Even a Career Service Officer
unqualified for the position is
deemed temporarily-appointed.
Thus he does not enjoy security of
tenure – he is terminable at will.
 A public officer who later accepts a
temporary appointment terminates
his relationship with his former
office. [Romualdez III v. CSC
(1991)]
 EXCEPT Fixed-Period Temporary
Appointments: may be revoked
ONLY at the period’s expiration.
Revocation before expiration must
be for a valid cause.
 (Duration) until a permanent
appointment is issued.
4. Steps in Appointing Process
 For Appointments requiring confirmation:
 Regular Appointments (NCIA)
1. President nominates.
2. Commission on Appointments
confirms.
3. Commission issues appointment.
4. Appointee accepts.
 Ad-Interim Appointments (NIAC)
1. President nominates.
2. Commission issues appointment.
3. Appointee accepts.
4. Commission on Appointments
confirms.
Chapter III. FORMATION of OFFICIAL RELATION
 For Appointments Not Requiring
Confirmation (AIA)
1. Appointing authority appoints.
2. Commission issues appointment.
3. Appointee accepts.
 Note: If a person is appointed to the career
service of the Civil Service, the Civil Service
Commission must bestow attestation.
5. Presidential Appointees
 Who can be nominated and appointed only
WITH the Commission on Appointments’
consent? (Art. VII, Sec. 16, 1987 Const.)
 Heads of the executive departments;
 Ambassadors;
 Other public ministers and consuls;
 Officers of the armed forces from the 249
rank of colonel or naval captain;
LAW ON PUBLIC OFFICERS
 Other officers whose appointments are
vested in him by the Constitution,
including Constitutional Commissioners
(Art. IX-B, Sec. 1 (2) for CSC; Art. IX-
C, Sec. 1 (2) for COMELEC; Art. IX-D,
Sec. 1 (2) for COA).
 Who can the President appoint WITHOUT
CA’s approval?
 All other officers of the government
whose appointments are not otherwise
provided for by law;
 Those whom he may be authorized by
law to appoint;
 Members of the Supreme Court;
 Judges of lower courts;
 Ombudsman and his deputies
 Kinds of Presidential Appointments
 Regular: made by the President while
Congress is in session after the
nomination is confirmed by the
Commission of Appointments, and
continues until the end of the term.
 Ad interim: made while Congress is not
in session, before confirmation by the
Commission on Appointments;
immediately effective and ceases to be
valid if disapproved or bypassed by the
Commission on Appointments. This is a
permanent appointment and it being
subject to confirmation does not alter its
permanent character.
 Efficient. Recess appointment
power keeps in continuous
operation the business of
government when Congress is not
in session. The individual chosen
POLITICAL LAW REVIEWER
may thus qualify and perform his
function without loss of time.
 Duration. The appointment shall
cease to be effective upon rejection
by the Commission on
Appointments, or if not acted upon,
at the adjournment of the next
session, regular or special, of
Congress.
 Permanent. It takes effect
immediately and can no longer be
withdrawn by the President once the
appointee has qualified into office.
The fact that it is subject to
confirmation by the Commission on
Appointments does not alter its
permanent character.
The Constitution itself makes an
ad interim appointment permanent
in character by making it effective
until disapproved by the
Commission on Appointments or
until the next adjournment of
Congress. [Matibay v. Benipayo
(2002)]
 Not Acting. An ad interim
appointment is distinguishable from
an “acting” appointment which is
merely temporary, good until
another permanent appointment is
issued.
 Applicable to COMELEC
Commissionsers, being permanent
appointments, do not violate the
Constitutional prohibition on
temporary or acting appointments of
COMELEC Commissioners.
 By-passed Appointee may be
Reappointed. Commission on
Appointments’ failure to confirm an
ad interim appointment is NOT
disapproval. An ad interim
appointee disapproved by the COA
cannot be reappointed. But a by-
passed appointee, or one whose
appointment was not acted upon the
merits by the COA, may be
appointed again by the President.
Chapter III. FORMATION of OFFICIAL RELATION
D. Qualification Standards and
Requirements under the Civil Service
Law
1. Qualification Standards
 It enumerates the minimum requirements for
a class of positions in terms of education,
training and experience, civil service
eligibility, physical fitness, and other
qualities required for successful
performance. (Sec. 22, Book V,
Administrative Code)
 The Departments and Agencies are
responsible for continuously establishing,
administering and maintaining the
qualification standards as an incentive to
career advancement. (Sec. 7, Rule IV,
Omnibus Rules) 250
 Such establishment, administration, and
LAW ON PUBLIC OFFICERS
maintenance shall be assisted and approved
by the CSC and shall be in consultation with
the Wage and Position Classification Office
(ibid)
 It shall be established for all positions in the
1st and 2nd levels (Sec. 1, Rule IV,
Omnibus Rules)
2. Political Qualifications for an Office
(i.e. membership in a political party)
 GENERAL RULE: Political qualifications are
NOT Required for public office.
 EXCEPTIONS:
 Membership in the electoral tribunals of
either the House of Representatives or
Senate (Art. VI, Sec. 17, 1987 Const.);
 Party-list representation;
 Commission on Appointments;
 Vacancies in the Sanggunian (Sec. 45,
Local Government Code)
3. No Property Qualifications
 Since sovereignty resides in the people, it is
necessarily implied that the right to vote and
to be voted should not be dependent upon a
candidate’s wealth. Poor people should also
be allowed to be elected to public office
because social justice presupposes equal
opportunity for both rich and poor. [Maguera
v. Borra and Aurea v. COMELEC (1965)]
4. Citizenship
 Aliens not eligible for public office.
 The purpose of the citizenship requirement
is to ensure that no alien, i.e., no person
POLITICAL LAW REVIEWER
owing allegiance to another nation, shall
govern our people and country or a unit of
territory thereof. [Frivaldo v. COMELEC
(1996)]
5. Effect of Removal of Qualifications
During the Term
 Termination from office.
6. Effect of Pardon upon the
Disqualification to Hold Public Office
(Asked in 1999)
 GENERAL RULE: Pardon will not restore
the right to hold public office. (Art. 36,
Revised Penal Code)
 EXCEPTIONS:
 When the pardon’s terms expressly
restores such (Art. 36, RPC);
 When the reason for granting pardon is
non-commission of the imputed crime.
[Garcia v. Chairman, COA (1993)]
E. Discretion of Appointing Official
 Presumed.
Administrators of public officers, primarily
the department heads should be entrusted
with plenary, or at least sufficient, discretion.
Their position most favorably determines
who can best fulfill the functions of a
vacated office. There should always be full
recognition of the wide scope of a
discretionary authority, UNLESS the law
speaks in the most mandatory and
peremptory tone, considering all the
circumstances. [Reyes v. Abeleda (1968)]
 Discretionary Act.
Appointment is an essentially discretionary
power. It must be performed by the officer in
whom it is vested, the only condition being
that the appointee should possess the
qualifications required by law. [Lapinid v.
CSC (1991)]
 Scope. The discretion of the appointing
authority is not only in the choice of the
person who is to be appointed but also in
the nature and character of the appointment
intended (i.e., whether the appointment is
permanent or temporary).
 Inclusive Power. The appointing authority
holds the power and prerogative to fulfill a
vacant position in the civil service.
Chapter III. FORMATION of OFFICIAL RELATION
 The exercise of the power to transfer,
reinstate, reemploy or certify is widely used
(need not state reason)
To hold that the Civil Service Law requires
filling up any vacancy by promotion, transfer,
reinstatement, reemployment, or certification
IN THAT ORDER would be tantamount to
legislative appointment which is repugnant
to the Constitution. What it does purport to
say is that as far as practicable the
person next in rank should be promoted,
otherwise the vacancy may be filled by
transfer, reinstatement, reemployment or
certification, as the appointing power sees
fit, provided the appointee is certified to be
qualified and eligible. [Pineda v. Claudio
(1969)]
251
 Promotion of “next-in-rank” career officer is
not Mandatory. The appointing authority
LAW ON PUBLIC OFFICERS
should be allowed the choice of men of his
confidence, provided they are qualified and
eligible.
 When Abused, use Mandamus.
Where the palpable excess of authority or
abuse of discretion in refusing to issue
promotional appointment would lead to
manifest injustice, mandamus will lie to
compel the appointing authority to issue said
appointments. [Gesolgon v. Lacson
(1961)]
 “Upon recommendation” is not Merely
Advisory.
Sec. 9. Provincial/City Prosecution Offices. [par.
3] All provincial and city prosecutors and their
assistants shall be appointed by the President
upon the recommendation of the Secretary.
 The phrase “upon recommendation of
the Sec. of Justice” should be
interpreted to be a mere advice. It is
persuasive in character, BUT is not
binding or obligatory upon the person to
whom it is made.
F. Effectivity of Appointment
 Immediately upon appointing authority’s
issuance. (Rule V, Sec. 10, Omnibus
Rules).
POLITICAL LAW REVIEWER
G. Effects of a Complete, Final and
Irrevocable Appointment
 GENERAL RULE:
An appointment, once made, is irrevocable
and not subject to reconsideration.
 It vests a legal right. It cannot be taken
away EXCEPT for cause, and with
previous notice and hearing (due
process).
 It may be issued and deemed complete
before acquiring the needed assent,
confirmation, or approval of some other
officer or body.
 EXCEPTIONS:
 Appointment is an absolute nullity
[Mitra v. Subido (1967)];
 Appointee commits fraud [Mitra v.
Subido, supra];
 Midnight appointments
 General Rule: A President or Acting
President shall not appoint 2 months
immediately before the next
presidential elections until his term
ends. (Art. VII, Sec. 15, 1987
Const.)
 Exception: Temporary appointments
to executive positions when
continued vacancies will prejudice
public service or will endanger
public safety.
H. Civil Service Commission’s (CSC’s)
Jurisdiction
 Exclusive Jurisdiction
 Disciplinary cases
 Cases involving “personnel action”
affecting the Civil Service employees
 Appointment through certification
 Promotion
 Transfer
 Reinstatement
 Reemployment
 Detail, reassignment
 Demotion
 Separation
 Employment status
 Qualification standards
 Recall of appointment. Includes the authority
to recall an appointment which has been
initially approved when it is shown that the
same was issued in disregard of pertinent
CSC laws, rules and regulations.
 as opposed to Recall under Sec 69-75 of the
Local Government Code:
Chapter III. FORMATION of OFFICIAL RELATION
- Recall is a mode of removal of a public
official by the people before the end of his
term of office. [Garcia v. COMELEC, (1993)]
 Review Appointee’s Qualifications.
The only function of the CSC is to review the
appointment in the light of the requirements
of the Civil Service Law, and when it finds
the appointee to be qualified and all other
legal requirements have been otherwise
satisfied, it has no choice but to attest to the
appointment. [Lapinid v. CSC (1991)]
 What it cannot do.
 It cannot order the replacement of the
appointee simply because it considers
another employee to be better qualified.
[Lapinid v. CSC (1991)]
252
 The CSC cannot co-manage or be a
surrogate administrator of government
LAW ON PUBLIC OFFICERS
offices and agencies.
 It cannot change the nature of the
appointment extended by the appointing
officer. [ Luego v. CSC (1986)]
I. Appointments to the Civil Service
 SCOPE: Embraces all branches,
subdivisions, instrumentalities and agencies
of the Government, including GOCCs with
original charters (Art. IX-B Sec. 2(1),
Constitution)
 Classes of Service
1. Career Service – Entrance based on
merit and fitness determined by
competitive examinations, or based on
highly technical qualifications,
opportunity for advancement to higher
career positions and security of tenure.
2. Non-career Service – Entrance on
bases other than those of the usual
tests. Tenure limited to a period
specified by law or which is
coterminous with the appointing
authority or the duration of a particular
project. (i.e. elective officials,
Department Heads and Members of
Cabinet)
 Requisites:
 Appoint only according to merit and
fitness, to be determined as far as
practicable.
 Require a competitive examination.
 Exceptions: (Positions where
Appointees are exempt from
POLITICAL LAW REVIEWER
Competitive Examination
Requirements)
o Policy determining - in which
the officer lays down principal or
fundamental guidelines or rules;
or formulates a method of action
for government or any of its
subsidiaries
o Primarily Confidential – denoting
not only confidence in the
aptitude of the appointee for the
duties of the office but primarily
close intimacy which ensures
freedom of intercourse without
embarrassment or freedom from
misgivings or betrayals on
confidential matters of the state
(“Proximity Rule” as enunciated
in De los Santos v Mallare
[1950])
o Highly Technical – requires
possession of technical skill or
training in a superior degree.
(i.e. City Legal Officer)
o NOTE: It is the nature of the
position which determines
whether a position is policy
determining, primarily
confidential or highly technical
 Other Personnel Actions
 Promotion is a movement from one
position to another with increase in
duties and responsibilities as authorized
by law and is usually accompanied by
an increase in pay.
 Next-in-rank Rule.
o The person next in rank shall be
given PREFERENCE in
promotion when the position
immediately above his is
vacated.
o BUT the appointing authority still
exercises discretion and is not
bound by this rule, although he
is required to specify the
“special reason or reasons” for
not appointing the officer next-
in-rank.
 Automatic Reversion Rule.
o All appointments involved in a
chain of promotions must be
submitted simultaneously for
approval by the Commission.
o The disapproval of the
appointment of a person
proposed to a higher position
Chapter III. FORMATION of OFFICIAL RELATION
invalidates the promotion of
those in the lower positions and
automatically restores them to
their former positions.
o However, the affected persons
are entitled to payment of
salaries for services actually
rendered at a rate fixed in their
promotional appointments.
(Sec. 13 of the Omnibus Rules
Implementing Administrative
Code)
o Requisites:
1. series of promotions
2. all promotional
appointments are
simultaneously submitted to
the Commission for
approval 253
3. the Commission
LAW ON PUBLIC OFFICERS
disapproves the
appointment of a person to
a higher position.
 Appointment through Certification is
issued to a person who is:
 selected from a list of qualified
persons certified by the Civil Service
Commission from an appropriate
register of eligibles
 qualified
 Transfer is a movement from one
position to another which is of
equivalent rank, level or salary without
break in service.
 This may be imposed as an
administrative remedy.
 If UNconsented = violates security
of tenure.
 EXCEPTIONS:
o Temporary Appointee
o Career Executive Service
Personnel whose status and
salaries are based on ranks (≠
positions)
 Reinstatement. It is technically the
issuance of a new appointment and is
discretionary on the part of the
appointing power.
 It cannot be the subject of an
application for a writ of mandamus.
 Who may be reinstated to a position
in the same level for which he is
qualified:
o Any permanent appointee of a
career service position
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

o No commission of delinquency
or misconduct, and is not
separated.
 Same effect as Executive
Clemency, which completely
obliterates the adverse effects of the
administrative decision which found
him guilty of dishonesty. He is
restored ipso facto upon grant of
such. Application for reinstatement
= unnecessary.

 Detail is the movement of an employee

from one agency to another without the
issuance of an appointment.
 Only for a limited period.
 Only for employees occupying
professional, technical and scientific
positions. 254
 Temporary in nature.

LAW ON PUBLIC OFFICERS

 Reassignment. An employee may be
reassigned from one organizational unit
to another in the SAME agency.
 It is a management prerogative of
the CSC and any dept or agency
embraced in the Civil Service.
 It does not constitute removal
without cause.
 Requirements:
o NO reduction in rank, status or
salary.
o Should have a definite date or
duration (c.f. Detail). Otherwise,
a floating assignment = a
diminution in status or rank.
 Reemployment. Names of persons who
have been appointed permanently to
positions in the career service and who
have been separated as a result of
reduction in force and/or reorganization,
shall be entered in a list from which
selection for reemployment shall be
made.

- end of Law on Public Officers -