Professional Documents
Culture Documents
A. Meaning of office
1. “Office” may be defined as a position or function by virtue of which a person is
employed in another’s affairs, either by being appointed, elected, or appointed during
the pleasure of the appointing power or for a fixed term (63A Am. Jur. 2d 667).
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
a. An office may be considered property within the protection of due process in
controversies relating to the question as to which of two persons is entitled thereto,
as well as concerns about one’s constitutional right to security of tenure.
S, a justice of the peace, was ordered by the Secretary of Justice to vacate the post when he
became 65 years old as per Act No. 3107. The said law amended Section 203 of the Administrative
Code by stating that “justices of the peace…are to serve until they reach the age of 65”. N, the
auxiliary justice, acted as justice of the peace. S filed for quo warranto.
S should not step down as per Act No. 3107. The Act did not amend the Administrative Code which
provides that “a justice of the peace having the requisite legal qualifications shall hold office during
good behavior unless his office be lawfully abolished or merged into the jurisdiction of some other
justices”. A statute operates only prospectively unless otherwise provided by the express terms of
the statute or by necessary implication.
The right to an office is not vested but such right shall be taken away only when the terms of the law
is clear in which the purpose is stated.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
As to Public Office Public Employment
Key Considerations There is a delegation of some No such delegation of sovereign
of the sovereign functions of functions to public employment.
government to a public office.
b. It must be invested with an authority to exercise some portion of the sovereign power of
the State to be exercised for public interest;
c. Its powers and functions are defined by the Constitution, or by law, or through legislative
authority;
d. The duties pertaining to a public office are performed independently, without control of a
superior power other than law, unless they are those of an inferior or subordinate officer,
created or authorized by the legislature and placed by it under the general control of a
superior officer or body; and
b. By the exercise of Congress of its legislative function. Except for such offices created by
the Constitution, the legislative department has the primary discretion to determine
whether additional public offices shall be created, or whether these duties shall be
attached to and become ex officio duties of existing offices.
1. The power to create an office generally includes the power to modify or abolish it; as
well as the power to fix the number of positions and the salaries and emoluments of the
holders thereof and provide funds for the offices created.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
2. Office created by Congress
a. Unless prohibited by the Constitution, Congress may control, modify, consolidate,
or abolish public offices created by it whenever such course may seem necessary,
expedient, or conducive to the public good.
The most important characteristic in determining whether a position is a public office or not, is the
delegation to an individual of some of the sovereign functions of the government, i.e. executive,
legislative or judicial functions to be exercised for the benefit of the public.
Petitioner, Laurel, was appointed as the Chairperson of the National Centennial Commission (NCC)
created under Executive Order No. 128. The NCC is tasked to undertake the preparations for the
celebration of the Philippine Independence. Such occasion is said to be a vehicle in showcasing
Filipino heritage and identity, which is mandated under Article XIV of the 1987 Constitution. The
NCC, therefore, performs an executive function in implementing the supreme law of the land. The
inescapable conclusion is that "NCC is a public office and petitioner, as its Chair, is a public officer."
That the petitioner did not receive a salary is of no moment because compensation is a mere
incident of public office. As NCC chair, petitioner is occupying an honorary office as distinguished
from a lucrative office albeit it is still a public office. "Neither is the fact that the NCC was
characterized by E.O. No. 128 as an "ad-hoc body" makes said commission less of a public office."
Serana vs. Sandiganbayan, et. al. (G.R. No. 162059, January 22, 2008)
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
"As an investment in an individual of some portion of the sovereign functions of the government to
be exercised by him for the benefit of the public makes one a public officer." Petitioner Serana, as
the student regent of the University of the Philippines-Diliman is deemed a public officer because a
perusal of the existing charter of UP would show that the Board of Regents, where petitioner is a
member, exclusively exercises the powers of administration of the University.
The fact that Serana does not receive any salary as a student regent is of no moment because
compensation is not a essential element of public office.
The fact that petitioner, Go, is not a public officer would not automatically exclude him from the
application of Section 3(g) of RA 3019 or The Anti Graft Law. Section 3(g) penalizes public officers
who enter into a transaction in behalf of the government, which is manifestly and grossly
disadvantageous to the latter, regardless of whether such public officers profited or will profit
thereby. To say otherwise could do violence with the avowed policy of the said law to "repress
certain acts of public officers and private persons."
"Private persons, when acting in conspiracy with public officers, may be indicted and if found guilty
be held liable for the pertinent offenses under Section 3 of RA 3019."
Petitioner was invested by law with some portion of the sovereign functions of the government and
is therefore a public officer. She is the representative of the private sector in the National Book
Development Board (NBDB), which is a statutory agency created by RA 8047. The primary purpose
of the said law is to ensure the development of the book publishing industry and the NBDB is tasked
to supervise the implementation of the same.
Further, pursuant to the Anti-Graft Law, petitioner is a public officer since she was appointed by the
President to the Governing Board of the NBDB. The fact that she was not receiving a salary is
inconsequential because under the Anti-Graft Law, "the nature of one's appointment, and whether
the compensation one receives from the government is only nominal, is immaterial because the
person so elected or appointed is still considered a public officer."
Also, petitioner is a public officer under the Revised Penal Code considering that she takes part in
the performance of public functions in the government. During her tenure, she took pat in the
formulation of the implementing rules and regulations of RA 8047.
1. “Officer” is one who holds a public office. Under the Administrative Code of 1987, it
refers to a person whose duties involve the exercise of discretion in the performance of
the functions of the government.
3. “Employee” includes any person in the service of the government or any of its agencies,
divisions, subdivisions, or instrumentalities.
By signing the receipt for the truck constructively distraint by the Bureau of Internal Revenue,
petitioner, Azarcon, became the custodian of such properties with an obligation to preserve the
same and not allow any person to remove it without the authority of the BIR. This designation,
however, did not make him a "public officer" within the purview of the Revised Penal Code.
Petitioner's appointment is neither by popular election nor by direct provision of law nor by
competent authority. There is no provision in the National Internal Revenue Code that constitutes
the private individual appointed by the BIR as depositary, a public officer. Further, nowhere is
it provided in Article 222 of the RPC that a private individual falling therein as administrator or
depositary of funds or property attached or seized by public authority, is to be deemed a public
officer.
Since petitioner is not a public officer but a private individual, the Sandiganbayan has no jurisdiction
over him. Azarcon cannot be charged of malversation of public funds, absent an allegation that he
is a co-pricipal, accomplice or accessory acting in conspiracy with a public officer.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
P. Meaning of public official
1. “Public Official” is defined as an officer of the Government itself, as distinguished from
the officers and employees of instrumentalities of the government. However, the term
public official is ordinarily synonymously used with public officer.
1. As to nature of functions
a. Civil Office(r) - covers any kind of public office, whether executive, legislative, or
judicial, but excluding military offices.
b. Military office(r) - includes all offices in the armed forces which solely involve military
functions.
2. As to creation
a. Constitutional office(r) – one created by the Constitution
b. Statutory office(r) – one created by statute and over which Congress has full control.
6. As to compensation
a. Lucrative office(r) – any office to which salary, compensation or fees are attached.
b. Honorary office(r) – no compensation is attached.
A. In General
1. Meaning of eligibility/eligible/ineligibility/ineligible
a. “Eligibility” – state or quality of being legally fitted or qualified to be chosen.
Eligibility to a public office is of a continuing nature and must exist both at the
commencement and during the occupancy of an office (Aguila v. Genato, 103 SCRA
(1981)).
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
b. “Eligible” – means being legally fitted or qualified to hold an office. Under the
Administrative Code of 1987, it refers to one who obtains a passing grade in a civil
service exam (Executive Order No. 292, Book V, Title I, Subtitle A, Chapter 1,
Section 5(8)).
c. “Ineligibility” – refers to lack of qualifications required by law for holding public
office.
d. “Ineligible” – may mean legally or otherwise disqualified to hold an office;
disqualified to be elected to an office; disqualified to hold an office if elected or
appointed to it.
2. Meaning of Qualification
a. It may refer to the endowment or accomplishment that fits one for office; or
b. It may refer to the act which a person is legally required to do before entering upon
the performance of his duties.
Banate was designated as member of the Sangguniang Panglungsod to replace Ignacio who claims
that Banate is not qualified because the latter is not an officer, much less, a member of the
Katipunang Panglunsod as required under the Local Government Code.
The appointment is not valid. Banata did not meet the qualifications required by law. An unqualified
person cannot be appointed to position, even in an acting capacity.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
5. Power of Congress to prescribe disqualifications
a. In the absence of constitutional inhibition, Congress may prescribe disqualifications.
In addition, Congress cannot remove a disqualification that the Constitution has
attached to the position.
Vargas questions the People Court’s Act which (1) disqualified justices who held office under the
Philippine Executive Commission during the Japanese regime from adjudicating in cases where the
“accused held offices under the two”; and (2) provided that the President may designate judges to
temporarily serve in the Supreme Court when the number of justices who left does not constitute a
quorum.
The Act is repugnant to the Constitution. It added grounds for disqualification of a Supreme Court
justice. It disqualified a majority of the members of the Supreme Court. In addition, the temporary
composition of the Supreme Court is not allowed as the Supreme Court is a permanent institution as
provided in the Constitution.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
2. The qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot
cure the vice of ineligiibilty especially if they mistakenly believed that the
candidate was qualified. (Frivaldo v. Commission on Elections, 174 SCRA 245
(1989))
3. It has been held, however, that Section 39 of the Local Government Code on
“Qualifications ot Elective Officials” does not specifiy any particular date or time
when the candidate must possess citizenship, unlike that for residence (which
must consist of at least 1 year’s residence immediately preceding the day of
election) and age (at least 23 years of age on election day).
Elected Mayor Yap claimed that Castañeda was estopped from questioning his eligibility (Mayor Yao
did not meet the minimum age requirement when he was proclaimed) because Castañeda failed to
do it before or during the election.
Castañeda is not estopped. A candidate’s eligibility is always subject to question. Under the
applicable law at the time of the case was decided, the right of an elective municipal office can be
contested only after proclamation. Good faith does not cure a candidate’s ineligibility, although it
might be a good defense in a criminal prosecution.
b. Age
1. The age limit for certain offices may, by constitutional or statutory provision, be
placed beyond the age of majority.
c. Right of Suffrage
1. Only electors or voters are eligible for public office.
d. Residence
1. Statute may require that a candidate for election or appointment to an office of a
political subdivision or unit be a resident or inhabitant thereof.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
e. Education
1. Some statutes prescribe educational qualifications for certain offices requiring
persons possessing professional attainments.
g. Political affiliation
1. The Constitution and existing laws sometimes require membership in a political
party or group as a condition for eligibility to certain offices (Constitution, Article
VI, Section 17, 18; Local Government Code, Section 45(b)).
b. No religious test shall be required for the exercise of civil or political rights
(Constitution, Article III, Section 5).
“No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately preceding such election.” (Constitution,
Article VII, Section 2)
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
b. Senators
“No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day
of the election, is at least thirty-five years of age, able to read and write, a registered voter, and
resident of the Philippines for not less than two years immediately preceding the day of the
election.” (Constitution, Article VI, Section 3)
“No person shall be a Member of the House of Representatives unless he is a natural-born citizen of
the Philippines, and, on the day of the election, is at least twenty-five years of age, able to read and
write, and, except the party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year immediately preceding the day
of the election.” (Constitution, Article VI, Section 6)
“No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he
is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty
years of age, and must have been for fifteen years or more a judge of a lower court or engaged in
the practice of law in the Philippines.” (Constitution, Article VIII, Section 7(1)).
“The civil service shall be administered by the Civil Service Commission composed of a Chairman
and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, with proven capacity for public administration, and
must not have been candidates for any elective position in the elections immediately preceding their
appointment.” (Constitution, Article IX-B, Section 1(1)).
“There shall be a Commission on Elections composed of a Chairman and six Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-
five years of age, holders of a college degree, and must not have been candidates for any elective
position in the immediately preceding elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for
at least ten years.” (Constitution, Article IX-C, Section 1(1)).
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
g. Chairman and Commissioners of the Commission on Audit
“There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall
be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five
years of age, certified public accountants with not less than ten years of auditing experience, or
members of the Philippine Bar who have been engaged in the practice of law for at least ten years,
and must not have been candidates for any elective positions in the elections immediately preceding
their appointment. At no time shall all Members of the Commission belong to the same profession.”
(Constitution, Article IX-D, Section 1(1)).
“The Commission shall be composed of a Chairman and four Members who must be natural-born
citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office
and other qualifications and disabilities of the Members of the Commission shall be provided by
law.” (Constitution, Article XIII, Section 17(2)).
“The Ombudsman and his deputies shall be natural-born citizens of the Philippines, and at the time
of their appointment, at least forty years old, of recognized probity and independence, and members
of the Philippine Bar, and must not have been candidates for any elective office in the immediately
preceding elections. The Ombudsman must have for ten years or more been a judge or engaged in
the practice of law in the Philippines.” (Constitution, Article XI, Section 8).
a. Secretaries of Departments
“The Secretaries shall be citizens of the Philippines and not less than twenty-five years of age.”
(Administrative Code of 1987, Book IV, Chapter 10, Section 45).
“The Presiding Justice and Associate Justices shall have the same qualifications as those provided
in the Constitution for Justices of the Supreme Court.” (Batas Pambansa Blg. 129, Section 7).
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
c. Judges of the Regional Trial Courts
“No persons shall be appointed Regional Trial Court judge unless he is a natural-born citizen of the
Philippines, at least thirty-five years of age, and, for at least ten years, has been engaged in the
practice of law in the Philippines requiring admission to the practice of law as an indispensable
requisite.” (Batas Pambansa Blg. 129, Section 15).
d. Judges of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts
“No person shall be appointed judge of a Metropolitan Trial Court, Municipal Trial Court, or
Municipal Circuit Trial Court unless he is a natural-born citizen of the Philippines, at least 30 years of
age, and, for at least five years, has been engaged in the practice of law in the Philippines, or has
held a public office in the Philippines requiring admission to the practice of law as an indispensable
requisite.” (Batas Pambansa Blg. 129, Section 26).
6. Candidates for the sangguniang kabataan must be at least fifteen (15) years of
age, but not more than twenty-one (21) years of age on election day.” (Local
Government Code (R.A. No. 7160), Section 39.)
“No person shall be appointed Chairman, member, or substitute member of the Board of Election
Inspectors unless he is of good moral character and irreproachable reputation, a registered voter of
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
the city or municipality, has never been convicted of any election offense or of any other crime
punishable by more than six months of imprisonment, or if there is a pending information against
him for any election offense. He must be able to speak and write English or the local dialect.”
(Omnibus Election Code, Section 166)
SUMMARY OF QUALIFICATIONS
CSC Chair and COMELEC Chair COA Chair and CHR Chair and Ombudsman and
Commissioners and Commissioners Commissioners his Deputies
Commissioners
Composition Chairman + 2 Chairman + 6 Chairman + 2 Chairman + 4
Com Com Com Com
Citizenship Natural-born Natural-born Natural-born Natural-born Natural-born
Age 35 years 35 years 35 years 40 years
-
Educational or Proven capacity College degree CPA not less than Majority must be Lawyers in practice
professional for public holder 10 years of lawyers for at least 10 years
background administration BUT majority, auditing Recognized probity
including the experience or and independence
Chair, lawyers in lawyers in
practice of law for practice of law for
at least 10 years 10 years
No time all the
same profession
Disqualification Candidates for any elective position in Term of office and other
election immediately preceding their qualify to be provided by law
appointment
Gov & VGov, Mayor & VMayor Member of Punong Barangay Member of
Member of of Independent Sangguniang or Member of Sangguniang
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
Sangguniang Component Panglungsod or Sangguniang Kabataan
Panlalawigan,Ma Cities, Sangguniang Barangay
yor, VMayor, Component Bayan
Member of Cities,
Sangguniang Municipalities
Panglungsod of
Highly Urbanized
Cities
Citizenship Citizen of the Citizen of the Citizen of the Citizen of the Citizen of the
Philippines Philippines Philippines Philippines Philippines
Right of Suffrage Registered Voter Registered Voter Registered Voter Registered Voter Registered Voter
Age 23 years 21 years 18 years 18 years At least 15 but
not more than 21
Educational or Read and write Read and write Read and write Read and write Read and write
Professional Filipino or any Filipino or any Filipino or any Filipino or any Filipino or any
background local language or local language or local language or local language or local language or
dialect dialect dialect dialect dialect
2. Misconduct or crime
a. Persons convicted of crimes involving moral turpitude are usually
disqualified from holding public office.
3. Impeachment
a. Persons subject to impeachment:
1. President
2. Vice-President
3. Members of the Supreme Court
4. Members of Constitutional Commission
5. Ombudsman
b. Judgment in impeachment cases is limited to removal from office and
disqualification to hold any office under the Republic of the Philippines but
the convicted person shall still be subject to prosecution, trial and
punishment according to law. (Constitution, Article XI, Section 3(7).
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
Section 3(7), Article XI of the 1987 Constitution does not require that petitioner should first be
convicted in the impeachment proceedings before he can face prosecution for the criminal offenses
filed before the Office of the Ombudsman. Instead, the said constitutional provision provides for two
things: first, judgment in impeachment is limited only to removal from office and disqualification from
holding any other office in the government; and second, the party convicted may still be held liable
under prosecution and punishment according to law.
Further, the impeachment proceedings have become moot and academic due to petitioner's
resignation. The impeachment court is now functus officio. It is unreasonable to demand that
petitioner should first be impeached before criminal cases may be filed against him because the
same would result to a perpetual bar from prosecution.
6. Consecutive terms
a. Vice-President – shall not serve for more than 2 successive terms.
Voluntary renunciation of the office shall not be considered an interruption of
the service for the full term for which he was elected. (Constitution, Article
VII, Section 4)
b. Senator – shall not serve for more than 3 consecutive terms (Constitution,
Article VI, Section4)
c. Members of the House of Representatives – shall not serve for more than 3
consecutive terms. (Constitution, Article VI, Section 7)
d. Elective officials (except barangay officials) – shall not serve for more than 3
consecutive terms (Constitution, Article X, Section 8)
“The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President
shall not, during his tenure, be appointed as members of the Constitutional Commissions, or the
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus of
offices, including government-owned or controlled corporations and their subsidiaries.”
(Constitution, Article VII, Section 13)
Senators and members of the House of Representatives are prohibited from being appointed to any
office which may have been created or the emoluments thereof increased during the term for which
they were elected. (Constitution, Article VI, Section 13)
a. “Emolument” does not refer to the fixed salary alone but includes such fees
and compensations which the incumbent is entitled to receive by law.
“No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.” (Constitution, Article IX-B, Section 7)
b. The disqualification exists only during the tenure in office (versus term of
office) of the elective official.
“No candidate who has lost in any election, shall within one year after such election, be appointed to
any office in the Government or any government-owned or controlled corporations or in any of its
subsidiaries.” (Constitution, Article IX-B, Section 6)
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
Members of the Civil Service Commission, Commission on Elections, and Commission on Audit are
also prohibited by the Constitution to become candidates for any elective position in the elections
immediately preceding their appointment. (Constitution, Article IX-B, Section 1(1); Article IX-C,
Section 1(1), Article IX-D, Section 1(1))
b. With respect to the appointment of elective and appointive local officials and
candidates who lost in an election, the Code provides that they cannot,
within 1 year after such election, be appointed to any office in the
government or government-owned or controlled corporations or in any of its
subsidiaries (except losing candidates in barangay elections).
“(a) No elective or appointive local official shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive
local official shall hold any other office or employment in the government or any subdivision, agency
or instrumentality thereof, including government-owned or -controlled corporations or their
subsidiaries.
(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall,
within one (1) year after such election, be appointed to any office in the government or any
government-owned or -controlled corporations or in any of their subsidiaries.” (Republic Act No.
7160, Section 94)
A. In General
1. Modes of commencing official relations
a. The selection of persons for public office can only be obtained in the manner
prescribed by the Constitution or by law, generally through either:
1. Election
2. Appointment
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
2. Meaning of “Appointment”
a. It is the act of designation by the executive officer, board, or body to whom that
power has been delegated, of the individual who is to exercise the powers and
functions of a given office (versus being elected in office by popular vote).
(Borromeo v. Mariano, 41 Phil. 322 (1921)
d. The power to appoint carries with it the power or remove or discipline. (Aguirre, Jr. v.
De Castro, 321 SCRA 95 (1999); Bagatsing v. Herrera, 65 SCRA 434 (1975); Lacson
v. Romero, 84 Phil. 740 (1949)
2. The appointing power has the prerogative to select, according to his judgment,
persons whom he thinks is best qualified among those who have the necessary
qualifications and eligibilities, provided, however, that it be exercised in good
faith and not in a malicious, harsh, oppressive, vindictive or wanton manner or
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
out of malice or spite. (Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court, 140 SCRA 22 (1985)
The Philippine legislature has no power to enact laws which expressly or impliedly diminish the
authority conferred by the Act of Congress on the Chief Executive.
A person next-in-rank, competent and qualified to hold the position, is entitled to a vacancy
occurring in any competitive or classified position in the government. If there are 2 or more persons
under equal circumstances, seniority must be given preference.
JC questioned the appointment of PC as members of the Board of medical Examiners since his
name was not included in the list made by the Executive Council of the Philippine Medical
Association pursuant to Section 13 of Republic Act No. 2382.
The appointment of PC was valid but the members of the Supreme Court had three views.
The first view believes that Section 14 is unconstitutional because it would constitute a reduction
and impairment of the appointing power vested in the President by the Constitution. Moreover,
inclusion in the list is not one of the requirements in Section 14.
The second view is that Section 13 is unconstitutional but is merely directory in nature.
Third view says that it is not necessary to pass upon the constitutionality of Section 13 or to
determine whether it is merely directory or mandatory. The appointment is sanctioned by Section
15, for in cases of conflicts between 2 provisions of the same statute, the latter one prevails.
c. “The Congress, may, by law, vest the appointment of other officers lower in
rank in the President alone, in the court, or in the heads of departments,
agencies, commissions or boards.” (Constitution, Article VII, Section 16)
d. “The Supreme Court shall have the following powers: x x x Appoint all
officials and employees of the judiciary in accordance with the Civil Service
Law.” (Constitution, Article VIII, Section 5(6))
e. “The Members of the Supreme Court and judges of lower court shall be
appointed by the President from a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy. Such appointments need
no confirmation. For the lower courts, the President shall issue the
appointments within ninety days from the submission of the list.”
(Constitution, Article VIII, Section 9)
h. “No candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the government or any government-
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
owned or controlled corporations or in any of their subsidiaries.”
(Constitution, Article IX-B, Section 6)
i. “The officials and employees of the Office of the Ombudsman, other than
the Deputies, shall be appointed by the Ombudsman according to the Civil
Service Law.” (Constitution, Article XI, Section 6)
b. Subject to confirmation
1. Where the confirmation of some other officer of body is required, the
commission can be issued only when confirmation is obtained.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
a. Express – may be done verbally, in writing, by taking the oath of office, or posting of
bond.
b. Implied – when, without formal acceptance, the appointee exercises or performs the
duties and functions of an office.
2. Exceptions:
a. “The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal military or civil service.” (Constitution, Article II,
Section 4)
b. “The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both,
shall be imposed upon any person who, having been elected by popular
election to a public office, shall refuse without legal motive to be sworn in or
to discharge the duties of said office.” (Revised Penal Code, Article 234)
b. Contrary view
1. The right of the appointee to be inducted depends upon the fact of
appointment, and not on his ability to establish the fact of appointment by
production of the written appointment where the law does not provide a specific
manner in which the appointment shall be made.
Venecia was appointed acting chairman of NAWASA in 1961 by the President. He, however, said
that he was appointed ad interim, and took his oath of office as such. The Commission on
Appointments confirmed the appointment. Less than a year after, Peralta was appointed ad interim
by the new President to the same position.
Venecia’s oath and confirmation did not imply a prior ad interim appointment. The only reliable
evidence on the matter is that Venecia was appointed only as acting Chairman, and this could not
ripen into a permanent one even with the confirmation by the Commission on Appointments
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
because there was no valid nomination or recess of appointment. It was incumbent upon Venecia to
prove that he was indeed appointed ad interim, and the better rule requires some kind of written
memorial that could render title to public office indubitable.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.” (Constitution, Article VII, Section 16)
2. All other officers whose appointments are not otherwise provided by law.
4. Other officers lower in rank whose appointments the Congress, by law, vests in
the President alone.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
2. Confirmation of appointments by Commission on Appointments
a. Only the officers in the first group above require the consent or confirmation of the
Commission on Appointments. Congress cannot, by law, require confirmation of
appointments of other officers.
b. The President appoints the members of the SC, judges of the lower courts including
the Sandiganbayan, the Tanodbayan and his deputies from a list made by the
Judicial and Bar Council. These do not require confirmation of the Commission on
Appointments. Same rule applies if the Vice-President is appointed to a cabinet
position.
c. The Administrative Code also vests in the President the power to appoint the
Chairman and members of the Commission on Human Rights, which is likewise not
subject to confirmation of the Commission on Appointments. (Administrative Code,
Book V, Chapter 13, Title II, Subtitle A, Section 4; Bautista v. Salonga, 172 SCRA
160 (1989))
b. Ad interim
1. Those made while Congress is not in session or is in recess.
c. Permanent
1. Those which subsist until lawfully terminated.
d. Temporary or Acting
1. Those which last until a permanent appointment is made.
5. Ad interim appointments
a. These are appointments made by the President while Congress is in recess, thus,
the Commission on Appointments may only deliberate upon such appointments
when Congress goes into session.
R was appointed ad interim Chairman of the Board of Examiners, but his appointment papers were
not released to him. The Civil Service Commission informed him that his appointment had been
recalled and the President instead appointed Y as acting Chairman.
The ad interim appointment of R is invalid, illegal and does not subsist. Since his appointment was
never released, it is incomplete and there was in fact and in law no ad interim appointment that
could be validly transmitted to and acted upon by the Commission on Appointments.
b. Since acting appointments are temporary, they cannot be validly confirmed by the
Commission on Appointments because confirmation presupposes a valid
nomination of ad interim appointment. (Valencia v. Peralta, 8 SCRA 692 (1963))
d. A person appointed in an acting capacity has no fixed tenure of office and his
appointment can be terminated at the pleasure of the appointing power. However,
such appointments cannot be used to circumvent the security of tenure principle in
the Constitution and Civil Service Law. (Civil Service Commission v. Darangina, 513
SCRA 648 (2007); Gayatao v. Civil Service Commission, 210 SCRA 183 (1992))
e. An unqualified person cannot be appointed even in an acting capacity. (Ignacio v.
Banate, Jr., 153 SCRA 546 (1987))
7. Designations
a. Designation is merely the imposition of new or additional duties upon an officer to
be performed by him in a special manner while performing the functions of his
permanent office.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
c. It does not entitle the officer designated to additional benefits or the right to claim
salary attached to the position. Neither can the Commission on Appointments
validly act upon it, as there is no appointment issued. (Dimaandal v. Commission on
Audit, 291 SCRA 322 (1998)
Republic Act No. 3137 created the Embroidery and Apparel Control and Inspection Board (EACIB),
Section 2 of which provides the composition of the Board. The validity of the Act was attacked on
the ground that while Congress may create an office, it cannot specify who the President can
appoint therein.
Section 2 of Republic Act No. 3137 does not deprive the President of his power to appoint. Where
no appointments are necessary, and officials occupy another position in an ex-oficio capacity, the
President is not deprived of his constitutional power to make appointments even if Congress
prescribes which officials should occupy the said ex-oficio positions.
b. Confirmation
1. The power to confirm or reject certain appointments belongs to Congress
through the Commission on Appointments since it is a check on the executive.
c. Issuance of commission
1. “Commission” is the written authority from a competent source given to the
officer as his warrant for the exercise of the powers and duties of the office. It is
the written evidence of the appointment.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
personnel of the entire government system, both national and local, including the
military.
b. Purpose – to enable the national and local government and all its instrumentalities
and agencies to render more efficient services to the public by enabling them to
obtain efficient public servants. The Civil Service system seeks to establish a merit
system of fitness and efficiency as the basis of appointments.
b. Security of tenure
d. Career officers other than those in the Career Executive Service who are
appointed by the President (i.e., Foreign Service Officers in the Department
of Foreign Affairs);
b. Non-Career Service
1. Characteristics of non-career service:
a. Entrance on bases other than those of the usual test of merit and fitness
b. Department heads and other officers of cabinet rank and their staffs
3. Career Executive Service (officials of this level have no security of tenure and
may be removed anytime unless they have secured an eligibility from the Career
Executive Service Board (CESB) and have been issued the Career Executive
Service Officer (CESO) rank by the President upon recommendation of the
CESB)
2. Entrance to the third level is prescribed by the CESB and does not require
previous qualifications to the lower level.
4. Constitutional classification
a. Competitive - Those whose appointments are made according to merit and fitness
as determined by competitive examinations.
b. Non-competitive – Those whose appointments do not take into account merit and
fitness as determined by competitive examinations. These include positions which
are policy-determining, primarily confidential, or highly technical in nature.
(Constitution, Article XI-B, Section 2(2))
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Alberto!C.!Agra,!Ateneo!Law!School
5. Determination of merit and fitness by competitive examinations
a. Generally, the selection of any appointee to any government position shall be made
only according to merit and fitness to be determined, as far as practicable, by
competitive examinations to perform duties and assume the responsibility of the
position, without regard to any other consideration such as sex, color, social status,
religion, or political affiliation.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
7. Qualification standards in the Civil Service
a. These are the minimum requirements for a class of position in terms of education,
training, experience, civil service eligibility, physical fitness, and other qualities
required for successful performance. The degree of qualifications is determined by
the appointing authority on the basis of qualification standards for the particular
position.
4. As aid in the inspection and audit of the agencies’ personnel work programs
(Presidential Decree No. 807, Section 20)
e. Offsetting of deficiencies
1. When necessary, education, experience or training may be used
interchangeably to offset deficiencies, except the required eligibility. The
decision as to when the conditions give rise to necessity to interchange
education with experience or training and vice-versa rests upon the sound
discretion of the appointing authority.
b. Temporary or acting
1. One which is issued to a person who meets all the requirements for the position
to which he is being appointed except the appropriate civil service eligibility.
2. His appointment shall not exceed 12 months and he may be replaced sooner if
a qualified civil service eligible becomes available. A temporary appointment
does not become permanent just because the appointee is allowed to continue
in it for a number of years.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
9. Instances of temporary appointment
a. Where the appointee does not possess civil service eligibility.
b. Where the appointee has civil service eligibility but different from that which is
appropriate to the position for which he was appointed.
c. Where the appointment is made by the President to fill an executive office during the
absence or incapacity of the incumbent.
d. Where the appointee has not passed any civil service examination.
e. Where the new appointment is still subject to a condition and compliance has not
been made yet. (i.e., subject to the consent and approval of the municipal council
(pursuant to Republic Act No. 1551, Section 1)
f. Where a new incumbent has been appointed to fill the position of a regular
employee who has been illegally suspended or dismissed. There is no vacancy in
this case and the illegally dismissed employee is entitled to be reinstated to his
position.
3. The Civil Service Commission may recall, on its own initiative, the erroneous
initial approval of an appointment and review the same anew.
d. Criterion to be employed
1. Whether or not the appointee possesses the appropriate civil service eligibility or
the required approved qualifications to an office is used by the Civil Service
Commission as the sole criterion when it acts on appointments.
2. The Civil Service Commission does not have the power to make the
appointment itself or to direct the appointing authority to change the
employment status of an employee (e.g. from temporary to permanent).
(Province of Camarines Sur v. Court of Appeals, 246 SCRA 281 (1995))
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
3. The Civil Service Commission has no authority to revoke an appointment on the
ground that another is more qualified, but it may order reinstatement of an
illegally demoted or dismissed employee. (Gayatao v. Civil Service Commission,
201 SCRA 183 (1992); Cabagnot v. Civil Service Commission, 223 SCRA 59
(1993)).
f. Attestation of appointment
1. Purpose: to determine whether the appointee possesses the requisite civil
service eligibility.
2. When the appointee is qualified, and all other requirements have been satisfied,
the Civil Service Commission has no choice but to attest the appointment.
Once this function is discharged, the Commission’s participation in the
appointment process ceases.
h. Recall of appointment
1. The Civil Service Commission is authorized to recall an appointment initially
approved, but only when such appointment and approval are proven to be in
disregard of the applicable provisions of the Civil Service Law and regulations.
b. All such persons must undergo a 6-month probationary period and thorough
character investigation in order to acquire permanent civil service status.
D. Vacancy
1. Meaning of vacancy
a. There is vacancy when an office is empty and without a legally qualified incumbent
appointed or elected to it with a lawful right to exercise its powers and perform its
duties.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
a. An office may be vacant when it is occupied by one who is not a de jure officer, as
by mere usurper, or by one who is holding over.
4. Classification of vacancy
a. Original – When an office is created and no one has been appointed to it yet.
b. Constructive – When the incumbent has no legal right or claim to continue in office
and can be legally replaced by another functionary.
c. Accidental – When the incumbent having died, resigned, or been removed, there is
no one in esse discharging the duties of the office.
d. Absolute – When the term of an incumbent having expired and the latter not having
held over, no successor is in being who is legally qualified to assume the office.
5. Causes of vacancy
a. Death, permanent disability, removal from office, or resignation of the incumbent, if
illegally suspended or dismissed, the office is not vacant. Resignation or removal
must be valid so that the office may be declared vacant.
E. Qualifying to Office
1. Qualification (as an act) to an office
a. The person appointed or elected to a public office is usually required by law, before
entering upon the performance of his duties, to do some act by which he shall
signify his acceptance of the office and his undertaking to execute the trust confided
in him. This generally consists in taking of an oath, or giving an official bond.
“Before they enter on the execution of their office, the President, Vice-President, or the Acting
President shall take the following oath or affirmation:
‘I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President
(or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So
help me God.’ (Constitution, Article VII, Section 5)
“Before they enter on the execution of their office, the President, Vice-President, or the Acting
President shall take the following oath or affirmation:
‘I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President
(or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So
help me God.’ (Constitution, Article VII, Section 5)
“All public officers and employees shall take an oath or affirmation to uphold and defend this
Constitution.” (Constitution, Article IX-B, Section 4)
“All members of the armed forces shall take an oath or affirmation to uphold and defend this
Constitution.” (Constitution, Article XVI, Section 5(1))
“All public officers and employees of the government including every member of the armed forces
shall, before entering upon the discharge of his duties, take an oath or affirmation to uphold and
defend the Constitution; that he will bear true faith and allegiance to it; obey the laws, legal orders
and decrees promulgated by duly constituted authorities; that he will well and faithfully discharge to
the best of his ability the duties of the office or position upon which he is about to enter; and that he
voluntarily assumes the obligation imposed by his oath of office, without mental reservation or
purpose of evasion. Copies of the oath shall be deposited with the Civil Service Commission and
the National Archives.” (Administrative Code of 1987 (Executive Order No. 292), Book I, Chapter 10,
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
Section 40)
“All elective and appointive local officials and employees shall, upon assumption to office, subscribe
to an oath or affirmation of office in the prescribed form. The oath or affirmation of office shall be
filed with the office of the local chief executive concerned. A copy of the oath or affirmation of office
of all elective and appointive local officials and employees shall be preserved in the individual
personnel records filed under the custody of the personnel office, division, or section of the local
government unit concerned.” (Republic Act no. 7160, Section 92)
b. Exception: Oath taking is mandatory for the President, Vice-President, or the Acting
President.
b. Oaths may also be administered by another officer whose duties, as defined by law
or regulation, require presentation to him of any statement under oath.
b. Public ministerial officers – Those whose actions may affect rights and interest of
individuals.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
b. It is an obligation binding the sureties to make good the officer’s default.
c. It creates a primary contractual obligation between the injured party and the officer
and surety.
2. However, the rule does not apply when the giving of the bond within the time
prescribes is expressly made a condition precedent to the right to the office.
F. De Facto Officers
1. The de facto doctrine
a. It is the principle which holds that a person who, by the proper authority, is admitted
and sworn into office is deemed to be rightfully in such office until, by judicial
declaration in a proper proceeding, he is ousted therefrom, or his admission thereto
is declared void.
2. Under color of a known and valid appointment or election, but where the officer
has failed to conform to some precedent requirement or condition, such as to
take an oath, give a bond, or the like; or
3. Under color of a known election or appointment, void because the officer was
not eligible, or because there was a want of power in the 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 the public officer; or
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
4. Under color of an election or appointment by or pursuant to a public,
unconstitutional law, before the same is adjudged as such. (Luna v. Rodriguez,
37 Phil. 180 (1917))
c. He must have qualified himself to perform the duties of such office according to the
mode prescribed by the Constitution or law.
a. There can be no officer, either de jure or de facto, where there is no office to fill.
While there can be no de facto officer where there is no de jure office, there may be
a de facto officer in a de jure office. (Government of the Philippine Islands v.
Springer, 50 Phil. 259 (1927); Turanda v. Sandiganbayan, 249 SCRA 342 (1995))
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
are valid insofar as the rights of the public and
third persons are concerned
After having qualified and extended an ad interim appointment by the President as Acting Vice-
Mayor, Barte performed the duties and functions of the office. His appointment was bypassed by
the National Assembly. Subsequently, the Executive Secretary informed Barte that a new
designation was under consideration, for which reason the respondent City Treasurer denied
payment of Barte’s salary.
The Supreme Court ruled that Barte has no right to continue in office and receive his salary because
his ad interim appointment ceased or expired upon the adjournment of the session of the National
Assembly. Worse, he was informed by the Executive Secretary that his designation as Acting Vice-
Mayor ceased upon adjournment of the regular session of the National Assembly and that a new
designation was still under consideration. A public officer having the capacity to act on behalf of the
government in whom the exercise of sovereignty is vested has to be chosen in the manner and form
provided by law. Otherwise, he would be a plain usurper of official functions.
b. Where the officer de jure is also the officer de facto, the lawful title and possession
are united and no other person can be an officer de facto to that office.
c. Where the de jure officer whom the purported de facto officer replaces did
not resign in the manner required by law, so that there was no de jure office
to be filled; or
d. Where statutory conditions of the creation of the office have not been
complied with
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
1. The color of right may consist in an election or appointment, or in holding over
after the expiration of one’s term, or acquiescence by the public in the acts of
such officer for such a length of time as to raise the presumption of colorable
right by election or appointment.
b. A person who has been proclaimed elected to public office and assumes it on the
basis of the returns and proclamation though later ousted as the result of an election
contest, is at least a de facto officer prior to ouster and entitled to retain the
emoluments received during that time. (Rodriguez v. Tan, 91 Phil. 724 [1952])
e. Where the mayor, because of poor health, designated the Vice-Mayor to act in his
place, then the latter designated the first ranking councilor who, not being also in
good health, in turn, designated the third ranking councilor to act as mayor, when
under the law then in force, such designation should be made by the Provincial
Governor with the consent of the Provincial Board, still the Acting Mayor was acting
under color of authority, as distinguished from a usurper who is one who has neither
title nor color of right to an office. his acts are official acts of a de facto officer, and,
therefore, valid and binding. All the requisites of de facto officership are present in
this case, i.e., an office and actual physical possession of the office, under color of
title or authority. (Codilla v. Martinez, 110 Phil. 24 [1960])
f. A judge who, in good faith, continues to act and is recognized by common error
after the abolition of his court is deemed de facto judge of a court which succeeds
to the jurisdiction of that presided over by him; and the judgment pronounced by a
judge de facto who is generally accepted and recognized as judge by common error
of the community, is valid and binding. (U.S. v. Abalos, 2 Phil. 73 [1903])
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
g. A judge who continued to exercise his duties after his appointment was disapproved
by the Commission on Appointments according to a newspaper report but before
receiving official notification regarding the rejection of his appointment is a de facto
judge, and all his official actions as such judge are valid on all legal points and for all
kinds of cases as if he were a de jure. (Regala v. Judge of CFI, 77 Phil. 684 [1946])
b. Contrary view
1. For the sake of public policy, the incumbent will be recognized as an officer de
facto until the unconstitutionality of the act has been judicially determined.
b. It may be instituted only by the person claiming to be entitled to the office or by the
Republic as represented by the Solicitor General or by the public prosecutor.
b. Exception: If one becomes a de facto officer without bad faith and renders service,
he may recover the compensation provided by law for the period he rendered the
service, or retain the emolument received during that time.
c. Exception to the exception: The rule that a de facto officer is entitled to receive the
salary for services actually rendered does not apply where the officer was not
appointed but merely designated. Designation does not entail payment of additional
benefits or grant upon the person so designated the right to claim the salary
attached to the position. (Dimaandal v. Commission on Audit, 291 SCRA 322
(1998))
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
a. A de facto officer is held to the same degree of accountability for official acts as a
de jure officer.
b. While the official acts of a de facto officer are valid and may be binding with regard
to third persons and the public, such officer may be liable for all penalties imposed
by law for usurping or unlawfully holding office, or for exercising the functions
thereof without lawful right or without being qualified according to law.
c. A de facto officer cannot excuse his responsibility for crimes committed in his
official capacity by asserting his de facto status.
d. A rightful incumbent can recover the salary received by a de jure officer during the
latter’s wrongful incumbency even if the de facto officer occupied the office in good
faith and under color of title. (General Manager, PPA v. Monserate, G.R. No.
129616, April 17, 2002; Monroy v. Court of Appeals, 20 SCRA 620 (1967); Civil
Liberties Union v. Executive Secretary, 194 SCRA 317 (1991); Arimao v. Taher, 498
SCRA 74 (2006))
“The Philippines is a democratic and republican state. Sovereignty resides in the people and all
government authority emanates from them.” (Constitution, Article II, Section 1)
1. The entire source of public governmental authority is found in the people themselves,
either directly or through representatives chosen by them.
2. Universal authority in any public agent cannot exist under our constitutional government.
There are public officers, however, whose authority is general in its nature, while that of
others is expressly limited and special.
2. Every citizen has the right to assume that the public officer charged by law with certain
duties knows such duties and performs them in accordance with law.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
E. Scope of power of a public officer
1. Expressly conferred upon him by the law under which he has been appointed or elected;
2. Expressly annexed to the office by the law which created it or some other law referring
to it; or
A lawyer with the DOJ medico-legal section was temporarily detailed to assist the fiscal, and he was
given the powers and functions of an assistant fiscal. He signed the information in the case at bar.
The opposing counsel filed a motion to quash alleging his lack of authority.
The lawyer has the power to sign the information as the powers and functions of the fiscal can be
entrusted to someone else. The duties of a public office include all those which are truly within its
scope, and which are essential to the accomplishment of the main purpose for which the office is
created. Even powers that are incidental or collateral are included if it is germane to and serve to
promote the accomplishment of the principal purpose.
Radio Communications of the Philippines, Inc. v. Santiago (58 SCRA 493 [1974])
The Public Service Commission punished Radio Communications with a fine. They appealed
alleging that the Public Service Commission has no power to do so since there is an express
limitation in the law exempting radio companies from the jurisdiction of the body.
The Court ruled that the Public Service Commission has no power to impose such a fine. Except for
constitutional officials who can trace their competence to act to the fundamental law itself, a public
officer must locate in the statute relied upon a grant of power before he may exercise it. It need not
be express. It may be implied from the wording of the law. Acts done without authority can be set
aside.
G. Duration of authority
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
1. Duration of term
a. The exercise of authority by a public officer is limited to that term during which he is
invested by law with the rights and duties of the office. He cannot exercise authority
granted by law before his term begins or after it has terminated.
a. Ministerial
1. A duty is ministerial when it is absolutely certain, and imperative, involving
merely execution of a specific duty arising from fixed and designated facts.
There is no element of discretion in the duty.
b. Discretionary
1. Such duties require the exercise of reason in adapting the means to the end,
and discretion in determining how or whether the act shall be done. It arises
when the act can be performed in more than one way, which leads the
performer in which way it should be performed.
2. From the standpoint of the obligation of the officer to perform his powers and duties
a. Mandatory
1. Powers are generally construed as mandatory, even if the language may be
permissive, when it is for the benefit of the public or individuals.
b. Permissive
1. Directory provisions usually state the manner and mode on how the official will
do the duties, and those which are designed merely to secure order, uniformity,
system, and dispatch in public business.
3. From the stand point of the relationship of the officer to his subordinates
a. Power of control
1. It implies that the officer has the power to manager, direct and govern, including
the power to alter and to set aside what a subordinate had done in the
performance of his duties and to substitute his own judgment for that of the
latter. An officer with such a power can lay down the rules in the doing of an
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
act, and it is discretionary upon him to have the act undone if he is not followed,
or he may decide to do it himself.
b. Power of supervision
1. It is power of mere oversight over an inferior body. An officer with
supervisory power merely sees to it that all the rules are followed, but he
himself does not lay down such rules, nor does he have the discretion to
modify or replace them.
2. Exercise of discretion
a. The key distinction is whether the duty is mandatory or whether the act complained
of involves policy making or judgment.
2. An act is ministerial if nothing is left to the discretion of the person who must
perform.
K. Meaning of discretion
1. It is the act or the liberty to decide according to the principles of justice and one’s ideas
of what is right and proper under the circumstances, without willfulness or favor.
2. It is the faculty conferred by law upon public officers to act according to the dictates of
their own judgment and conscience, uncontrolled by the judgment and conscience of
others. (Lamb v. Phipps, 23 Phils. 156 (1912))
Lamb has been a public servant for 12 years. He has accounted for all the property that came into
his possession. Phipps, an auditor, did not issue a clearance in favor of Lamb due to a fear of suit
that a third party may file. Lamb filed a petition for mandamus.
Mandamus cannot compel the issuance of a clearance. The right to allow or disallow a claim
against the government is within the discretion of the auditor. A mandamus may issue to compel an
action only when, by reason of unnecessary delays in taking in any action at all, persons have been
deprived of a right and have no adequate and speedy remedy in the ordinary course of law. The
mandamus cannot issue in this case, as Lamb could appeal the decision of Phipps to the Governor
General before resorting to the courts.
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Alberto!C.!Agra,!Ateneo!Law!School
Aprueba v. Ganzon (18 SCRA 8 [1966])
A Mayor closed down the cafeteria of the City Market due to violations of an ordinance. Stall
owners filed a petition for mandamus to compel said mayor to reopen the cafeteria on the grounds
that there were no delinquency rentals, it has complied with health regulations, and that it is
ministerial on the part of the mayor to allow them to operate. The City Charter provides that the
mayor shall have the power to grant and refuse municipal licenses and to revoke the same for
violation of conditions upon which they were granted or if unlawful acts are committed under such
licenses, or for any other reason for the public interest.
The privilege of stall owners rested on the sound discretion of the mayor and refusal on his part to
grant continuance of the privilege cannot be compelled by mandamus. The writ will not issue to
control or review the exercise of discretion by a public officer where the law imposes upon him the
right of a duty to exercise judgment within the scope of his authority.
Pursuant to resolutions of the provincial board, Governor Zulueta issued 2 Executive Orders naming
the provincial government building “Provincial Capitol of Iloilo” and the renovated session hall
hterein as “President Garcia Hall”. The architect put up a sign “President Garcia Hall” on the
provincial government building, in violation of a law that prohibited the naming of buildings, among
other things, after living persons. Mandamus proceedings were instituted to have the sign removed
and replaced.
Mandamus lies. The putting up of the sign was patently illegal. While naming the session hall
“President Garcia Hall” was not illegal, putting up the sign on the provincial building itself was.
Zulueta is not only duty bound to observe the law, he is bound to enforce it. Thus, he may be
compelled to remove or rectify the unlawful act by mandamus, at the instance of the taxpayer.
Where the issue involved is one of public right and the issuance of a writ of mandamus is to compel
the observance of the law, petitioner need not show that he has any special or legal interest in the
result of the proceeding. It is sufficient that he is interested as a citizen in having the laws executed
and the duty enforced.
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
Torres v. Ribo (81 Phil. 44 [1948])
Candidates for upcoming elections were disqualified to form part of the Provincial Board of
Canvassers. Pursuant to the Election Code (which enumerates the valid substitutes for positions in
the Board), COMELEC appointed substitutes for the positions. However, some of the substitutes
were unable to take their appointments on time on November 22 and only arrived on November 24.
In the interim, the COMELEC appointed two other substitutes who did not belong to the
enumeration under the Election Code.
The substitution was invalid. The members of the Board of Canvassers is designated by law, and
the enumeration for the substitutes thereof is exclusive. Appointments falling outside the officers
allowed by law is not permissible even if such appointments are by COMELEC itself. The
appointment of a substitute member is personal and restricted and his powers must be performed
by him directly and in person. An officer to whom discretion is entrusted cannot delegate it to
another. The powers of the board are not purely ministerial, and they exercise quasi-judicial
functions. Thus, the Board was deemed constituted only at the time when all its members were
from lawful and valid appointments for purposes of the start of periods of appeal / protest.
2. Exception: When delegation is expressly disallowed, or when the acts require the public
officer to perform them in person.
2. In the absence of ratification, the State is not estopped by the unauthorized or illegal
acts of its agents.
3. Superior officers may ratify acts done by inferior officers only if they themselves are
empowered to make such acts and contracts.
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1. Where act involves exercise of discretionary power
a. No judicial interference for acts of officers in the performance of their duties which
are discretionary in nature or involve the exercise of judgment in the absence of
showing of an abuse of discretion or an arbitrary decision, fraud or corruption.
When the law gives an officer the power to determine the existence of certain facts,
such officer is the sole and exclusive judge of the existence of those facts.
2. Standards of personal conduct (The Code of Conduct and Ethical Standards for Public
Officials and Employees, Republic Act No. 6713, approved February 20, 1989)
a. Commitment to public interest
b. Professionalism
c. Justness and sincerity
d. Political neutrality
e. Responsiveness to the public
f. Nationalism and patriotism
g. Commitment to democracy
h. Simple living
3. Committee on Awards
a. Composition:
1. Ombudsman
2. Chairman and co-chairmen of the Civil Service Commission
3. Chairman of the Commission on Audit
4. Two (2) government employees to be appointed by the President
2. Establish a system of annual incentives and rewards to the end that due
recognition is given to officials and employees of outstanding merit on the basis
of the criteria or standards set forth above;
4. Formulate and adopt its own rules to govern the conduct of its activism, which
shall include guidelines for evaluating nominees, and mechanism for recognizing
the awardees in public ceremonies, and the creation of sub-committees.
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2. Ethical duties
a. Public officers are bound to perform their duties honestly, faithfully and to the best
of their abilities.
“All Members of the Senate and the House of Representatives shall, upon assumption of office,
make a full disclosure of their financial and business interest. They shall notify the House concerned
of a potential conflict of interest that may arise from the filing of a proposed legislation of which they
are authors.” (Constitution, Article VI, Section 12)
“A public officer or employee shall, upon assumption of office and as often as may be required by
law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the
President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the
Constitutional Commissions and other constitutional offices, and officers of the armed forces with
general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.”
(Constitution, Article XI, Section 17)
Section 7 of Republic Act No. 3019, requiring submission of sworn statements of assets and
liabilities every other year by government officials / employees is constitutionally challenged.
The Court upheld the statute as a valid exercise of police power with the aim of curtailing corruption
and maintaining the standard of honesty in the government. Due process is present because a
public office is not property, and due process will still be observed if and when the time comes to
remove an officer because of a pending removal. Given the realities of public service, the exercise
of police power in this case is valid. The intrusion of the statute into the privacy of officials has a
reasonable relation to the aim of the statute, and further, the public sector is subject to the control of
the state. The right against unreasonable search and seizure does not apply here, since it only
protects the sanctity of the domicile and communications. The self-incrimination guarantee only
comes into play when there is an existence of actual cases (civil, criminal, or administrative). Finally,
the law goes into the wisdom of the legislation, thus, it is a political questions that courts may not
intrude upon.
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Alberto!C.!Agra,!Ateneo!Law!School
W. Specific duties of public officials and employees
1. Act promptly on letters and requests
a. Public officers must respond to communications within 15 days from receipt thereof.
2. Written requests, petitions, or motions, sent by means of letters, telegrams, or the like,
must be acted upon by the public official or employee within 15 days from receipt
thereof, subject to the following:
2. Where the matter is non-routinary or the issues involved are not simple or
ordinary, write a note or letter of acknowledgment informing the interested party,
petitioner, or correspondent of the action to be taken or when such requests,
petitions, or motions can be acted upon, and prescribe the time, manner and
place of submission of additional information, if necessary. If all the
requirements are fulfilled, the public officer should inform the interested party of
the action to be taken and when such shall occur.
3. Agency referred to must take action in accordance with the letter, within 15 days
from receipt of the communication by the agency concerned.
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1. All papers and documents must be processed and completed within a reasonable time
from the preparation thereof, subject to the following rules:
a. When the law specifies a period for the action to be taken, the same shall be
followed.
b. When the law states no period, the agency concerned shall issue rules prescribing
reasonable time, taking into account the following factors:
1. Nature of the subject matter
2. Adequacy of the requirements necessary
3. Lack of resources caused by circumstances beyond the control of the office
4. Legal constraints that prevent action
5. Fault or neglect of the party concerned
6. Force majeure
2. When the duly authorized signatories are absent, the official next-in-rank or officer-in-
charge shall sign based on the foregoing rules:
a. If there is only one official next-in-rank, he shall automatically be the signatory;
b. If there are two or more officials next in rank, the appropriate officer shall prescribe
the order of priority;
c. If no official next-in-rank is available, the office shall designate an officer-in-charge
from among the lower ranked public officers in the organizational unit.
3. When to file:
a. Within 30 days after assumption of office, reckoned as of his first day in office
6. Accessibility of documents
a. To be made available for inspection at reasonable hours
b. To be made available for copying after 10 working days from the time they are filed
c. Persons requesting may be required to pay a fee for reproduction, certification and
mailing thereof
d. Any statement shall be made available for a period of 10 years after receipt of such
statement, to be destroyed at the end of such period, unless needed for an ongoing
investigation
e. Ombudsman may also inspect pursuant to the required written authority executed
by the public officer
7. Prohibited acts
a. It is unlawful to obtain or use any of the above statements for:
1. Any purpose contrary to morals or public policy
2. Any commercial purposes other than by news for dissemination to the general
public
b. The officials above can render opinions interpreting the provisions on the review and
compliance procedures in the filing of the statements
c. If the statement is not filed correctly, they shall inform the reporting public officer
and take corrective action
a. In the interest of national defense or security or the conduct of foreign affairs, such
information should be kept secret
b. If the life and safety of an individual is in imminent danger
c. Privileged information
d. The information comprises drafts of decisions, orders, ruling and policy decisions
e. If it is such a personal nature that a disclosure would constitute a violation of one’s
right to privacy
f. It would disclose investigatory records compiled for law enforcement purposes to
the extent that it would:
1. Interfere with enforcement proceedings
2. Deprive a person of a right to a fair trial
3. Disclose the identity of confidential source
4. Unjustifiably disclose investigative techniques
g. Premature disclosure as would likely lead to speculative financial speculations or
endanger stability of financial institutions
3. Every head of department, office, and agency should also establish information systems
to inform the public about rules, programs, reports, and all other documents classified
as public information.
2. Every department, office, and agency should also conduct continuing studies and
analyses of its work systems and procedures to improve delivery of public services.
3. They shall also develop and regularly update a service guide which should be made
available to the transacting public.
4. They shall also consult the public for their feedbacks, suggestions of the efficiency and
effectiveness of services.
5. They shall also continue to conduct research and experimentation on measures and
adopt innovative programs for motivating public officials and employees in observing
public service ethical standards.
6. They shall also, in consultation with the Office of the Ombudsman, appoint or designate
a resident Ombudsman who shall act on requests for public assistance referred to him
by the Ombudsman and his Deputies.
7. Government officials shall also make themselves open for consultations and dialogues
with their staff.
A. In general
2. Rights as a citizen
a. Protection from publication commenting on his fitness and the like
a. By reason of the public character of his employment, a public officer is not
entitled to the same rights accorded to an ordinary citizen. Examples are the
protection from publications commenting on his fitness and the prohibition on
engaging in certain political or business activities.
B. Right to Compensation
b. Salary
1. It is generally a fixed annual or periodical payment depending on the time and
not the amount of service.
c. Per diem
1. It is a daily allowance given for each day an officer is away from his home by
reason of his official duties. It is usually reimbursement for extra expenses.
2. It will not be considered per diem if it is given in the nature of compensation for
full time work.
d. Emoluments
1. It refers to the profits arising from the office, and that which is received as
compensation for services or which is annexed to the office as salary, fees or
perquisites and includes those which, by law, the officer is entitled to receive.
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b. Services rendered
1. The right to compensation grows out of the rendition of services. However, in
the absence of a statute to the contrary, a public officer is not entitled to
compensation for services rendered under an unconstitutional statute or
provision.
2. Compensation is paid only for service actually or constructively rendered,
following the “no work, no pay” principle.
e. Amount of compensation
1. The nature of an official’s position should be the determining factor in the fixing
of his or her salary. Thus, the law employs “grade” as the determinant of salary,
which depends upon the nature of one’s position, including the level of difficulty,
responsibilities, and qualification requirements thereof relative to that of another
position.
2. Law fixes the official’s grade. (Binay v. Sandiganbayan, 316 SCRA 65 (1999))
f. Ex oficio position
1. An ex oficio position is part of the principal office. Therefore, the official
concerned has no right to receive additional compensation for services in an ex
oficio position because these services are already paid for and covered by the
compensation attached to the principal office. (Bitonio, Jr. v. Commission on
Audit, 425 SCRA 437 (2004); Civil Service Commission v. De la Cruz, 437 SCRA
403 (2004))
5. Recovery of compensation
a. An action to recover the compensation attached to a public office belongs to the
person who has the true title to the office, not merely a colorable title thereto.
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b. Also, where the tenure of the de facto was wrongful, the salary received by
such may be recovered.
Rodriguez claims that Tan usurped the office of being a Senator from 1947 to 1949.
The Supreme Court ruled that Tan did was a de facto officer. One who had been proclaimed and
had assumed office but was later ousted because of an election protest was a de facto officer who
is entitled to compensation. The emoluments must go to the person who actually rendered the
service.
Monroy was the incumbent Mayor when he filed his certificate of candidacy as Representative.
Three days after said filing, he withdrew said certificate. COMELEC approved the withdrawal. The
Vice-Mayor took his oath of office as Mayor. The Court of First Instance held that Monroy ceased to
become Mayor upon the filing of the Certificate. It also held that Monroy must reimburse the
salaries to which the Vice-Mayor was entitled as mayor. The Court of Appeals affirmed the ruling of
the Court of First Instance.
The Vice-Mayor was entitled to the salaries since he took his oath of office as Mayor. The general
rule is that the rightful incumbent of an office may recover from a de facto officer the salary received
by the latter during the time of his wrongful tenure even though he entered into the office in good
faith and under color of title. Where a Mayor withdrew his Certificate of Candidacy, he does not
resume his post as Mayor. Therefore, he cannot be entitled to the compensation attached to said
office.
1. While the money 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,
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Alberto!C.!Agra,!Ateneo!Law!School
3. The garnishment or attachment of an officer’s salary is tantamount to a suit
against the State in its own court, which is prohibited except with its consent.
(Director of Commerce and Industry v. Concepcion, 43 Phil. 384 (1922))
The Constitution prohibits Congress from reducing the salary of the following
constitutional officers during their term or tenure in order to secure their
independence:
“The President shall have an official residence. The salaries of the President and Vice-President
shall be determined by law and shall not be decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of the term of the incumbent during which
such increase was approved. They shall not receive during their tenure an other emolument from
the Government or any other source.” (Constitution, Article VII, Section 6)
2. Chief Justice, Associate Justices of the Supreme Court, and judges of lower
courts
“The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges
of lower courts shall be fixed by law. During their continuance in office, their salary shall not be
decreased.” (Constitution, Article VIII, Section 10)
“The salary of the Chairman and the Commissioners shall be fixed by law and shall not be
decreased during their tenure.” (Constitution, Article IX-A, Section 3)
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4. Ombudsman and his Deputies
“The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of
the Constitutional Commissions, and they shall receive the same salary, which shall not be
decreased during their term of office.” (Constitution, Article XI, Section 10)
b. Congress may also increase the salaries of the mentioned officers but it shall not
take effect until after the expiration of their full term.
“No elective or appointive public officer or employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor accept without the consent of the
Congress, any present, emolument, office, or title of any kind from any foreign government.
3. In case of double appointments where there are 2 distinct offices, the public
officer may draw the salary attached to the 2nd position only when law
specifically authorizes him.
e. Exemptions
1. Those who render free voluntary service are exempted from the following:
a. Filing of statements of assets and liabilities and net worth, and financial
disclosures
b. Requirement of divestment
c. Eligibility requirements
d. Security of tenure
f. Prohibitions
1. Unless otherwise provided in the terms of their designations, volunteers are
prohibited from:
a. Exercising supervisory functions over personnel
b. Exercising functions of positions involving national security
c. Having access to confidential or classified information unless authorized by
proper authorities
d. Occupying regular plantilla positions
e. Having such services credited as government service and availing
themselves of retirement benefits
f. Using facilities and resources of the office for partisan political purposes
g. Receiving any pecuniary benefit such as honoraria, allowances, and other
perquisites of office. (Implementing Rules, Rule XII, Section 1)
C. Other rights
1. Rights under the Constitution
a. Right to self-organization
“The right to self-organization shall not be denied to government employees.” (Constitution, Article
IX-B, Section 2(5))
“The right of the people, including those employed in the public and private sectors, to form unions,
associations or societies for purposes not contract to law shall not be abridged.” (Constitution,
Article III, Section 8)
“x x x It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance with law.
x x x” (Constitution, Article XIII, Section 3, para. 2)
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1. The right includes the right to form labor organizations or unions and the right to
collective negotiation.
3. The right to strike is absolutely prohibited since the terms and conditions of
government employment are fixed by law.
“A Senator or Member of the House of Representatives shall, in all offenses punishable by not more
than 6 years imprisonment, be privileged from arrest while Congress is in session. No member shall
be questioned nor be held liable in any other place for any speech or debate in the Congress or in
any committee thereof.” (Constitution, Article VI, Section 11)
d. The right not to be removed or suspended except for cause provided by law
1. The existence of a charge, due hearing, and finding of guilt by the proper
authority is implied in the constitutional prohibition against removal or
suspension except for cause.
Jalosjos wanted to fully discharge his duties as a Congressman, despite his conviction for statutory
rape and acts of lasciviousness.
All top officials of the government are subject to law and Jalosjos’ membership in Congress does
not exempt him from statutes and rules which apply to validly incarcerated persons. Immunity from
arrest of members of Congress has always been granted in a restrictive sense. It cannot be
extended beyond its ordinary meaning. Emergency or compelling temporary leaves from
imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders
but what Jalosjos seeks is not of an emergency nature. Allowing him to attend congressional
sessions and committee meetings for 5 days or more in a week will virtually make him a free man
with all the privileges appurtenant to his position.
c. Government workers can form associations for purposes not contrary to law but this
right excludes the right to bargain collectively with the government, or to engage in
concerted activities. The right to strike is absolutely prohibited since the terms and
conditions of their employment are fixed by law.
e. Government agencies shall not approve “mass leave of absences”, which occurs
when “five or more employees of the same agency apply for leave simultaneously or
almost at the same time under circumstances evidencing collusion or common
design to participate in a prohibited mass action.” Officials who approve mass leave
applications to join mass actions shall also be subject to administrative sanction.
3. Rights under the Civil Service Decree and the new Administrative Code
a. The right to preference in promotion
1. Among the rules for the recruitment and selection of employees are as follows:
a. When vacancy occurs in a position in 1st level of Career Service, the
following shall be considered for promotion:
1. Employees in the department who occupy the next lower positions in
the occupational group under which the vacant position is classified /
those in other functionally related occupational groups
2. Those who are competent, qualified and with the appropriate civil
service eligibility.
b. When vacancy occurs in a position in the 2nd level of Career Service, the
rules for vacancy in 1st level positions also apply.
2. “Qualified next-in-rank”
a. This refers to an employee appointed on a permanent basis to a
position previously determined to be next-in-rank to the vacancy
proposed to be filled and who meets the requisites for appointment
thereto as previously determined by appointing authority and
approved by the Civil Service Commission.
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3. Levels of appeal
a. 1st – to the Secretaries / heads of agencies, instrumentalities,
government-owned or controlled corporations with original charters
b. 2nd – to the Merit System Protection Board
c. 3rd – to the Civil Service Commission (by protest questioning the
appointment)
d. 4th – Judicial review first to the Court of Appeals, then to the
Supreme Court
4. The participation of the appointing authority in the protest filed with the
Civil Service Commission is indispensable inasmuch as the action of the
protestant is really against the determination made by the appointing
authority.
2. If it remains unresolved after exhausting all available remedies, the parties may
jointly refer the dispute to the Public Sector Labor Management Council
constituted under the Administrative Code of 1987.
f. The right not to be suspended or dismissed except for cause as provided by law
and after due process
g. Right to organize
1. Government employees shall not be discriminated against in respect of
employment by reason of their membership or participation in employees’
organizations.
2. Employment should not be subject to the condition that they shall not join or
shall relinquish membership in the organization.
4. Next-in-Rank rule
a. Not a mandatory requirement
1. The next-in-rank rule applies only in cases of promotion. It neither grants a
vested right to the holder nor imposes a ministerial duty on the appointing
authority to promote such person to the next higher positions. The person next-
in-rank is only given a preferential consideration for promotion to a vacant
position.
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c. Discretion of appointing authority
1. The next-in-rank rule is not absolute and it may be disregarded for sound
reasons made known to the next-in-rank.
2. The appointing authority is given wide discretion to fill the vacancy among the
several alternatives provided for by law such as through transfer, reinstatement,
reemployment, and appointment of outsiders with appropriate civil service
eligibility.
d. Overriding factor
1. The overriding factor for the next-in-rank rule is to foster a more efficient public
service.
Edralin was appointed as Administrative Officer V in the Bureau of Forest Development although
she was 9 or 10 salary ranges below Meram, who was next-in-rank. Meram appealed to the Merit
Systems Board which found (together with the Civil Service Commission) that Edralin was not next-
in-rank. But because of a letter-petition to the President where she identified herself as the wife of
Efren Edralin of Ilocos Norte, the Office of the President ordered her appointment.
Edralin is not an employee next-in-rank to the vacated position, and although there is no mandatory
nor peremptory requirement that persons next-in-rank are entitled to preference in appointments,
the very purpose of the Civil Service law dictates that persons who are qualified and next-in-rank
should be given preferential consideration when filing up a vacated position through promotion.
Appointments under the Civil Service law should be based on merit and fitness and should never be
based on how intimate a friend or how closely related an appointee is to the powers that be. And
granting that Edralin possesses the qualifications required for the contested position, it cannot be
denied that Meram equally possesses the same qualifications, if not in greater degree, and more
importantly, she is next-in-rank to the vacated position and thus deserves to be appointed to the
disputed item.
5. Personnel actions
a. “Personnel action” refers to any action denoting movement or progress of personnel
in the civil service which must be in accordance with the rules or standards
promulgated by the Civil Service Commission. Personnel actions include the
following:
2. Promotion
a. It refers to advancement from one position to another with an increase in
duties and responsibilities as authorized by law and usually accompanied by
an increase in pay. The movement may be from one department or agency
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to another, or from one organization unit to another in the same department
or agency. (Presidential Decree No. 807, Section 24(b))
3. Transfer
a. It refers to movement from one position to another of equivalent rank, level,
or salary without break in service involving issuance of appointment.
4. Reinstatement
a. It refers restoration to a state or condition from which one has been
removed or separated. (Viernes v. National Labor Relations Commission,
400 SCRA 557 (2003))
b. Who may be reinstated: any person who has been permanently appointed
to a position in the career service and who has, through no delinquency or
misconduct, been unlawfully separated therefrom.
d. Receipt by an employee of separation and terminal leave pay are not fatal to
allow appeal for reinstatement where acceptance of the benefits was
dictated more by economic necessity rather than by a desire to leave
government employment. (Dytiaco v. Civil Service Commission, 211 SCRA
88 (1992))
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f. Mandamus is available where reinstatement involves the exercise of
discretion by the appointing power. (Torregoza v. Civil Service Commission,
211 SCRA 230 (1992))
5. Reemployment
a. Persons who have been appointed permanently to career positions and
separated as a result of the reduction in work force and / or reorganization
may be re-employed. (Presidential Decree No. 807, Section 24(e))
6. Detail
a. It refers to the movement of an employee from one department or agency to
another without the issuance of appointment.
c. If the employee believes that there is no justification for the detail, he may
appeal his case to the Civil Service Commission but the decision to detail
the employee shall be executory pending appeal, unless the Civil Service
Commission orders otherwise. (Presidential Decree No. 807, Section 24(f))
7. Reassignment
a. An employee may be reassigned from one organizational unit to another in
the same department but such reassignment shall not involve a reduction in
rank, status or salary. Otherwise, the reassignment constitutes constructive
removal which is violative of the right to security of tenure. (Presidential
Decree No. 807, Section 24 (g); Bentain v. Court of Appeals, 209 SCRA 644
(1992))
8. Demotion
a. It refers to movement from one position to another involving the issuance of
an appointment with diminution in duties, responsibilities, status, grade or
rank which may or may not involve reduction in salary. (Omnibus Rules
Implementing Book V of the Administrative Code of 1987, Rule VII, Section
11)
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2. Those not receiving basic pay / salary (e.g. only per diems, honoraria,
allowances)
c. All covered employees are mandated to pay contributions, except members of the
judiciary and the Constitutional Commissioners.
2. Separation benefits
a. It is in the form of a cash payment equivalent to 100% of his average
monthly compensation for each year of service he paid contributions but not
less than P12,000.00 payable upon reaching 60 years of age upon
separation, whichever comes later, or cash payment equivalent to 18 times
the basic monthly pension at the time of resignation or separation and a life
pension at start of age 60 to be given to those separated from service with
at least 15 years service and are below 60 years of age. (Presidential
Decree No. 1146, Section 11)
4. Disability benefits
a. Conditions for availment of permanent total or partial disability benefits
effective from the date of disability:
1. Employee is in the service at the time of disability; or
2. Is separated from the service and has paid at least 36 monthly
contributions within the 5-year period immediately preceding the
disability or has paid a total of at least 180 monthly contributions prior to
the disability. (Presidential Decree No. 1146, Sections 15-17)
b. A member who suffers temporary total disability for reasons not due to
grave misconduct, notorious negligence, habitual intoxication or willful
intention to kill himself or another may be entitled to benefits if he:
1. Is in the service at the time of disability and has exhausted his sick leave
credits; or
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2. If separated, has rendered at least 3 years of service and has paid at
least 6 monthly contributions in the 12-month period immediately
preceding the disability. (Presidential Decree No. 1146, Section 18)
5. Survivorship benefits
a. Available to the beneficiary when a member or pensioner dies.
6. Funeral benefits
a. The amount of funeral benefit shall be determined by the GSIS in the rules
and regulations but shall not be less than P12,000.00 to be increased to
P18,000.00 after 5 years upon the death of a qualified active member,
separated member, pensioner, and retiree. (Presidential Decree No. 1146,
Section 23)
1. For those employed after the effectivIty of R.A. No. 8291, their insurance
shall take effect on the date of their employment;
2. For those whose insurance will mature after the effectivity of the Act,
their insurance shall be deemed renewed on the day following the
maturity or expiry date of their insurance; and
3. For those without any life insurance as of the effectivity of the Act, their
insurance shall take effect on the day following said effectivity.
(Presidential Decree No. 1146, Section 24)
7. Pension defined
a. Pensions are regular allowances paid to an individual or group of individuals by the
government in consideration of services rendered, or in recognition of merit, civil or
military. (U.S. v. Hall, 98 U.S. 343)
b. Employees have a vested right in the pension where the pension is part of the terms
of employment and employee participation in the pension plan is mandatory. As
such, pension rights may not be taken away without due process of law. (GSIS v.
Montesclaros, 434 SCRA 441 (2004))
c. It is in the nature of “retained wages” and reward for giving the best years of
employees’ lives in the service of their country. Pension serves the purpose of:
1. Enticing or encouraging faithful and competent employees to enter or remain in
the service; and
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2. Allowing the employees who have become incapacitated by illness or accident
to continue discharging his duties to retire from the service with a relative
financial security.
Gratuity Pension
A donation and act of pure liberality on the part An act of justice emanating from desire to
of the State. provide adequate compensation for services
already rendered.
a. GSIS benefits are not gratuities but are considered contractual obligations.
b. Retirement benefits, gratuity and separation pay are invariably computed on the
basis of the highest salary, emoluments, and allowances received.
c. The doctrine of liberal construction of retirement laws cannot be applied where clear
intent of applicable laws and rules are demonstrably against retiree’s claim.
Petitioner was a COA State Auditor who was detailed to MIAA and subsequently designated as
MIAA’s Acting Assistant General Manager for Finance and Administration. He collected differential
salary under this position. When he retired, recomputation of his retirement benefits was denied on
the ground that the additional compensation he received (differential salary as Acting Assistant
General Manager) was merely an honorarium and that he was not appointed but merely designated.
Executive Order No. 966 states that retirement benefits are limited to the highest salary rate actually
received as fixed by law or indicated in a duly approved appointment, and that honoraria are not
considered in the computation.
Strictly speaking, while appointment is the selection by the proper authority of an individual who is to
exercise the functions of a given office, designation, on the other hand, connotes merely the
imposition of additional duties, usually by law, upon a person already in the public service by virtue
of an earlier appointment / election. A person may also be designated in an acting capacity, as
when he is called upon to fill a vacancy pending the selection of a permanent appointee thereto, or
more usually, the return of the regular incumbent. It is said that appointment is essentially executive
while designation is legislative in nature.
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In Executive Order No. 966, however, the term “appointment” was used in a general sense to
include the term “designation” and no distinction was intended between the two terms. The
Supreme Court thinks that this is to be the more reasonable interpretation, especially considering
that the provision includes in the highest salary rate “compensation for substitutionary services or in
an acting capacity”.
Petitioner’s request for inclusion of the monthly allowance he had been receiving from the
municipality where he was assigned as MTC judge in the computation of retirement benefits was
denied by the Commission on Audit on the ground that the allowances contemplated by the
retirement law are transportation, living, and representation allowances.
Allowances received from municipality should not be included and should instead be treated as
honorarium. Inasmuch as the law limits the computation of the lump sum of 5 years’ gratuity to the
“highest monthly salary plus the highest monthly aggregate of transportation, living, and
representation allowances that the judge was receiving on the date of his retirement”, it is
understood that other allowances are excluded.
Letter of Instruction No. 1418 which authorizes local governments to pay additional allowances to
judges of the courts within their territorial jurisdiction, limits the amount of such allowance and does
not provide that it shall be treated as part of the judge’s remuneration in computing his retirement
benefits. The word “may” signifies that the allowance my not be demanded as a matter of right but
is entirely dependent on the will of the municipality concerned. It should be treated as an
honorarium, an amount that is given not as a matter of obligation but in appreciation for services
rendered; a voluntary donation in consideration for services which admit of no compensation in
money.
Government Service Insurance System v. Civil Service Commission (245 SCRA 179 [1995])
Belo served full-time as Vice-Governor on hold-over capacity and received compensation in the
form of per diems. However, no deductions for GSIS contributions were made from these salaries /
per diem.
An employee can avail of retirement benefits notwithstanding failure to make contributions to GSIS
for the duration she was receiving per diem as compensation. Per diem is compensation creditable
in computing retirement benefits / length of service. A per diem could rightfully be considered a
compensation or remuneration attached to an office. The per diems received by Belo during the
period that she acted in holdover capacity obviously were in the nature of compensation or
remuneration for her services as Vice Governor of the Province of Capiz, rather than as a
reimbursement for incidental expense uncured while away from her home base.
The basis for the provision on retirement benefits is service to the government. While GSIS is partly
dependent on contributions of members, the fact that these contributions are minimal when
compared to the amount of retirement benefits actually received shows that such contributions,
while necessary, are not absolutely determinative in drawing up criteria for those who would qualify
as recipients of the retirement benefit system.
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In a sense, the contract made between the GSIS and the government employee is done on a take-
over-or-leave-it basis, that is, it is virtually a contract of adhesion which gives the employee no
choice but to involuntarily accede to the deductions made from their oftentimes meager salaries. If
the GSIS did not deduct, it was by its own choice. Failure to deduct is not the fault of employees.
Moreover, the source of GSIS benefits is not in essence merely contractual; rather, it is a social
legislation. The situation can be rectified by deducting a reasonable amount corresponding to the
contributions which should have been deducted during the period from the amount of retirement
benefits accruing to them.
Quaison, dissenting:
The GSIS is not obligated to grant retirement benefits to its members. Such obligation exists where
there is a contract of life or retirement insurance between the GSIS and the government employee.
Premiums payable by the members are the lifeblood of the retirement scheme. It would be unjust
for Belo to compel GSIS to grant her retirement benefits when she never remitted the employer’s
and her share of contributions for the period. To countenance such argument would result in an
equitable situation where the GSIS is exposed to a risk without the benefit of receiving any
contribution or premium. The GSIS was never intended to be a charitable institution for government
retirees. It is only fair that the GSIS be entitled to the payment of premiums as soon as it is exposed
to the risk insured against, whether it be a life or annuity insurance.
The most liberal application that can be given to the ruling of the GSIS with respect to services paid
on per diem basis is to limit it to cases where the retiree has paid the corresponding retirement
premiums during said periods.
The Commission on Audit disallowed the practice of SSS employees of availing retirement benefits
under Republic Act No. 660 and claiming the financial benefits granted under SSS Resolution No. 56
equivalent to the difference between what a retiree would have received under Republic Act No.
1616, less what he was entitled to under Republic Act No. 660. The Commission on Audit said that
his practice results in the increase of benefits beyond what is allowed by retirement laws and the
scheme of the SSS resolution partook of the nature of a supplementary pension / retirement plan.
The financial assistance package may have been instituted for noble, altruistic purposes.
Nevertheless, it is beyond dispute that the package constitutes a supplementary retirement plan.
SSS had no authority to maintain and implement such retirement plan, particularly in the face of the
statutory prohibition. The SSS cannot, in the guise of rule-making, legislate or amend laws or worse,
render them nugatory.
Brion v. South Philippine Union Mission of the Seventh Day Adventist Church (307 SCRA 497
[1999])
Brion is a member of the Seventh Day Adventist. When he retired, he received a monthly amount as
retirement benefit. When he was excommunicated, however, the monthly retirement benefit was
discontinued.
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Brion is entitled to his benefits. The conditions of eligibility for retirement must be met at the time of
the retirement at which juncture, the right to retirement benefits or pension, if the employee is
eligible, vests in him. In this case, Brion has already a vested right to receive retirement benefits, a
right which cannot be taken away from him by expulsion or excommunication, this not being a
ground for termination of retirement benefits under the SDA’s retirement plan.
Reinstatement Backwages
Restoration to a state or condition from which Restores the income that was lost by reason of
one had been removed or separated. One unlawful dismissal.
assumes the position he had occupied prior to
the dismissal.
2. The reason for this is that salary and perquisites are the reward of express or
implied services and therefore cannot belong to one who could not lawfully
perform such services.
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2. He may recover even if the salary has been paid to another appointed to fill the
vacancy unlawfully created.
3. The “no work, no pay” principle does not apply where it has been sufficiently
shown that a public official was wrongfully prevented from entering office and
carrying out his duties.
5. The office claiming back his office is not entitled to the salary during the
pendency of the case.
2. Even assuming the present incumbent’s tenure was permanent and fell under
the protection of the Constitution, his removal to give way to claimant’s superior
right may be considered as removal for cause.
2. Petition for quo warranto and mandamus affecting titles to public office must be
filled within 1 year from the date the petitioner is ousted from his position.
3. Claim for back salaries and damages is also subject to a 1 year prescriptive
period.
2. The grantee of pardon cannot be entitled to receive backpay for lost earnings
and benefits because pardon implies guilt.
b. Whether the public owns the records, discoveries, inventions, devices, data and the
like, made or prepared by an officer while occupying the office shall be determined
as follows:
1. If indispensable in the proper conduct of the office, the officer may not take
them as his own property even if he prepared them on his own time and paid for
them with his own funds.
2. If devices are not required by law, not indispensable in the proper conduct of
the office, and prepared by the officer apart from his official duties, officer may
acquire the property upon leaving the office.
c. A government employee shall own whatever he may conceive and perfect even
when he created them during the performance of the duties of his office, unless he
has merely produced that which he was employed to invent, or he was employed to
use his inventive faculties for the government’s benefit.
b. Exceptions: Section 281 of the National Internal Revenue Code grants an informer’s
award, under certain conditions, to persons instrumental in the discovery and
seizure of smuggled goods.
“For violation of the National Internal Revenue Code -- Any person, except an internal revenue
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official or employee, or other public official, or his relative within the 6th degree of consanguinity, who
voluntarily gives definite and sworn information, not yet in the possession of the Bureau of Internal
Revenue leading to the discovery of frauds upon the internal revenue laws or violations of any of the
provisions thereof, thereby resulting in the recovery of revenues, surcharges and fees and / or the
conviction of the guilty party and / or the imposition of any fine or penalty, shall be rewarded in a
sum equivalent to fifteen per centum of the revenues, surcharges or fees recovered and / or file or
penalty imposed and collected. The same amount of reward shall also be given to an informer
where the offender has offered to compromise the violation of law committed by him and his offer
has been accepted by the Commissioner and in such case, the fifteen per centum reward fixed
herein shall be based on the amount agreed upon in the compromise and collected from the
offender: Provided, That should no revenue, surcharges, or fees be actually recovered or collected,
such person shall not be entitled to a reward: Provided, further, That the information mentioned
herein shall not refer to a case already pending or previously investigated or examined by the
Commissioner or any of his deputies, agents: Provided, finally, That the reward provided herein shall
be paid under regulations issued by the Commissioner of Internal Revenue with the approval of the
Secretary of Finance.
For discovery and seizure of smuggled goods. -- To encourage the public and law-enforcement
personnel to extend full cooperation in eradicating smuggling, a cash reward equivalent to fifteen per
centum of the fair market value of the goods smuggled and confiscated goods shall be given to
persons instrumental in the discovery and seizure of such smuggled goods.” (National Internal
Revenue Code, Section 281)
6. They shall not be financially interested, directly or indirectly, in any contract with
or in any franchise or special privilege granted by the government or any
subdivision, agency or instrumentality thereof including any government-owned
or controlled corporation or their subsidiaries; and
7. They shall strictly avoid conflict of interest in the conduct of their office
8. The President is prohibited during his tenure from appointing his spouse and
relatives by consanguinity or affinity within the 4th civil degree to any of the
positions mentioned. (Constitution, Article VII, Section 13)
b. The purpose of the prohibition is the ensure that the officials will devote their full
time and attention to their official duties, prevent them from extending special favors
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to their own private business and assure the public that they will be faithful and
dedicated in the performance of their functions.
4. Neither shall he be appointed to any office which may have been created or the
emoluments thereof increased during the term for which he was elected;
(Constitution, Article VI, Section 13)
5. He shall not intervene in any cause or merit before any office of the government
for his pecuniary benefit or where he may be called upon to account of his office
or to give his vote as a member of Congress. (Constitution, Article VI, Article 14)
4. Forbidden office
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a. This refers to any office created or the emoluments of which have been
increased during the term for which he was elected, not merely during his
tenure or period of actual incumbency.
b. The period of ineligibility does not end until after the member shall have left
his office by the termination of his term (not tenure). Thus, even if a member
of Congress resigns or losses his seat before the end of his term, he shall
remain ineligible for appointment to such office.
4. The purpose of the prohibition is to remove any possibility of influence upon the
judges of these courts or heads of members of these bodies who might be
swayed in their decisions by their hope for future appointments to higher
positions. The same is true for the prohibition to appear before the Electoral
Tribunals, as well as the inconsistency of a member’s position in representing a
party who may not be entitled to be a member of the body to which he belongs.
4. The scope of indirect financial interest includes the spouse, but not the son or
brother of a member of Congress, unless used as a dummy or the member is
pecuniarily interested in the contract.
5. The prohibition seeks to prevent the use of whatever influence and pressure in
the award of government contracts.
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4. The prohibition seeks to insure that his every vote on any pending legislative
measure shall be dictated only for considerations of public good.
“The Members of the Supreme Court and of other courts established by law shall not be designated
to any agency performing quasi-judicial or administrative functions.” (Constitution, Article VIII,
Section 12)
a. The President is prohibited from designating members of the Supreme Court and
other courts established by law to any agency performing quasi-judicial and / or
administrative functions.
5. It will result in further delay in the disposition of cases pending in court. (H.S. De
Leon, Philippine Constitutional Law: Principles and CASES (Vol. 2), pp. 556-557
(1999))
“No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or
partisan political campaign.” (Constitution, Article IX-B, Section 2(4))
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“Professionalism in the armed forces and adequate remuneration and benefits of its members shall
be a prime concern of the State. The armed forces shall be insulated from partisan politics.
No member of the military shall engage directly or indirectly in any partisan political activity, except
to vote.” (Constitution, Article XVI, Section 5(3))
b. Elective officials and members of the Cabinet who are holding political offices are
not embraced in the prohibition. (Santos v. Yatco, 106 Phil. 754 (1959))
De Venecia is a civil service employee prosecuted for electioneering because he distributed leaflets
supporting a candidate.
De Venecia is guilty of electioneering. The distribution of leaflets openly supporting a candidate was
undoubtedly “aiding” such candidate. It was not merely mentioning the candidate whom he
supported or a mere expression of his opinion on current political problems.
“No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations of their
subsidiaries.” (Constitution, Article IX-B, Section 7)
Vice President can hold an appointive position in the cabinet as it is allowed by the constitution
President can own a Jollibee franchise
a. Any elective official is disqualified for appointment or designation to any public office
or position during his tenure in office. He may be appointed provided he first
resigns from his seat.
“x x x Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations of their
subsidiaries.” (Constitution, Article IX-B, Section 7)
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a. Appointive officials may hold any other office or employment only when allowed by
law (may be totally unrelated) or required by the primary functions of his position
(when the functions are related).
10. Prohibition against acceptance of any present, etc., from any foreign state
“No elective or appointive public officer or employee shall x x x accept without the consent of
Congress, any present, emolument, office, or title of any kind from any foreign government.”
(Constitution, Article IX-B, Section 8)
a. The prohibition against acceptance of any present, emolument, or official title of any
kind from any foreign state or government is founded on a just jealousy of alien
influence in domestic affairs.
“No elective or appointive public officer or employee shall receive additional, double or indirect
compensation, unless specifically authorized by law x x x.
“No member of the armed forces in the active service shall, at any time, be appointed or designated
in any capacity to a civilian position in the Government including government-owned or controlled
corporations or any of their subsidiaries.” (Constitution, Article XVI, Section 5(4))
a. This rule is an expression of the doctrine of civilian supremacy over the military and
in respect of the principle that the soldier’s job is to fight a war and not to run a
government.
“No loan, guaranty, or other form of financial accommodation for any business purpose may be
granted, directly or indirectly, by any government-owned or controlled bank or financial institution to
the President, Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and
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the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have
controlling interest during their tenure.” (Constitution, Article XI, Section 6)
a. The prohibition seeks to prevent officials mentioned from making use of their
influence to secure such loan, etc., to benefit them.
“No officer or employee in the Civil Service including members of the Armed Forces, shall engage
directly or indirectly in any partisan political activity or take part in any election except to vote nor
shall he use his official authority or influence to coerce the political activity of any other person or
body. Nothing herein provided shall be understood to prevent any officer or employee from
expressing his views on current political problems or issues, or from mentioning the names of
candidates for public office whom he supports: Provided, That public officers and employees
holding political offices may take part in political and electoral activities but it shall be unlawful for
them to solicit contributions from their subordinates or subject them to any of the acts involving
subordinates prohibited in the Election Code.” (Presidential Decree No. 807, Section 45)
“No elective or appointive public officer or employee shall receive additional or double
compensation unless specifically authorized by law nor accept without the consent of the President,
any present, emolument, office, or title of any kind from any foreign state.” (Presidential Decree No.
807, Section 46)
3. The prohibition applies to both elective and appointive officials, except if the law
authorizes the compensation. Neither can those officials accept any title,
emolument or present from any foreign state unless the President consents
thereto.
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“Laborers, whether skilled, semi-skilled or unskilled, shall not be assigned to perform clerical
duties.” (Presidential Decree No. 807, Section 47)
“No detail or reassignment whatever shall be made within three (3) months before any election.”
(Presidential Decree No. 807, Section 48)
e. Nepotism
“(a) All appointments in the national, provincial, city and municipal governments or in any branch or
instrumentality thereof, including government-owned or controlled corporations, made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the
persons exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word "relative" and members of the family referred to are those related
within the third degree either of consanguinity or of affinity.
(b) The following are exempted from the operation of the rules on nepotism: (1) persons employed in
a confidential capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of the
Philippines: Provided, however, That in each particular instance full report of such appointment shall
be made to the Commission.
The restriction mentioned in subsection (a) shall not be applicable to the case of a member of any
family who, after his or her appointment to any position in an office or bureau, contracts marriage
with someone in the same office or bureau, in which event the employment or retention therein of
both husband and wife may be allowed.
(c) In order to give immediate effect to these provisions, cases of previous appointments which are
in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or
salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of
these provisions.” (Presidential Decree No. 807, Section 49)
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3. "Engage in any business transaction with the local government unit in which he
holds office or has power of supervision, or with its boards, officials, agents or
attorneys, whereby money or any valuable consideration is paid or transferred
out of the coffers of the local government unit to such person or firm;
5. Purchase real estate or forfeited property in favor of the local government unit
for unpaid taxes or assessment, or legal process at the instance of the said local
government;
6. Be a surety for anyone contracting with the local government unit for which a
surety is required;
7. Possess or use public property of the local government unit for private
purposes; and
b. Practice of profession
“(a) All governors, city and municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in
schools except during session hours: Provided, That sanggunian members who are also members of
the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any
office, agency, or instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local
government is accused of an offense committed in relation to his office.
(3) Collect any fee for their appearance in administrative proceedings involving the local government
unit of which he is an official; and
(4) Use property and personnel of the government except when the sanggunian member concerned
is defending the interest of the government.
(c) Doctors of medicine may practice their profession even during official hours of work only on
occasions of emergency: Provided, That the officials concerned do not derive monetary
compensation therefrom.” (Republic Act No. 7160, Section 90)
3. Governors and mayors are prohibited from practicing their profession other than
their functions as local chief executives.
5. Doctors of medicine may practice their profession even during office hours if it is
an emergency and they do not receive compensation for it.
“No local official or employee in the career civil service shall engage directly or indirectly in any
partisan political activity or take part in any election, initiative, referendum, plebiscite, or recall,
except to vote, nor shall he use his official authority or influence to cause the performance of any
political activity by any person or body. He may, however, express his views on current issues, or
mention the names of certain candidates for public office whom he supports. Elective local officials
may take part in partisan political and electoral activities, but it shall be unlawful for them to solicit
contributions from their subordinates or subject these subordinates to any of the prohibited acts
under the Omnibus Election Code.” (Republic Act No. 7160, Section 93)
3. Career local officials or employees are not allowed to engage in partisan political
activity, except to vote. He may express his opinions on political issues or name
the candidate he supports.
4. Elective local officials may take part in partisan political activities but they
cannot solicit contributions from their subordinates.
“The following persons cannot acquire by purchase, even at a public or judicial auction, either in
person or through the mediation of another:
(1) The guardian, the property of the person or persons who may be under his guardianship;
(2) Agents, the property whose administration or sale may have been entrusted to them, unless the
consent of the principal has been given; !
(3) Executors and administrators, the property of the estate under administration; !
(4) Public officers and employees, the property of the State or of any subdivision thereof, or of any
government-owned or controlled corporation, or institution, the administration of which has been
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intrusted to them; this provision shall apply to judges and government experts who, in any manner
whatsoever, take part in the sale; !
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers
and employees connected with the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the object of any litigation in which
they may take part by virtue of their profession. !
(6) Any others specially disqualified by law.” (Civil Code, Article 1491)
“The prohibitions in the two preceding articles are applicable to sales in legal redemption,
compromises and renunciations.” (Civil Code, Article 1492)
a. The Civil Code of the Philippines prohibits the following persons from purchasing,
even at a public or judicial auction, whether in person or through another:
1. Public officers and employees:
a. Property of the State, local government unit, or government-owned or
controlled corporations, the administration of which has been entrusted to
them, including judges or any government officer who took part in the sale.
c. For the prohibition to operate, the sale or assignment must take place
during the pendency of the litigation involving the property. If it is bought
after the decision became final, the prohibition no longer applies. (Macariola
v. Asuncion, 114 SCRA 77 (1982))
“Outside Interests of the Governor and the Full-time Members of the Board. — The Governor of the
Bangko Sentral and the full-time members of the Board shall limit their professional activities to
those pertaining directly to their positions with the Bangko Sentral. Accordingly, they may not accept
any other employment, whether public or private, remunerated or ad honorem, with the exception of
positions in eleemosynary, civic, cultural or religious organizations or whenever, by designation of
the President, the Governor or the full-time member is tasked to represent the interest of the
Government or other government agencies in matters connected with or affecting the economy or
the financial system of the country.” (Republic Act No. 7653, as amended, Section 20)
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“In addition to the prohibitions found in Republic Act Nos. 3019 and 6713, personnel of the Bangko
Sentral are hereby prohibited from:
(a) being an officer, director, lawyer or agent, employee, consultant or stockholder, directly or
indirectly, of any institution subject to supervision or examination by the Bangko Sentral, except
non-stock savings and loan associations and provident funds organized exclusively for employees of
the Bangko Sentral, and except as otherwise provided in this Act;
(b) directly or indirectly requesting or receiving any gift, present or pecuniary or material benefit for
himself or another, from any institution subject to supervision or examination by the Bangko Sentral; !
(c) revealing in any manner, except under orders of the court, the Congress or any government office
or agency authorized by law, or under such conditions as may be prescribed by the Monetary
Board, information relating to the condition or business of any institution. This prohibition shall not
be held to apply to the giving of information to the Monetary Board or the Governor of the Bangko
Sentral, or to any person authorized by either of them, in writing, to receive such information; and !
(d) borrowing from any institution subject to supervision or examination by the Bangko Sentral shall
be prohibited unless said borrowings are adequately secured, fully disclosed to the Monetary Board,
and shall be subject to such further rules and regulations as the Monetary Board may prescribe:
Provided, however, That personnel of the supervising and examining departments are prohibited
from borrowing from a bank under their supervision or examination.” (Republic Act No. 7653,
Section 27)
b. The New Central Bank Act provides that the Governor of the Bangko Sentral ng
Pilipinas and the full-time members of the Monetary Board shall not accept any
other employment (public or private), remuneration or ad honorem, except:
4. Request or receive any gift, present, or pecuniary benefit for himself or for
another from any institution subject to Bangko Sentral ng Pilipinas supervision
or examination;
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6. Borrow from institutions subject to Bangko Sentral ng Pilipinas supervision,
except of the loan is adequately secured and fully disclosed to the Monetary
Board. Personnel in the examining or supervising departments are absolutely
prohibited from borrowing from banks under their supervision.
“x x x any officer or employee of the Bureau of Internal Revenue who divulges to any person or
makes known in any other manner than may be provided by law information regarding the business,
income, or estate of any taxpayer, the secrets, operation, style or work, or apparatus of any
manufacturer or producer, or confidential information regarding the business of any taxpayer,
knowledge of which was acquired by him in the discharge of his official duties, shall upon conviction
for each act or omission, be fined in a sum of not less than five thousand pesos but not more than
ten thousand pesos, or imprisoned for a term of not less than six months but not more than five
years or both.” (Presidential Decree No. 1158, Section 269)
“Any internal revenue officer who is or shall become interested directly or indirectly, in the
manufacture, sale, or importation of any article subject to tax under Title IV (now VI) of this Code or
in the manufacture or repair or sale of any die for the printing, or making of stamps, or labels shall,
upon conviction for each act or omission, be fined in a sum of not less than five thousand pesos but
not more than ten thousand pesos, or imprisoned for a term of not less than two years and one day
but not more than four years, or both.” (Presidential Decree No. 1158, Section 270)
a. The National Internal Revenue Code imposes the penalty of fine, imprisonment, or
both, upon conviction on:
3. Any Bureau of Internal Revenue officer or employee who divulges to any person
or makes known in any other manner than may be provided by law information
regarding the following which he acquired in the discharge of his official duties:
b. Manufacture or repair or sale of any dye for the printing or making of stamp
or labels.
6. Prohibited acts and transactions under the Anti-Graft and Corrupt Practices Act
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a. The following constitute corrupt practices by public officers under Republic Act No.
3019:
“Persuading, inducing or influencing another public officer to perform an act constituting a violation
of rules and regulations duly promulgated by competent authority or an offense in connection with
the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit
such violation or offense.” (Republic Act No. 3019, Section 3 (a)
Office of Court Administrator (OCA) vs. Nolasco, A.M. No. P-06-2148, March 4, 2009)
The act of Judge Misajon in inducing or persuading Nolasco to violate duly promulgated rules on the
administration of court funds may well constitute a violation of Section 3 (a) of RA 3019.
Villa vs. Sandiganbayan, et. al., (G.R. No. 87186 April 24, 1992, 208 SCRA 283 (1992])
The acts and omissions of Jimenez and Sucalit violated paragraph (a) of Section 3 of RA 3019 in
relation to the Unnumbered Presidential Memorandum. They were persuaded, induced or
influenced, and persuaded, induced or influenced each other, to award the purchase of electrical
items to an entity which was not even a supplier of electrical items in disregard of the Presidential
Memorandum directing the procurement of supplies by government offices should be from
reputable suppliers.
“(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for
himself or for any other person, in connection with any contract or transaction between the
Government and any other part, wherein the public officer in his official capacity has to intervene
under the law.” (Republic Act No. 3019, Section 3 (b))
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“(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to Section thirteen of this Act.”
(Republic Act No. 3019, Section 3 (c))
Section 3 (b) of RA 3019 penalizes three distinct acts - (1) demanding or requesting; (2) receiving; (3)
demanding, requesting and receiving - any gift, share, percentage, or benefit for oneself of for any
other person, in connection with any contract or transaction between the government and any other
party, wherein a public officer in an official capacity has to intervene under the law. These modes of
committing the offense are distinct and different from each other. Proof of the existence of any of
them suffices to warrant conviction. The lack of demand is immaterial. After all, Section 3 (b) of RA
3019 uses the word or between requesting and receiving.
In a prosecution under the foregoing provision of the Anti-Graft Law the value of the gift, money or
present, etc. is immaterial nor is a determinative of the guilt or innocence of the accused or the
penalty to be imposed. What is penalized is the receipt of any gift, present, share, percentage, or
benefit by a public officer in connection with a contract or transaction with the Government, wherein
the public officer has to intervene in his official capacity.
To be convicted of violation of Section 3(b) of RA 3019, as amended, the prosecution has the burden
of proving the following elements: (1) the offender is a public officer; (2) who requested or received a
gift, a present, a share, a percentage, or a benefit; (3) on behalf of the offender or any other person;
(4) in connection with a contract or transaction with the government; (5) in which the public officer, in
any official capacity under the law, has the right to intervene.
It is very clear from Section 3(b) that the requesting or receiving of any gift, present, share,
percentage, or benefit must be in connection with "a contract or transaction" wherein the public
officer in his official capacity under the law. To establish the existence of the fourth element, the
relation of the fact of requesting and/or receiving, and that of the transaction involved must be
clearly shown.
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Alberto!C.!Agra,!Ateneo!Law!School
Mendoza-Ong vs. Sandiganyan, (G.R. NO. 146368-69, Oct. 23, 2003)
Section 3 (c) of RA 3019 applies regardless of whether the gift's value is manifestly excessive or not,
and regardless of the occasion. What is important here is whether the gift is received or to be given
by the public officer. The value of the gift is not mentioned at all as an essential element of the
offense charged under Section (c) and there appears no need to require the prosecution to specify
such value in order to comply with the requirements of showing a prima facie case.
“(d) Accepting or having any member of his family accept employment in a private enterprise which
has pending official business with him during the pendency thereof or within one year after its
termination.” (Republic Act No. 3019, Section 3 (d)
Section 4 of RA 3019 states that the term "family relation" includes the spouse, or relatives by
consanguinity or affinity in the third civil degree. Hence, the word "family", as used under Sec. 3(d)
of the same law, is not limited to the spouse or children under 18 years of age of the accused but
may also include his brother-in-law.
4. Causing any undue injury to any party including the government; or giving any
private party unwarranted benefit or advantage in the discharge of his official
functions through manifest partiality, evident bad faith or gross inexcusable
negligence; (Ponce de Leon v. Sandiganbayan, 186 SCRA 745 (1990); Mejia, Jr.
v. Sandiganbayan, 218 SCRA 219 (1992); Prieto v. Cariaga, 242 SCRA 315
(1995))
“(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.” (Republic Act No. 3019, Section 3 (e))
a. An accused can be found guilty under both modes in violating Section 3 (e)
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Alberto!C.!Agra,!Ateneo!Law!School
Victoriano vs. People, (G.R. Nos.171322-24, November 30, 2006)
Herein, the accused was found to have caused undue injury and give unwarranted benefits in
violation of Section 3(e) of RA 3019. Hence it is possible to violate said provision through bot modes
provided therein.
Fonacier, et. al. vs. Sandiganbayan, et. al, (238 SCRA 655 (1994])
There are three (3) distinct modes by which Sec. 3(e) of RA 3019 may be committed. First is
partiality, which is synonymous with "bias" which "excites a disposition to see and report matters as
they are wished for rather than as they are." Second is bad faith, which does not simply connote
bad judgment or negligence but imputes a dishonest purpose or some moral obliquity and
conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it
partakes of the nature of fraud. Third is a gross negligence, which is negligence characterized by
the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as
other persons may be affected. It is the omission of that care which even inattentive and
thoughtless men never fail to take on their own property. The use of the three modes in the same
information implies that offense may have been committed through any of the modes provided by
the law but not that the indictment charges three (3) distinct offenses.
"Undue injury" means "actual damage." Undue has been defined as "more than necessary, not
proper, or illegal;" and injury as "any wrong or damage done to another, either in his person, rights,
reputation or property; that is, the invasion of any legally protected interest of another." Actual
damage, in the context of these definitions, is akin to that in civil law. However, unlike in actions for
torts, undue injury cannot be presumed but must be proven as one of the elements of the crime.
Arias vs. Sandiganbayan, (G.R. No. 81563, December 19, 1989, 180 SCRA 309)
In order for a department head to be liable for conspiracy, grounds other than his mere signature or
approval appearing on a voucher must be established. All heads of offices have to rely to a
reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase
supplies, or enter into negotiations. Hence, an examination in detail of the voucher by the head of
office is not required unless there is an additional reason to do so.
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Alberto!C.!Agra,!Ateneo!Law!School
Magsuci vs. Sandiganbayan, (G.R. No. 101545, January 3, 1995, 240 SCRA 13)
For conspiracy to exist, it is essential that there must be a conscious design to commit an offense.
But a person may be so held liable as a co-principal if he, by an act of reckless imprudence, has
brought about the commission of crime, without which it have been accomplished. When, however,
that infraction consists in the reliance in good faith, albeit misplaced, by a head of office on a
subordinate upon whom the primary responsibility rests, a conspiracy charge and conviction shall
not be sustained unless such is clearly established.
“(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some pecuniary or material benefit or advantage, or for the
purpose of favoring his own interest or giving undue advantage in favor of or discriminating against
any other interested party.” (Republic Act No. 3019, Section 3 (f))
The elements of Sec. 3(f) of RA 3019 are the following: a) The offender is a public officer; b) The said
officer has neglected or has refused to act without sufficient justification after due demand or
request has been made on him; c) The reasonable time has elapsed from such demand or request
without the public officer having acted on the matter pending before him; and d) Such failure to so
act is "for the purpose of obtaining directly or indirectly, from any person interested in the matter
some pecuniary or material benefit or advantage in favor of an interested party, or discriminating
against another.
To warrant conviction for a violation of Section 3(f) of RA 3019, it must be established that the
dereliction was for the purpose of (a) obtaining, directly or indirectly, from any person interested in
the matter some pecuniary or material benefit or advantage in favor of an interested party or (b)
discriminating against another interested party. It is not enough that an advantage in favor of one
party, as against another, would result from one’s neglect or refusal.
“(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.”
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Alberto!C.!Agra,!Ateneo!Law!School
(Republic Act No. 3019, Section 3 (g))
Sec. 3 (g) of RA 3019, particularly the phrase "manifestly and grossly disadvantageous to the
government", is not vague. This is because the assailed provision answers the basic query "What is
the violation?" Anything else is evidentiary matters which the law itself cannot possible disclose in
view of the uniqueness of every case. Also, the law is intended to be flexible in order to allow the
judge certain latitude in determining if the disadvantage to the government occasioned by the act of
a public officer in entering into a particular contract is, indeed, gross and manifest.
Note that the act prohibited under Sec. 3(g) is in the nature of a malum prohibitum thus, it is the
commission of the offence, not the character or effect thereof, that determines whether the provision
has been violated or not.
One of the reasons why herein accused was not convicted under Sec. 3(g) of RA 3019 was because
it was not shown that he was present when the subject agreement was authorized and approved.
With respect to the element of being "manifestly and grossly disadvantageous to the government,"
the amount per se is insufficient to prove this element. There must be a standard by which the same
is weighed and measured. Also, other factors must be taken into consideration, such as the amount
in contracts covering properties within the vicinity of the subject premises.
Marquez vs. Sandiganbayan, et. al. G.R. Nos. 182020-24 and Caunan vs. People, et. al., (G.R.
Nos. 181999 & 1812001-4, September 2, 2009)
The elements of Sec. 3(g) of RA 3019 are the following: (1) that the accused is a public officer; (2)
that he entered into a contract or transaction on behalf of the government; and (3) that such contract
or transaction is grossly and manifestly disadvantageous to the government.
The fact of overpricing is embedded in the third criminal element of Section 3(g) of R.A. No. 3019. If
the evidence used to prove this element is the COA's finding of overpricing, the items on which the
finding was based on must be identical to the alleged overpriced item.
(h) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction
in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited
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by the Constitution or by any law from having any interest. (Republic Act No. 3019, Section 3 (h))
Respondent Judge cannot be held liable under the aforestated paragraph because there is no
showing that respondent participated or intervened in his official capacity in the business or
transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at the bar, the
business of the corporation in which respondent participated has obviously no relation or connection
with his judicial office. The business of said corporation is not that kind where respondent intervenes
or takes part in his capacity as Judge of the Court of First Instance. As was held in one case
intervolving the application of Article 216 of the Revised Penal Code which has a similar prohibition
on public officers against directly or indirectly becoming interested in any contract or business in
which it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this
crime; it is necessary that by reason of his office, he has to intervene in said contracts or
transactions; and, hence, the official who intervenes in contracts or transactions which have no
relation to his office cannot commit this crime." (People vs. Meneses, C.A. 40 O.G. 11th Supp. 164,
cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).
“(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any
transaction or act requiring the approval of a board, panel or group of which he is a member, and
which exercises discretion in such approval, even if he votes against the same or does not participate
in the action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those public officers responsible for the approval
of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to
which they belong.” (Republic Act No. 3019, Section 3(i))
(j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not
qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere
representative or dummy of one who is not so qualified or entitled. (Republic Act No. 3019, Section
3(j))
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(k) Divulging valuable information of a confidential character, acquired by his office or by him on
account of his official position to unauthorized persons, or releasing such information in advance of its
authorized release date. (Republic Act No. 3019, Section 3(k))
d. The term “office” applies to any office which the public office is holding during the
pendency of the criminal case. Thus, if X was charged under Republic Act No. 3019
for acts committed when he was still mayor at the time when he was already
governor will still be suspended from that office. (Deloso v. Sandiganbayan, 173
SCRA 409 (1989); Bayot v. Sandiganbayan, 128 SCRA 383 (1984))
e. Republic Act No. 3019 applies to both public officers and private persons
Section 1 of the law makes clear the legislative intention to make application of the statute extend
both to public and private persons.
The policy of the Philippine government, in line with the principle that a public office is a public trust
is to repress certain acts of public officers and private persons alike which constitute graft or
corruption practices or which may lead thereto.
f. One may be charged with violating Republic Act No. 3019 in addition to a felony
under the Revised Penal Code for the same delictual act, either concurrently or
subsequently. In this case, there will be no double jeopardy.
Ramiscal vs. Sandiganbayan, et. al., (G.R. Nos. 169727-28, August 18, 2006)
If in a deed of sale, the real property covered is underpriced by a public officer and his co-
conspirators to conceal the correct gains and documentary stamp taxes due on the sale causing
injury to the government, the offenders thereby commit two crimes- (a) falsification of public
document defined in paragraph 4, Article 171 of the Revised Penal Code; and (b) violation of Section
3 (e) of RA 3019, a special penal law. The offender incurs civil liability to the government as the
offended party for violation of Section 3 (e) of RA 3019, but not for falsification of public document
under paragraph 4, Article 171 of the Revised Penal Code.
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Alberto!C.!Agra,!Ateneo!Law!School
Merencillo vs. People, (G.R. Nos. 142369-70, April 13, 2007)
The violation of Section 3 (b) of RA 3019 is neither identical nor necessarily inclusive of direct
bribery. While they have common elements, not all the essential elements of one offense are
included among or form part of those enumerated in the other. The mere request or demand of a
gift, present, share, percentage or benefit is enough to constitute a violation of Section 3 (b) of RA
3019, acceptance of a promise or offer or receipt of a gift or present is required in direct bribery.
Although the two charges stemmed from the same transaction, the same act gave rise to two
separate and distinct offenses. No double jeopardy attached since there was a variance between
the element of the offense charged. The constitutional protection against double jeopardy
proceeds from a second prosecution for the same offense, not for a different one.
“Prohibition on private individuals. (a) It shall be unlawful for any person having family or close
personal relation with any public official to capitalize or exploit or take advantage of such family or
close personal relation by directly or indirectly requesting or receiving any present, gift or material or
pecuniary advantage from any other person having some business, transaction, application, request
or contract with the government, in which such public official has to intervene. Family relation shall
include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close
personal relation" shall include close personal friendship, social and fraternal connections, and
professional employment all giving rise to intimacy which assures free access to such public officer.”
(Republic Act No. 3019, Section 4(a))
The approach by respondent to President Garcia could not but be for any other purpose but to
influence him through personal connections to make an exception in petitioner's case. Clearly, an
agreement to this effect should be declared as against public policy. Any agreement entered into
because of the actual or supposed influence which the party has, engaging him to influence
administrative or executive officers in the discharge of their duties, which contemplates the use of
personal influence and personal solicitation rather than any appeal to the judgment of the officer on
the merits of the object sought, is contrary to public policy.
x x x
Consequently, it is our considered opinion that the agreement between respondent Lim and
petitioner is null and void, for being against public policy, and, therefore, unenforceable before a
Court of justice. It was to give statutory imprimatur to such public policy that Republic Act No. 3019,
the Anti Graft and Corrupt Practices Act, was enacted on August 17, 1960.
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“(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any
of the offenses defined in Section 3 hereof.” (Republic Act No. 3019, Section 4 (b))
Atty. Benjamin Pineda could also be held liable under Section 4(b) of R.A. No. 3019 (Anti Graft and
Corrupt Practices Act) which makes it unlawful for any person knowingly to induce or cause any
public official to commit any of the offenses defined in Section 3 of said act. Section 3 enumerates
the corrupt practices which public officers may be prosecuted for. Atty. Pineda knowingly induces or
caused Labor Arbiter Valenzuela to issue the questioned orders without or beyond the latter's
authority and to which orders the former was not entitle, considering that he was not the sole and
proper representative.
“Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by
consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-
President of the Philippines, the President of the Senate, or the Speaker of the House of
Representatives, to intervene, directly or indirectly, in any business, transaction, contract or
application with the Government: Provided, That this section shall not apply to any person who, prior
to the assumption of office of any of the above officials to whom he is related, has been already
dealing with the Government along the same line of business, nor to any transaction, contract or
application already existing or pending at the time of such assumption of public office, nor to any
application filed by him the approval of which is not discretionary on the part of the official or
officials concerned but depends upon compliance with requisites provided by law, or rules or
regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the
exercise of a profession.” (Republic Act No. 3019, Section 5)
By petitioners's own admission, at the time of the execution of the Management Contract, petitioner
E. Razon, Inc. x x x was controlled by Alfredo "Bejo" Romualdez, brother-in-law of deposed
President Marcos. Under Section 5 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019)
Romualdez, by reason of his relationship with the then President of the Philippines, was prohibited
from intervening, directly or indirectly, in any transaction or business with the government. Thus the
Management Contact, entered into by E. Razon, Inc., ostensibly owned by petitioner Enrique Razon,
but in fact controlled by Alfredo Romualdez as 60% equity owner thereof, is null and void and of no
effect, being one expressly prohibited by law (par. [7], Art. 1409, Civil Code of the Philippines)
The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019, as follows:
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1. The offender is a spouse or any relative by consanguinity or affinity within the third civil degree
of the President of the Philippines, the Vice-President of the Philippines, the President of the
Senate, or the Speaker of the House of Representatives; and
x x x
As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of the
Solicitor General that the word can easily be understood through simple statutory construction. x x x
The term intervene should therefore be understood in its ordinary acceptation, which is to "to come
between." Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019-any
person who intervenes in any manner in any business, transaction, contract or application with the
government. As we have explained, it is impossible for the law to provide in advance details of how
such acts of intervention could be performed. But the courts may pass upon those details once trial
is concluded.
j. Section 7 – Filing of Statements of Assets and Liabilities and Net Worth (SALN)
“Statement of assets and liabilities. Every public officer, within thirty days after the approval of this
Act or after assuming office, and within the month of January of every other year thereafter, as well
as upon the expiration of his term of office, or upon his resignation or separation from office, shall
prepare and file with the office of the corresponding Department Head, or in the case of a Head of
Department or chief of an independent office, with the Office of the President, or in the case of
members of the Congress and the officials and employees thereof, with the Office of the Secretary
of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a
statement of the amounts and sources of his income, the amounts of his personal and family
expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That
public officers assuming office less than two months before the end of the calendar year, may file
their statements in the following months of January.” (Republic Act No. 3019, Section 7)
Ombudsman vs. Valeroso, (G.R. No. 167828, 2 April 2007, 520 SCRA 140)
Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be suppressed and
avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of
preventing said evil and is aimed particularly at curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honestly in the public service. "Unexplained" matter
normally results from "nondisclosure" or concealment of vital facts. SALN, which all public officials
and employees are mandated to file, are the means to achieve the policy of accountability of all
public officers and employees in the government. By the SALN, the public are able to monitor
movement in the fortune of a public official; it is a valid check and balance mechanism to verify
undisclosed properties and wealth.
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Alberto!C.!Agra,!Ateneo!Law!School
Carabeo vs. Court of Appeals, et. al., (G.R. No. 178000 and 178003, December 4, 2009)
Carabeo claims that the complaint against him involves a violation of Section 10, RA 6713, or the
Code of Conduct and Ethical Standards for Public Officials and Employees, which entitles him to be
informed beforehand of his omission and to take the necessary corrective action.
x x x
While Section 10 of RA 6713 indeed allows for corrective measures, Carabeo is charges not only
with violation of RA 6713, but also with violation of Revised Penal Code, RA 1379, and RA 3019, as
amended, specifically Sections 7 and 8 thereof[.]
x x x
Significantly, Carabeo failed to show any requirement under RA 3019 that prior notice of the non-
completion of the SALN and its correction precede the filing of charges for violation of its provisions.
Neither are these measures needed for the charges of dishonestly and grave misconduct, which
Carabeo presently faces.
For gross misconduct to exist, there must be reliable evidence showing that the acts complained of
were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-
known legal rules.
x x x
Clear from the foregoing legal definitions of gross misconduct and dishonestly is that intention is an
important element in both. Petitioner's candid admission of his shortcomings in properly and
completely filing out his SALN, his endeavor to clarify the entries therein and provide all other
necessary information, and his submission of supporting documents as to the acquisition of the real
properties in his and his wife's names, negate any intention on his part to conceal his properties.
Furthermore, in view of this Court's findings that these properties were lawfully acquired, there is
simply no justification for petitioner to hide them. Missing the essential element of the intent to
commit a wrong, this Court does not declare petitioner guilty of gross misconduct and dishonestly.
Rabe vs. Flores, A.M. OCA IPI No. 97-1247, (272 SCA 415 (1997])
The Office of the Court Administrator also found that she had been receiving rental payments from
one Rodolfo Luay for the use of the market stall. That respondent had a stall in the market was
undoubtedly a business interest which should have been reported in her Sworn Statement of Assets
and Liabilities. Her failure to do so exposes her to administrative sanction.
x x x
In the present case, the failure of respondent to disclose her business interest which she herself
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admitted is inexcusable and is a clear violation of Republic Act No. 6713.
Note: Respondent was removed from office for not for non-disclosure of her business interest, she
was removed from office for dishonesty in receiving salaries both from the municipal government and
the court.
“Dismissal due to unexplained wealth. If in accordance with the provisions of Republic Act
Numbered One thousand three hundred seventy-nine, a public official has been found to have
acquired during his incumbency, whether in his name or in the name of other persons, an amount of
property and/or money manifestly out of proportion to his salary and to his other lawful income, that
fact shall be a ground for dismissal or removal. Properties in the name of the spouse and unmarried
children of such public official may be taken into consideration, when their acquisition through
legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into consideration in
the enforcement of this section, notwithstanding any provision of law to the contrary.” (Republic Act
No. 3019, Section 8)
The only conclusion possible is that Section 8 of the Anti-Graft Law is intended to amend Section 2
of Republic Act No. 1405 by providing additional exception to the rule against the disclosure of bank
deposits.
x x x
Cases of unexplained wealth are similar to cases of bribery or dereliction of duty and no reason is
seen why these two cases cannot be excepted from the rule making bank deposits confidential. The
policy as to one cannot be different from the policy as to the other. This policy express the motion
that a public office is a public trust and any person who enters upon its discharge does so with the
full knowledge that his life, so far as relevant to his duty, is open to public scrutiny.
The inquiry into illegally acquired property-or property NOT "legitimately acquired"- extends to cases
where such property is concealed by being held by or recorded in the name of other persons. This
proposition is made clear by R.A. No. 3019 which quite categorically states that the term,
"legitimately acquired property of a public officer or employee shall not include x x x property
unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the
name of, or held by, respondent's spouse, ascendants, descendants, relatives or any other
persons."
To sustain the petitioner's theory, and restrict the inquiry only to property held by or in the name of
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the government official or employee, or his spouse and unmarried children is unwarranted in the light
of the provisions of the statutes in question, and would make available to persons in government
who illegally acquire property an easy and fool-proof means of evading investigation and
prosecution; all they would have to do would be to simply place the property in the possession or
name of persons other than their spouse and unmarries children. This is an absurdity that we will not
ascribe to the lawmakers.
“Termination of office. No public officer shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense under this Act or
under the provisions of the Revised Penal Code on bribery.” (Republic Act No. 3019, Section 12)
Estrada vs. Desierto, (G.R. Nos. 146710-15, March 2, 2001 and G.R. No. 146738, March 2, 2001)
Petitioner contends that the impeachment proceeding is an administrative investigation that, under
Section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it cannot be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.
“Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a
valid information under this Act or under the provisions of the Revised Penal Code on bribery is
pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in
the meantime administrative proceedings have been filed against him.” (Republic Act No. 3019,
Section 13)
The duration of preventive suspension is thus coeval with the period prescribed for deciding
administrative disciplinary cases. If the case is decided before ninety days, then the suspension will
last less than ninety days, but if the case is not decided within ninety days, then the preventive
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suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under
Republic Act No. 3019, preventive suspension will last for less than ninety days only if the case is
decided within that period; otherwise, it will continue for ninety days.
The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the
time it takes the court to decide the case but not on account of any discretion lodged in the court,
taking into account the probability that the accused may use his office to hamper his prosecution.
Indeed, were the Sandiganbayan given the discretion to impose a shorter period of suspension, say,
80, 70, or 60 days, as petitioner asserts, it would lie in its power not to suspend the accused at all.
That, of course, would be contrary to the command of Sec. 13 of Republic Act No. 3019.
En passant, if the administrative case files against petitioner has been terminated also in his favor,
he may invoke Section 13 of R.A. No. 3019 which provides:
SEC. 13. Suspension and loss of benefits. - Any incumbent public officer against whom any criminal
prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal
Code or for any offense involving fraud upon government or public funds or property whether as a
simple or as a complex offense and in whatever stage of execution ann mode of participation, is
pending in court shall be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension, unless
in the meantime administrative proceedings have ben files against him.
In the event that such convicted officer, who may have already been separated from the service ,
has already received such benefits he shall be liable to restitute te same to the government.
(Emphasis and underscoring supplied)
It has been long settle, however, and it bears reiteration that Section 13 of R.A. No. 3019, as
amended, unequivocally provides that the accused public official "shall be suspended from office"
while the criminal prosecution is pending in court. The rule on the matter is specific and categorical,
leaving no room for interpretation. There are no ifs and buts about it. The court has neither the
discretion nor duty to determine whether preventive suspension is required to prevent the accused
from using his office to intimidate witnesses or frustrate his prosecution or continue committing
malfeasance in office. Bolastig v. Sandiganbayan so teaches.
Dela Cruz, et al., vs. Sandiganbayan, et. al., (G.R. No. 161929, December 8, 2009)
The preventive suspension of the accused under Section 13 of RA No. 3019 is mandatory upon a
finding that the information is valid.
Section 13. Suspension and loss of benefits - Any public officer against whom any criminal
prosecution under a valid information under this act or under the provisions of the Revised Penal
Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final
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judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he
shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during
suspension, unless in the meantime administrative proceedings have been filed against him.
Pursuant to this provision, it becomes mandatory for the court to immediately issue the suspension
order upon a proper determination of the validity of the information. The court possesses no
discretion to determine whether a preventive suspension is necessary to forestall the possibly that
the accused may use his office to intimidate witnesses, or frustrate his prosecution, or continue
committing malfeasance. The presumption is that unless the accused is suspended, he may
frustrate his prosecution or commit further acts of malfeasance or do both.
7. Prohibited acts and transactions under the Code of Conduct and Ethical Standards
a. Definitions under the Code of Conduct and Ethical Standards (Republic Act No.
6713):
3. “Public officials” includes:
a. Elective and appointive officials and employees including those in
government-owned or controlled corporations and their subsidiaries;
b. Permanent or temporary;
c. Career or non-career service;
d. Including military and police personnel
e. Whether or not receiving compensation
5. “Receiving any gift” includes the act of accepting, directly or indirectly, a gift
from a person other than a member of his family or relative as defined in the Act,
even on the occasion of a family celebration or national festivity like Christmas,
of the value of the gift is neither normal nor insignificant, or the gift is given in
anticipation of, or in exchange for, a favor.
b. Under Republic Act No. 6713, the following constitute prohibited acts and
transactions and are declared unlawful:
3. Financial and material interest
a. Public officials and employees shall not, directly or indirectly, have any
financial or material interest in any transaction requiring the approval of their
office.
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agency regulated, supervised or licensed by their office, unless
expressly allowed by law;
8. Divestment
a. It refers to the transfer of title or disposal of interest in property by voluntarily,
completely, and actually depriving or dispossessing oneself of his right or title to it in
favor of a person or persons other than his spouse and relative. The term “relative”
refers to any and all persons related to a public official or employee within the 4th
civil degree of consanguinity or affinity, including bilas, inso, and balae.
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b. Whenever a conflict of interest arises, a public official or employee shall resign from
his position in any private business enterprise within 30 days from his assumption of
office and / or divest himself of his shareholdings or interest within 60 days from
such assumption. Divestment shall be mandatory if the conditions for conflict of
interest still concur even if he has resigned from his position in any private business
enterprise.
Domingo vs. Ombudsman, et. al., (G.R. No. 176127, January 30, 2009)
The charge of violation of Section 4(b) of RA No. 6713 deserves further comment. The provision
commands that "public officials and employees shall perform and discharge their duties with the
highest degree of excellence, professionalism, intelligence and skill." Said provision merely
enunciates "professionalism as an ideal norm of conduct to be observed by public servants, in
addition to commitment to public interest, justness and sincerity, political neutrality, responsiveness
to the public, nationalism and patriotism, commitment to democracy and simple living. Following
this perspective, Rule V of the implementing Rules of R.A. No. 6713 adopted by the Civil Service
Commission mandates the grant of incentives and rewards to officials and employees who
demonstrate exemplary service and conduct based on their observance of the norms of conduct laid
down in Section 4. In other words, under the mandated incentives and rewards system, officials and
employees comply with the high standard set by law would be rewarded. Those who fail to do so
cannot expect the same favorable treatment. However, the Implementing Rules does not provide
that they will have to be sanctioned for failure to observe these norms of conduct. Indeed, Rule X of
the Implementing Rules affirms as grounds for administrative disciplinary action only acts "declared
unlawful or prohibited by the Code." Rule X specifically mentions at least twenty=three (23) acts or
omissions as grounds for administrative disciplinary action. Failure to abide by the norms of
conduct under Section 4(b) or R.A. No. 6713 is not one of them.
Furthermore, there is obviously a denial of due process in this case. The due process requirement
mandates that every accused or respondent be apprised of the nature and cause of the charge
against him, and the evidence in support thereof be shown or made available to him so that he can
meet the charge with traversing or exculpatory evidence. A cursory reading of the complaint-
affidavit does not reveal that petitioner was charged with violation of Section 4(b) of R.A. No. 6713.
Likewise, in the OMB's Evaluation Report, the charges indicated were for malversation, falsification,
dishonesty, and grave misconduct.
Carabeo vs. Court of Appeals, et. al, (G.R. No. 178003, December 4, 2009)
Carabeo claims that the complaint against him involves violation of Section 10, RA 6713, or the
Code of Conduct and Ethical Standards for Public Officials and Employees, which entitles him to be
informed beforehand of his omission and to take the necessary corrective action.
Section 10. Review of Compliance Procedure. - (a) The designated Committee of both Houses of
Congress shall establish procedures for the review of statements to determine whether said
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statements which have been submitted on time, are complete, and are in proper form. In the event a
determination is made that a statement is not filed, the appropriate Committee shall so inform the
reporting individual and direct him to take the necessary corrective action.
x x x
While Section 10 of RA 6713 indeed allows for corrective measures, Caraveo is charged not only
with violation of RA 6713, but also with violation of the Revised Penal Code, R.A. 1379, and RA
3019, as amended, specifically Section 7 and 8 thereof, which read:
Sec. 7. Statement of Assets and Liabilities. - Every public officer, within thirty days after assuming
office, and thereafter, on or before the fifteenth day of April following the close of every calendar
year, as well as upon the expiration of his term of office, or upon his resignation or separation from
office, shall prepare and file with the office of corresponding Department Head, or in the case of a
Head Department or chief of an independent office, with the Office of the President, a true, detailed
and sworn statement of the amounts and sources of his income, the amounts of his personal and
family expenses and the amount of income taxes paid for the nest preceding calendar year:
Provided, That public officers assuming office less than two months before the end of the calendar
year, may file their first statement on or before the fifteenth day of April following the close of said
calendar year.
Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth. - If in accordance with
the provisions of Republic Act Numbered One Thousand Three Hundred Seventy-Nine, a public
official has been found to have acquired during his incumbency, whether in his name or in the name
of other persons, an amount of property and/or money manifestly out of proportion to his salary and
to his other lawful income, that fact shall be ground for dismissal or removal. Properties in the name
of the souse and dependents of such public official may be taken into consideration, when their
acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of
or manifestly excessive expenditures incurred by the public official, his spouse or any of their
dependents including but not limited to activities in any club or association or any ostentatious
display of wealth including frequent travel abroad on a non-official character by any public official
when such activities entail expenses evidently out of proportion to legitimate income, shall likewise
be taken into consideration in the enforcement of this Section, notwithstanding any provision of law
to the contrary. The circumstances hereinabove mentioned shall constitute valid ground for the
administrative suspension of the public official concerned for an indefinite period until the
investigation of the unexplained wealth is completed.
In Ombudsman v. Valeroso, the Court explained fully the significance of these provisions, to wit:
Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be suppressed and
avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of
preventing said evil and is aimed particularly at curtailing and minimizing, the opportunity for official
corruption and maintaining a standard of honesty in the public service. "Unexplained" matter
normally results from "non-disclosure" or concealment of vital facts. SALN, which all public officials
and employees are mandated to file, are the means to achieve the policy of accountability of all
public officers and employees in the government. By the SALN, the public are able to monitor
movement in the fortune of a public official; it is a valid check and balance mechanism to verify
undisclosed properties and wealth.
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Petitioner is charged with gross misconduct and dishonesty for failing to comply with Section 7 of
the Anti-Graft and Corrupt Practices, and Section 8 of the Code of Conduct and Ethical Standards
for Public Officials and Employees, requiring the submission of a statement of assets and liabilities
by a public officer or employee.
As for gross misconduct, the adjective is "gross" or serious, important, weighty, momentous and not
trifling; while the noun is "misconduct," defined as a transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross negligence by the public officer. The
word "misconduct" implies a wrongful intention and not a mere error of judgment. For gross
misconduct to exist, there must be reliable evidence showing that the acts complained of were
corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known
legal rules.
And as for dishonesty, it is committed by intentionally making a false statement in any material fact,
or practicing or attempting to practice any deception or fraud in securing his examination,
registration, appointment or promotion. Dishonesty is understood to imply a disposition to lie,
cheat, deceive, or defraud; untrustworthiness; lack of integrity.
Clear from the foregoing legal definitions of gross misconduct and dishonesty is that intention is an
important element in both. Petitioner's candid admission of his shortcomings in properly and
completely filling out his SALN, his endeavor to clarify the entries therein and provide all other
necessary information, and his submission of supporting documents as to the acquisition of the real
properties in his and his wife's names, negate any intention on his part to conceal his properties.
Furthermore, in view of the Court's findings that these properties were lawfully acquired; there is
simply no justification for petitioner to hide them. Missing the essential element of intent to commit
a wrong, the Court cannot declare petitioner guilty of gross misconduct and dishonesty.
Neither can petitioner's failure to answer the question, "Do you have any business interest and other
financial connections including those of your spouse and unmarried children living in your house
hold?" be tantamount to gross misconduct or dishonesty. On the front page of petitioner's 2002
SALN, it is already clearly stated that his wife is a businesswoman, and it can be logically deducted
that she had business interests. Such a statement of his wife's occupation would be inconsistent
with the intention to conceal his and his wife's business interests. That petitioner and/or his wife
had business interests is thus readily apparent on the face of the SALN; it is just that the missing
particulars may be subject of an inquiry or investigation.
An act done in good faith, which constitutes only an error of judgment and for no ulterior motives
and/or purposes, does not qualify as gross misconduct, and is merely simple negligence. Thus, at
most, petitioner is guilty of negligence for having failed to ascertain that his SALN was accomplished
properly, accurately, and in more detail.
Rabe vs. Flores, (A.M. OCA IPI No. 97-1247, 272 SCRA 415 (1997])
Section 8 of Republic Act No. 6713 provides that it is the "obligation" of an employee to submit a
sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and
financial and business interests. Section 11 of the same law prescribes the criminal and
administrative penalty for violation of any provision thereof. Paragraph (b) of Section 11 provides
that "(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause
for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted
against him."
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In the present case, the failure of respondent to disclose her business interest which she herself
admitted and is inexcusable and is a clear violation of Republic Act No. 6713.
In her explanation, respondent maintains the position that she has no business interest, implicitly
contending that there is nothing to divulge or divest from. As discussed above, respondent had a
business interest. We do not find her administratively liable, however, for failure to divest herself of
the said interest. The requirement for public officers, in general, to divest themselves of business
interests upon assumption of a public office is prompted by the need to avoid conflict of interests.
In the absence of any showing that a business interest will result in a conflict of interest, divestment
of the same is unnecessary. In the present case, it seems a bit far-fetched to imagine that there is a
conflict of interest because an Interpreter III of the Regional Trial Court has a stall in the market. A
court, generally, is not engaged in the regulation of a public market, nor does it concern itself with
the activities thereof. While respondent may not be compelled to divest herself of her business
interest, she had the legal obligation of divulging it.
b. Acts of a public officer are protected by the presumption of good faith. The
protection afforded by the doctrine generally applies only to activities within
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the scope of office that are in good faith and are not reckless, malicious, or
corrupt. Even mistakes are not actionable as long as it is not shown that
they were motivated by malice or gross negligence amounting to bad faith.
(Philippine Racing Club, Inc. v. Bonifacio, 109 Phil 233 (1960); Lumayana v.
Commission on Audit, 601 SCRA 163 (2009))
c. A public officer may secure the services of private counsel in an action filed
against him in his official capacity if the damages sought in the action, if
granted, could result in his personal liability. (Mancenido v. Court of
Appeals, 330 SCRA 419 (2000))
b. Examples are:
5. A suit to compel judgment that the officer impleaded may satisfy himself
without the government itself having to do a positive act against him;
b. If the officer does not owe any duty to the individual complaining (i.e., the officer’s
duty is solely to the public), then the individual has no right of action against the
public officer even though the individual may have been injured. The breach is to be
redressed by public prosecution.
2. Criminal
a. If the law attaches a penal sanction, the officer may be punished criminally.
3. Administrative
a. If the administration’s disciplinary power is strong, violation may lead to fine,
reprimand, suspension, or removal from office.
b. The issue in administrative cases is not whether the complainant has a
cause of action against the respondent public officer or employee but
whether the latter has breached the norms and standards of public service.
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c. Object of administrative proceedings
1. The object of administrative proceedings is not the punishment of the officer of
employee but the improvement of the public service and the preservation of the
public faith and confidence in the government.
d. Right to counsel
1. The assistance of counsel is not indispensable in administrative proceedings.
e. Effect of death
1. The death of the respondent in an administrative case does not preclude a
finding of administrative liability.
B. Civil liability
1. Requisites for recovery of damages arising from acts of public officers
a. In order to create the right of action for recovery of damages arising from acts of
public officers, 2 things must concur:
1. Damage to himself (the individual suffered some special and peculiar injury from
the wrongful act complained of); and
2. Wrong or violation of the right of a party committed by the other.
b. Liability is only in their official capacity. No judgment can be rendered to make them
personally liable, unless there is an allegation in the complaint that such officials
have maliciously and in bad faith acted outside the scope of their official authority or
jurisdiction.
c. Public officer shall not be liable for moral and exemplary damages for acts done in
the performance of official duties, unless there is a clear showing of bad faith,
malice, or gross negligence.
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Philippine Racing Club, Inc. v. Bonifacio (109 Phil. 233 [1960])
A faulty start marred a horse race in Sta. Ana. The judges, however, refused to cancel the same,
which the Commission on Races reversed after investigation. In the interim, the holders of the
winning tickets were able to encash their winnings. The result was that the Club not only had to pay
the winners but had to return to the holders of the losing tickets their money.
The Commission only has the power of supervision, meaning the power to oversee and see to it that
the subordinate officers perform their duties, and not control, which is the power to alter, modify, or
nullify a subordinate’s judgment / act. However, since the Commission acted in its official capacity
in the honest belief that they had such a power as in fact they only acted after investigation, they
cannot be held liable for damages.
The Definition of “acts done in official capacity” need not be prescribed by law, it being sufficient
that they are done by an officer in relation to matters committed by law to his control or supervision,
or has more or less a connection to the department under whose authority the officer is acting.
A quasi-judicial authority generally has no liability for erroneous or mistaken decisions, provided that
said decision / act is within the scope of his authority, and without willfulness or corruption.
A hole at the end of a bridge caused the death of P’s parents. Dumlao, the City Engineer of Davao,
was charged with negligence in not repairing the road where the accident occurred, and in not
sufficiently warning the public of the hazards of the road.
Dumlao is not personally liable for damages. Damages are recoverable only from the City of Davao
per Article 2189 of the Civil Code, which does not include the city officials for purposes of liability for
damages to persons caused by defective public works.
A public official is only personally liable for whatever damage he caused by his act done with malice
or bad faith or beyond the scope of his authority. Dumlao was sued in his official capacity, with no
imputation of malice or bad faith. Here, the road repair is owed to the public in general, not to P’s
parents personally.
The Provincial Board abolished 30 positions ostensibly as an austerity measure, and 200 employees
lost their jobs as a result. After some time, however, the board created new positions and hired
1,000 new employees. The employees sued the board, including the governor.
A public officer who commits a tort or a wrongful act beyond the scope of his duty is not protected
by his office and is personally liable therefor. There was bad faith as the purported reason for
sacking the 200 employees is belied by the fact that 1,000 new employees were later hired, contrary
to the so-called austerity measures of the Board. It must be noted that the Board was sued in their
personal capacity.
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2. Effect of contributory negligence of injured party
a. Public officers cannot be held responsible if:
1. The result complained of would have followed notwithstanding the officer’s
misconduct (i.e., the position of the injured party would have been the same had
not the alleged misconduct occurred); or
2. The injured party contributed to the result in any degree by his own fault or
neglect.
b. Criminal liability
1. The President is the first man of the State. An assault upon him is an assault
upon the people. An offense against him is an offense against the State.
A complaint was filed after the Governor-General allegedly seized and confiscated 2,330 ½ kilos of
Siam rice worth P26.32 per cavan for distribution to the public, and which the Governor-General and
other defendants promised to pay only P16.25 a cavan. The complaint further alleges that the acts
were committed under Act No. 2868 of the Philippine Legislature, and pursuant to Executive Orders
No. 56 and 57 issued by the authority of the said Act.
At the time of the alleged acts, the Governor-General was acting in his official capacity when he
exercised discretionary power which was vested in him. No court has ever held and no final
decision will ever be found holding an Executive personally liable in damages for the exercise of
discretionary power under a law before it has been held unconstitutional. There is a legal
presumption that any law enacted by legislature is valid, and so the Governor-General had a legal
right to assume that Act No. 2868 was valid. It was neither his official province nor duty to say
whether the Act was or was not constitutional. To hold an executive personally liable in an action for
damages for the performance or nonperformance of official duty, in legal effect, would make him a
judge as to when a law is or is not constitutional.
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anticipate subsequent legal developments, nor could he be said to know
that the law forbade conduct not previously identified as unlawful.
2. Exception:
a. If the law was clearly established, the immunity defense would ordinarily fail.
2. Higher officials of the executive branch have a broad range of duties and
authority, and must often act swiftly and firmly at the risk that an action
deferred will be futile or constitute virtual abdication of office.
“A Senator or Member of the House of Representatives shall, in all offenses punishable by not more
than 6 years imprisonment, be privileged from arrest while the Congress is in session. No Member
shall be questioned nor be held liable in any other place for any speech or debate in the Congress or
in any committee thereof.” (Constitution, Article VI, Section 11)
b. Members of Congress are not only exempt from general liability but they are also
accorded special privileges as follows:
a. Privilege from arrest while Congress is in session for offenses punishable by
not more than 6 years imprisonment
c. These privileges are designed not to protect members from prosecution but to
enable the representatives to execute the functions of their office without fear of
prosecution, and to ensure freedom from executive or judicial encroachment.
d. The immunity extends to all grades of legislative action (i.e., Congress and local
legislative bodies).
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welfare and prosperity of the people. The performance of duty is owing to the
public and not to individuals.
2. They would not perform their duties timidly if every dissatisfied person would be
allowed to compel them to vindicate the wisdom of their enactments in an
action for damages.
2. The officer is required by law to exercise his judgment, and the law holds his
duty to the individual to be performed when he has exercised it, however
erroneous or disastrous it may seem.
b. Exception: the immunity does not apply to acts that are purely ministerial in nature.
b. The estimation in which his office is held will be lowered, and any
adjudication against a judge lessens the weight of his subsequent decisions.
2. Insofar as a judge acts within his judicial authority, his immunity from civil liability
is held not affected by bad faith, malice, or corrupt motives. If the judge is, in
fact, corrupt, the public has its remedy, but the defeated suitor cannot be
permitted to obtain redress against the judge by alleging that the judgment
against him was the result of corrupt or malicious motives.
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1. General rule: As a matter of public policy, in the absence of fraud, dishonesty,
or corruption, the acts of a judge in his judicial capacity are not subject to
disciplinary action, even though such acts are erroneous.
2. Exceptions:
a. A judge may be held criminally liable for dereliction of duty for:
1. Knowingly rendering an unjust judgment or interlocutory order. A
judgment is unjust if it is contrary to law or is not supported by the
evidence and the same was made with conscious and deliberate intent
to do an injustice.
Bus operators filed an application for increase in passenger fares. Pending resolution, the Public
Service Commission (PSC) issued a resolution provisionally hiking transport rate. Due to complaints
by commuters, an amendatory resolution was issued reducing the provisional fare, with the proviso
that the zonal arrangement shall be applied. Due to a misunderstanding, claims of overcharging
were leveled against some bus operators. The commissioner created an investigatory committee.
In the meantime, oppositors in the case docketed as 66-11-0C for increase of transport fare filed a
petition for certiorari with the Supreme Court. The PSC postponed hearing the case until final
resolution of the petition with the Supreme Court. Complainant in the overcharging case filed an
administrative action against the PSC commissioner for suspending proceedings in said case.
The Commissioner of the PSC is not guilty of nonfeasance or dereliction of duty for postponing the
hearing of the overcharging case. The offense of nonfeasance or dereliction of duty implies a willful
or fraudulent omission or neglect of official duty, and not mere failure to do one particular thing.
After filing of the complaint, respondent issued a show-cause order, conducted the first formal
hearing, and created a committee to implement a new system aimed at resolving the complaint.
However, the PSC Commissioner committed an error of judgment in not proceeding with the hearing
of the overcharging case, despite the pendency of the petition for certiorari.
1. “Purely ministerial act or duty” refers to one which an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the mandate of
the legal authority, without regard to the exercise of his own judgment upon the
propriety or impropriety of the act done. If the law imposes a duty upon a public
officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.
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b. Misfeasance: the failure to use, in the performance of a duty owing to an individual,
that degree of care, skill and diligence, which the circumstances of the case
reasonably demand.
d. General rule: Good faith and absence of malice constitute no defense in an action to
hold a ministerial officer liable for damages caused by his nonfeasance or
misfeasance.
b. Exceptions
1. He is charged with the duty of employing / retaining his subordinates, and he
negligently or willfully employs / retains unfit or improper persons.
2. He is charged with the duty to see that they are appointed or qualified in a
proper name, and he negligently or willfully fails to require them to comply with
the prescribed regulations.
c. Other exceptions
1. A superior is also liable for the misconduct or negligence within the scope of the
employment of those employed by or under him voluntarily or privately, and paid
by or responsible to him.
A cockpit was raided by the police on the ground that a cockfight was being illegally held that day,
which was not a legal holiday. Quimsing and 9 others were charged for violation of the Revised
Penal Code and the Revised Administrative Code. As it turned out, the cockfight was authorized by
ordinances of the city passed pursuant to Republic Act No. 938. Bad faith, which was not duly
established, was imputed to respondent policemen who were sued in their private capacity.
Respondents are not personally liable for damages. They were merely faithfully discharging their
duty as law enforcement agents. Respondents were unaware of the ordinances relied upon by
Quimsing. Moreover, respondents were of the opinion that despite the aforesaid ordinances,
cockfighting on Thursday was still illegal under the Revised Penal Code.
The building permit previously granted to plaintiffs was revoked on the ground that part of the 3-
door apartment under construction occupied the creek bed. Plaintiffs failed to demolish the building
despite several extensions granted to them. Defendants passed a resolution for the demolition of
the building, which was thereafter demolished.
A public officer is not liable for damages for performing a duty required by law, and absent bad faith.
In this particular case, the plaintiffs themselves in their complaint stated that the defendants are all
public officials and that they ordered the demolition of the apartment building in the discharge of
their official function. There remains only the question as to whether or not they acted in bad faith
and the answer is in the negative.
Plaintiff owned sugar lands, part of which was used by respondent director of public works for an
irrigational canal, without the knowledge and consent of the plaintiff. Plaintiff filed an action for
damages against respondent. The trial court dismissed the case on the ground that the suit is
against the State, to which it was not consented.
The trial court erred in dismissing the case. This is a suit against respondent in his personal
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capacity. An officer committing the tort is personally liable therefore, and may be sued as any other
citizen and held answerable for whatever injury or damage results from his tortuous acts.
An officer who acts outside the scope of his jurisdiction and without authorization of law may
thereby render himself amenable to personal liability in a civil suit. If he exceeds the power
conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under
color of office, and not personally. In the eyes of the law, his acts are wholly without authority.
Concepcion, dissenting:
The allegations of the complaint, which emphasizes that the acts complained of were done by
respondent as director of the Bureau of Public Works, clearly shows that he was being sued in his
official capacity. Moreover, in praying that the land be restored to him, plaintiff seeks to divest the
government of its possession of the irrigation canal. The government is, therefore, the real party in
interest.
Plaintiff filed an action for damages against the governor, fiscal, and the province for instituting 2
criminal cases against him, one of which was dismissed, and the other resulting in an acquittal. He
alleged that the cases were filed to harass him and besmirch his reputation. The trial court
dismissed the case on the ground of lack of cause of action.
With respect to the province, there is no cause of action against defendants. As against the public
officials, cause of action exists.
As against the city and province, the prosecution of crimes is not a corporate function, but
governmental or political in character. In the exercise of such functions, municipal corporations are
not responsible for the acts of their officers, except if and when, and only to the extent that they
have acted by authority of the law, and in conformity with the requisites thereof.
The Supreme Court ordered that the case against the governor and the fiscal be remanded to the
lower court. Plaintiff should be given the opportunity to prove his allegations. When a public officer
goes outside the scope of his duty, particularly when acting tortiously, he is not entitled to protection
on account of his office, but is liable for his acts like any other individual.
X was the successful bidder at a public auction for the sale of junk located at the highway district
engineer’s (HDE) office. He hired A as laborer to get the junk. On a Saturday (a non-working day),
the driver of the payloader bucket dropped the same on A, causing the latter injuries. A instituted an
action which included G, the HDE who was adjudged liable on the ground that his employee, B, was
using government equipment and that G allowed the same.
The suit against B is not a suit against the State. The accident occurred on a non-working day, and
the work performed was not shown to have been authorized by the government. Although the
equipment used belonged to the government, the work was done for the benefit of X, and therefore
private in nature. The liability, therefore, arose from tort and not from contract, and it is settled that
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the State is liable only for torts caused by its special agents specially commissioned to carry out
acts complained of outside of such agent’s regular duties. There being no proof that the making of
the tortuous inducement was authorized, neither the State nor its funds can be made liable therefor.
The “master-servant” doctrine in tort law does not apply. B was not working overtime as a
government employee; he was merely moonlighting. A supervisor who merely tolerates his
subordinates to moonlight on a non-working day in their office premises may not be held liable for
everything that happens on that day. No showing of any gain by G, either; it’s more plausible that he
permitted work on a Saturday because he wanted the compound cleared of the junk, and the best
time for the same to be done is on a non-working day.
The Provincial Board agreed to contribute a specified sum to build a bridge that P wanted to service
the property he had subdivided for sale if P could also contribute a specified sum. The Board then
appropriated the sum after P made his contribution. However, the Board stopped work and diverted
the balance of the appropriation to the construction of a different bridge. P brought an action for
damages against members of the Provincial Board.
The defendants are personally liable for damages for having acted illegally, maliciously, and without
any valid reason. When a public officer goes outside the scope of his duty, particularly when acting
tortiously, he is not protected by his office, but liable like any private individual. The liability is even
clearer when the act performed involves corporate and proprietary functions rather than those
strictly governmental and political in nature.
“Any person suffering material or moral loss because a public servant or employee refuses or
neglects, without just cause, to perform his official duty may file an action for damages and other
relief against the latter without prejudice to any disciplinary administrative action that may be taken.”
(Civil Code, Article 27)
3. The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
Z filed an action for damages against the provincial fiscal for not prosecuting the governor. The
fiscal apparently conducted an investigation of a complaint for libel filed by Z against the governor,
and concluded that there existed a prima facie case against said governor.
The present action is based on Article 27, which contemplates a refusal or neglect, without just
cause, by a public servant to perform his official duty. Z’s complaint against the fiscal does not
state a cause of action. The fiscal has the legal duty to prosecute crimes where there is enough
evidence to justify such action. But it is equally his duty not to prosecute when, after an
investigation, he has become convinced the evidence available is not sufficient to establish a prima
facie case.
The fiscal is not bound to accept the opinion of the complainant in a criminal case as to whether or
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not a prima facie case exists. Vested with authority and discretion to determine whether there is
sufficient evidence to justify the filing of the information, and having control of the prosecution of a
criminal case, the fiscal cannot be subjected to dictation from the offended party.
“When a member of a city or municipal police force refuses or fails to render aid or protection to any
person in case of danger to life or property, such peace officer shall be primarily liable for damages,
and the city or municipality shall be subsidiarily responsible therefor. The civil action herein
recognized shall be independent of any criminal proceedings, and a preponderance of evidence
shall suffice to support such action.” (Civil Code, Article 34)
Z filed an action for damages against the provincial fiscal for not prosecuting the governor. The
fiscal apparently conducted an investigation of a complaint for libel filed by Z against the governor,
and concluded that there existed a prima facie case against said governor.
The present action is based on Article 27, which contemplates a refusal or neglect, without just
cause, by a public servant to perform his official duty. Z’s complaint against the fiscal does not
state a cause of action. The fiscal has the legal duty to prosecute crimes where there is enough
evidence to justify such action. But it is equally his duty not to prosecute when, after an
investigation, he has become convinced the evidence available is not sufficient to establish a prima
facie case.
A was assaulted and shot. He went to the police chief, who refused to assist him, but instead
“harassed and terrorized” him. As a result thereof, he gave up his right and interest in the
prosecution of the crime. Due to the intercession of the Mayor, the city attorney later filed an
information against the assailants. The police chief continued harassing A and was about to
demand that the latter sign an affidavit exempting the police from dereliction of duty. A filed a suit
against the police chief under Article 21 or Article 27 of the New Civil Code. The trial court dismissed
the case.
The facts set out constituted an actionable dereliction on the police chief’s part in light of Article 27.
The claim for relief was not based on harassment or terrorization, but on the police’s unjustified
refusal to render assistance, which was his duty as an officer of the law. The fact that A has the
recourse of filing his complaint directly with the city attorney or by lodging administrative charges
against the defendant does not preclude an action for damages under Article 27.
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Petitioner was sued both in her official and personal capacity for her continued refusal to restore
respondent to his position in spite of the final and executory decision of the Civil Service
Commission, declaring that respondent’s transfer / demotion was null and void, hence illegal.
Petitioner is personally liable for the award of moral and exemplary damages for committing an
actionable wrong by unjustifiably refusing or neglecting to perform an official duty. Under Article 27,
in relation to Articles 2217 and 2219 of the Civil Code, a public officer may be liable for moral
damages for as long as those suffered by private respondent were the proximate result of
petitioner’s wrongful act or omission, i.e., refusal to perform a public duty or neglect in the
performance thereof.
Considering that the culprit here is a public official, propriety of exemplary damages cannot be
questioned. It serves as an example or deterrent so that other public officials can be always
reminded that they are public servants bound to adhere faithfully to the constitutional injunction that
a public office is a public trust. That the aggrieved party is also a public official does not mitigate the
effects of petitioner’s having failed to observe the required degree of accountability and
responsibility.
The allegations clearly show that petitioner was sued both in her official and private capacities.
Thus, she is personally liable to respondent.
Rivera and the Mayor, in behalf of the municipality, entered into a contract, which was later ratified
by the municipal council through a resolution. However, the contract was later declared void due to
the absence of a prior appropriation, as required by Section 607 of the Revised Administrative Code.
Rivera does not have a valid claim against the municipality. Before a contract may be entered into
by a municipality, the law requires that there should be an appropriation of municipal funds to meet
the obligation, validly passed and approved by the Mayor.
“Whenever any public officer or employee has acquired during his incumbency an amount of
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property which is manifestly out of proportion to his salary as a public officer or employee and to his
other lawful income and the income from legitimately acquired property, said property shall be
presumed prima facie to have been unlawfully acquired. The Solicitor General, upon complaint by
any taxpayer to the city or provincial fiscal who shall conduct a previous inquiry similar to preliminary
investigations in criminal cases and shall certify to the Solicitor General that there has been
committed a violation of the Act and the respondent is probably guilty thereof, shall file, in the name
and on behalf of the Republic of the Philippines, in the [Regional Trial Court] of the city or province
where said public officer or employee resides or holds office, a petition for a writ commanding said
officer or employee to show cause why the property aforesaid, or any part thereof, should not be
declared property of the State.” (Republic Act No. 1379, Section 2)
Same as above, but this time the action is against the Mayor.
The Supreme Court ruled that the Mayor is personally liable. Section 608 of the Revised
Administrative Code states that the officer making a contract that is void under Section 607 shall be
liable for the damage caused to private parties. The intention of the law is to insure that public
officials entering into transactions with private individuals calling for the expenditure of public funds
observe a high degree of caution so that the government may not be a victim of ill-advised or
imprudent action of those assuming to represent it.
1. It creates a presumption juris tantum against the public officer or employee who
acquires property grossly disproportionate to his income (i.e., that the property
was unlawfully acquired). The presumption may be rebutted by showing to the
satisfaction of the court that his acquisition of the property was lawful.
2. The courts are not bound by the statement of assets and liabilities filed by the
public officer or employee, as the latter is afforded every opportunity to explain
how he had acquired the property in question.
3. Forfeiture proceedings are actions in rem and are civil in nature. A full-blown
trial is not required.
b. Republic Act 3019 penalizes certain acts of public officers and private persons alike
which constitute graft or corrupt practices or which may lead thereto.
“If in accordance with the provisions of Republic Act Numbered One thousand three hundred
seventy-nine, a public official has been found to have acquired during his incumbency, whether in
his name or in the name of other persons, an amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or
removal. Properties in the name of the spouse and unmarried children of such public official may be
taken into consideration, when their acquisition through legitimate means cannot be satisfactorily
shown. Bank deposits shall be taken into consideration in the enforcement of this section,
notwithstanding any provision of law to the contrary.” (Republic Act No. 3019, Section 8)
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Almeda v. Perez (5 SCRA 970 [1962])
Petition for forfeiture was amended to include new items of alleged unlawful acquisitions.
Petitioners objected to the amendment, saying that Republic Act No. 1379 is penal in substance and
effect, hence the presentation of the amended petition without the benefit of a previous preliminary
investigation cannot be allowed.
A study of the provisions of Republic Act No. 1379 readily discloses that the proceeding for
forfeiture is civil in nature and not criminal. The proceeding under the act does not terminate in the
imposition of a penalty, but merely in the forfeiture of illegally acquired properties in favor of the
State. The procedure leading to forfeiture is that provided for in a civil action. Rules on amendment
in ordinary actions are applicable.
Petitioner refused to be sworn as witness and to take the witness stand before a presidential
committee investigating charges of unexplained wealth against him.
Forfeiture partakes of the nature of a penalty or punishment since it is aimed at restraining the
commission of an offense and aiding in the prevention of such. The right against self-incrimination is
available because forfeiture proceedings, in substance, are criminal in nature. It is not to establish,
recover, redress a private or civil right, but to try to punish persons charged with a public offense.
The Almeda doctrine refers only to the procedural aspect and is not overturned.
Republic vs. Sandiganbayan, et al., (G.R. 152154, November 18, 2003, Resolution on the
Respondents' Motion for Reconsideration)
A forfeiture proceeding is an action in rem, against the thing itself instead of against the person.
Being civil in character, it requires no more than a preponderance of evidence. And by
preponderance of evidence is meant that the evidence as a whole adduced by one side is superior
to that of the other. Hence, the factual findings of the court in a previous decision will, as a
consequence, neither affect nor do away with the requirement of having to prove her guilt beyond
reasonable doubt in the criminal cases against her.
Garcia vs. Sandiganbayan, et al., (G.R. No. 165835, June 22, 2005)
Under R.A. No. 8249, the Sandiganbayan is vested with exclusive original jurisdiction in all cases
involving violations of R.A. No. 1379, and Chapter II, Sec. 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the following positions whether in a
permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of
the executive branch occupying the positions of regional director and higher, otherwise classified as
Grade '27' and higher, of the Compensation and Position Classification Act of 989 (R.A. No. 6758),
specifically including: (a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads; (b)
City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
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engineers, and other city department heads; (c) Officials of the diplomatic service occupying the
position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all
officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent or higher; (f) City and
provincial prosecutors and their assistants, and officials and prosecutors in the Office of the
Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state universities or educational institutions or
foundations; (2) Members of Congress and officials thereof classified as Grade '27' and up under the
Compensation and Position Classification Act of 1989; (3) Members of the judiciary without
prejudice to the provision of the Constitution; (4) Chairmen and members of Constitutional
Commission, without prejudice to the provisions of the Constitution; and (5) All other national and
local officials classified as Grade '2' and higher under the Compensation and Position Classification
Act of 1989.
The civil nature of an action for forfeiture was first recognized in Republic v. Sandiganbayan, thus:
"The rule is settled that forfeiture proceedings are actions in rem and, therefore, civil in nature."
Then, Almeda, Sr. v. Perez, followed, holding that the proceedings under R.A. No. 1379 do not
terminate in the imposition of a penalty but merely in the forfeiture of the properties in favor of the
State. It noted that the procedure outlined in the law leading to forfeiture is that provided for in a
civil action.
Ong et. al vs. Sandiganbayan, et. al., (G.R. No. 126858, September 16, 2005)
The attacks against the constitutionality of RA 1379 because it is vague, violates the presumption of
innocence and the right against self-incrimination, and breaches the authority and prerogative of the
Supreme Court to promulgate rules concerning the protection and enforcement of constitutional
rights, are unmeritorious.
The law is not vague as it defines with sufficient particularity unlawfully acquired property of a public
officer or employee as that "which is manifestly our of proportion to his salary as such public officer
or employee and to his other lawful income and the income from legitimately acquired property." It
also provides a definition of what is legitimately acquired property. Based on these parameters, the
public is given fair notice of what acts are proscribed. The law, therefore, does not offend the basic
concept of fairness and the due process of the Constitution.
Neither is the presumption of innocence clause violated by Sec. 2 of RA 1379 which states that
property acquired by a public officer or employee during his incumbency in an amount which is
manifestly out of proportion to his salary as such public officer or employee and to his other lawful
income and the income from legitimately acquired property shall be presumed prima facie to have
been unlawfully acquired. As elaborated by Fr. Joaquin Bernas, under the principle of presumption
of innocence, it is merely required of the State to establish a prima facie case, after which the
burden of proof shifts to the accused.
Heirs of Gregorio Licaros vs. Sandiganbayan, et al, (G.R. No. 157438, October 18, 2004)
The instant action for reconveyance, restitution, and accounting impleads the Estate/Heirs of
Gregorio Licaros for previous acts committed by the decedent during his lifetime, more particularly
for conspiring with the main defendants to prejudice the Republic. An action to recover ill-gotten
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wealth is outside the purview of the ordinary rules on prescription, as contained in Article 1146 of the
Civil Code. Section 15 of Article XI of the 1987 Constitution states:
Section 15. The right of the State to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall not be barred by prescription,
laches or estoppel.
The intendment of the foregoing constitutional provision -- exempting actions to recover ill-gotten
wealth from the operation of the general rules of prescription -- presumably lies in the special
attendant circumstances and the primordial state interest involved in cases of such nature.
2. Every officer accountable for government funds shall also be liable for losses
from the unlawful deposit, use, or application thereof.
2. The officer directing illegal payment or disposition is primarily liable for the loss.
The accountable officer who fails to serve notice is secondarily liable.
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Albert v. Gangan (353 SCRA 673 [2001])
The Commission on Audit found petitioner, then president of NHMFC, liable for the amount covering
the payment of the loan proceeds for the lot acquired by AMAKO, which was disallowed on audit.
Petitioner is not personally liable for the subject amount in the absence of any finding that he has
knowingly participated in the alleged fraudulent transactions. There is no evidence to show that
petitioner had knowledge of the fraudulent scheme perpetrated by some NHFMC employees. In
fact, he immediately filed a complaint with the Ombudsman against the subordinate employees who
appeared to be responsible.
There mere fact that a public officer is the head of an agency does not necessarily mean that he is
the party ultimately liable in case of disallowance of expenses for questionable transactions of his
agency.
A person who signs documents in the course of transit through standard operating procedures does
not automatically become a conspirator in a crime which transpired at a stage where he had no
participation. Knowledge of the conspiracy and acting and knowing participation must be proven by
positive evidence.
Under Section 103 of Presidential Decree 1445, an official or employee shall be personally liable for
unauthorized expenditures of the following requisites are present: (1) expenditure / use of
government funds / property; (2) expenditures in violation of law or regulation; (3) official is found
directly responsible therefor.
C. Criminal liability
1. Generally
a. The mere fact that an officer is acting in an official capacity will not relieve him from
criminal liability.
b. Public officers may not be held criminally liable for failure to perform a duty
commanded by law when, for causes beyond their control performance is
impossible. However, the absence of corrupt intent is not a defense to an action
against an officer for misconduct, or for willful failure or refusal to perform a
mandatory ministerial duty.
c. The mere expiration of his term of office will not prevent the prosecution and
punishment of the public officer for misdemeanor committed in office, nor does
reelection extinguish the criminal liability incurred by him during his previous term of
office. (Conducto v. Monzon, 291 SCRA 619 (1998); Ingco v. Sanchez, 21 SCRA
1292 (1967); Luciano v. The Provincial Governor, 28 SCRA 517 (1969))
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duties and powers of public office, usurpation of powers, and unlawful
appointments.
Budget officer falsified vouchers for repair of government vehicles and made a request for the
allotment of funds without ascertaining whether or not the repairs were needed.
The budget officer should not be declared a conspirator for not questioning the obvious irregularity
in the preparation of the vouchers. The budget officer’s lack of care in signing spurious documents
may be a ground for administrative action only. Conspiracy has to be clearly shown.
The budget officer’s only participation in the alleged conspiracy was to obligate and allot funds.
Just because a person in a chain of processing officers happens to sign a voucher does not
necessarily mean that he becomes a part of a conspiracy in an illegal crime.
Petitioners were convicted for causing undue injury to the government when lanf was assess at
P5/sq.m. in 1973 was acquired by the government at P80/sq.m. in 1978 through negotiated
purchase.
Petitioners should not be convicted in connection with overpricing the lands purchased by the
government. The court would be setting a bad precedent if a head officer plagued by all too
common problems is suddenly swept into conspiracy connections simply because he did not
primarily examine every single detail involved in a transaction before affixing his signature as final
approving authority. Mere signature or approval is insufficient to prove conspiracy. Actual injury (for
overpricing of the land bought by the government) must be established. All heads of office have to
rely, to a reasonable extent, on their subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations.
Griño-Aquino, dissenting:
There is conspiracy of silence and inaction where chiefs of office should have been vigilant to
protect government interests.
(a) Any public official or employee, regardless of whether or not he holds office or employment in a
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casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act
shall be punished with a fine not exceeding the equivalent of six (6) months' salary or suspension not
exceeding one (1) year, or removal depending on the gravity of the offense after due notice and
hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under
another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this
Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five
thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction,
disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for
removal or dismissal of a public official or employee, even if no criminal prosecution is instituted
against him.
(d) The official or employee concerned may bring an action against any person who obtains or uses
a report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such action is
brought may assess against such person a penalty in any amount not to exceed twenty-five
thousand pesos (P25,000). If another sanction hereunder or under any other law is heavier, the latter
shall apply.” (Republic Act No. 6713, Section 11)
“Any public officer or employee who shall, after the effective date of this Act, transfer or convey any
unlawfully acquired property shall be repressed with imprisonment for a term not exceeding five
years, or a fine not exceeding ten thousand pesos, or both such imprisonment and fine. The same
repression shall be imposed upon any person who shall knowingly accept such transfer or
conveyance.” (Republic Act No. 1379, Section 12)
1. The Act provides for the procedure to declare forfeited any property found to
have been unlawfully acquired by a public officer.
2. It punishes with imprisonment for a term not exceeding 5 years or a fine not
exceeding P10,000 or both such imprisonment or fine, any public officer or
employee who shall transfer or convey any unlawfully acquired property.
“Whoever makes any appointment or employs any person in violation of any provision of this Decree
or the rules made thereunder or whoever commits fraud, deceit or intentional misrepresentation of
material facts concerning other civil service matters, or whoever violates, refuses or neglects to
comply with any of such provisions or rules, shall upon conviction be punished by a fine not
exceeding one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine
and imprisonment in the discretion of the court.” (Presidential Decree No. 807, Section 55)
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f. Government Auditing Code
“Any violation of the provisions of Sections 67, 68, 89, 106, and 108 of this Code or any regulation
issued by the Commission implementing these sections, shall be punished by a fine not exceeding
one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine and
imprisonment in the discretion of the court.” (Presidential Decree No. 1445, Section 128)
“Any local official and any person or persons dealing with him who violate the prohibitions provided
in Section 89 of Book I hereof, shall be punished with imprisonment for six months and one day to
six years, or a fine of not less than Three thousand pesos (P3,000.00) nor more than Ten thousand
pesos (P10,000.00), or both such imprisonment and fine at the discretion of the court.” (Republic
Act No. 7160, Section 514)
1. Those guilty of extortion or willful oppression through the use of his office;
2. Those who knowingly demand other or greater sums than are authorized by law or receive any
fees, compensation or reward, except as by law prescribed, for the performance of any duty;
3. Those who willfully neglect to give receipts, as by law required, for any sums collected in the
performance of duty or who willfully neglect to perform any other duties enjoined by law;
4. Those who conspire or collude with another or others to defraud the revenues or otherwise violate
the provisions of this Code;
5. Those who by neglect or design permit the violation of the law by any other person;
6. Those who made or sign any false entry or entries in any books, or make or sign any false
certificate or return;
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7. Those who allow, or conspire or collude with another to allow the unauthorized retrieval,
withdrawal or recall of return, statement or declaration after the same has been officially received by
the Bureau of Internal Revenue;
8. Those who, having knowledge or information of a violation of this Code or of any fraud committed
on the revenues collectible by the Bureau of Internal Revenue, fail to report such knowledge or
information to their superior officer or to report as otherwise required by law; and
9. Those who, without the authority of law, demand or accept or attempt to collect, directly or
indirectly, as payment or otherwise any sum of money or other thing of value for the compromise,
adjustment, or settlement of any charge or complaint for any violation or alleged violation of this
Code. (Presidential Decree No. 1158, Section 268)
“Unlawful interest of revenue law enforcers in business. — Any internal revenue officer who is or
shall become interested directly or indirectly, in the manufacture, sale, or importation of any article
subject to tax under Title IV (now VI) of this Code or in the manufacture or repair or sale of any die
for the printing, or making of stamps, or labels shall, upon conviction for each act or omission, be
fined in a sum of not less than five thousand pesos but not more than ten thousand pesos, or
imprisoned for a term of not less than two years and one day but not more than four years, or both.
(Presidential Decree No. 1158, Section 270)
“Unlawful divulgence of trade secrets. — Except as provided in Section 74 (now 64) of this Code
and Section 26 of Republic Act Numbered 6388, any officer or employee of the Bureau of Internal
Revenue who divulges to any person or makes known in any other manner than may be provided by
law information regarding the business, income, or estate of any taxpayer, the secrets, operation,
style or work, or apparatus of any manufacturer or producer, or confidential information regarding
the business of any taxpayer, knowledge of which was acquired by him in the discharge of his
official duties, shall upon conviction for each act or omission, be fined in a sum of not less than five
thousand pesos but not more than ten thousand pesos, or imprisoned for a term of not less than six
months but not more than five years or both. (Presidential Decree No. 1158, Section 269)
“Violation of withholding tax provision. — Every officer or employee of the government of the
Republic of the Philippines or any of its agencies and instrumentalities, its political subdivisions, as
well as government-owned or controlled corporation including the Central Bank who, under the
provisions of this Code or regulations promulgated thereunder, is charged with the duty to deduct
and withhold any internal revenue tax and to remit the same in accordance with the provisions of
this Code and other laws is guilty of any offense hereinbelow specified shall, upon conviction for
each act or omission, be fined in a sum of not less than five thousand pesos but not more than fifty
thousand pesos or imprisoned for a term of not less than six months and one day but not more than
two years, or both:
1. Those who fail or cause the failure to deduct and withhold any internal revenue tax under any of
the withholding tax laws and implementing regulations;
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2. Those who fail or cause the failure to remit taxes deducted and withheld within the time
prescribed by law, and implementing regulations; and
3. Those who fail or cause the failure to file return or statement within the time prescribed, or
render or furnish a false or fraudulent return or statement required under the withholding tax laws
and regulations.” (Presidential Decree No. 1158, Section 271)
There is no denying the fact that the "plunder of an entire nation resulting in material damage to the
national economy" is made up of a complex and manifold network of crimes. In the crime of
plunder, therefore, different parties may be united by a common purpose. In the case at bar, the
different accused and their different criminal acts have a commonality - to help the former President
amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended
Information alleged the different participation of each accused in the conspiracy. The gravamen of
the conspiracy charge, therefore, is not that each accused agreed to receive protection money from
illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused
ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from
such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is
that each of them, by their individual acts, agreed to participate, directly or indirectly, in the
amassing, accumulation and acquisition of ill-gotten wealth of and/or former President Estrada.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a
malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala
in se and it does not matter that such acts are punished in a special law, especially since in the case
of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat
prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check
Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of
the acts.
Our nation has been racked by scandals of corruption and obscene profligacy of officials in high
places which have shaken its very foundation. The anatomy of graft and corruption has become
more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more
ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to
fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting
of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly
tissues of grand-scale corruption, which, if left unchecked, will spread like a malignant tumor, and
ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a
living testament to the will of the legislature to ultimately eradicate this scourge and thus secure
against the avarice and other venalities in public office.
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Serapio vs. Sandiganbayan, et. al., (396 SCRA 443 (2003])
There must be a showing that the evidence of guilt against a person charged with a capital offense is
not strong for the court to grant him bail. Thus, upon an application for bail by the person charged
with a capital offense, a hearing thereon must be conducted, where the prosecution must be
accorded an opportunity to discharge its burden of proving that the evidence of guilt against an
accused is strong. The prosecution shall be accorded the opportunity to present all the evidence it
may deem necessary for this purpose. When it is satisfactorily demonstrated that the evidence of
guilt is strong, it is the court's duty to deny the application for bail. However, when the evidence of
guilt is not strong, bail becomes a matter of right.
A. Specifically
B. Natural causes
b. “Term” ordinarily means a fixed and definite time prescribed by law or Constitution
by which an officer may hold an office. It does not apply to appointive offices held
at the pleasure of the appointing power.
b. When the term is not fixed by law, and the incumbent is relieved by the appointing
authority, the legal effect is the same as if the term had been fixed by Congress
itself. There is no removal.
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3. Term and tenure distinguished
Term Tenure
• The time during which the officer may • Represents the period during which the
claim to hold the office as of right incumbent actually holds office
• Fixed and definite period of time to hold • It may be shorter than the term
office
• It is not affected by holding-over of the
incumbent after expiration of the term for
which he was appointed
Nueno claims right to office for being unable to serve for the full term due to the Japanese
occupation.
Nueno is not entitled to hold over notwithstanding the expiration of his term. The term of office is
fixed by law and cannot be extended even by reason of war.
The law provides that the Vice-Mayor shall hold office at the pleasure of the President. VA was
appointed as Vice-Mayor. Later, the President designated JA as acting Vice-Mayor in place of VA.
The President could legally replace VA without cause. The tenure of the appointee is dependent
upon the pleasure of the President. Thus, the replacement of VA is not removal but an expiration of
his tenure. What is involved here is the creation of an office and the tenure of such office, which has
been made expressly dependent upon the pleasure of the President.
Cadiente was appointed City Legal Officer of Davao City. The new mayor terminated his services on
the ground that his position was primarily confidential in nature.
The termination of Cadiente’s services is not removal or dismissal. His position is confidential in
nature. The tenure of officials holding primarily confidential positions ends upon loss of confidence
because their term of office lasts only as long as confidence in them endures. Such cessation
involves no removal.
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There was no evidence to indicate that Cristobal’s position was confidential in nature and thus
subject to removal by the pleasure of the appointing power. In fact, the compensation attached and
designation given to his position suggests the purely or at least mainly clerical nature of his work.
b. Where no time is fixed, the term will generally begin on the date of election or
appointment.
c. Where the term runs “from” a certain date, the date of the date is excluded in the
computation.
2. When Congress creates a public office, it has the power to modify the term of
such office in the public interest.
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3. Where Constitution limits term
a. Where the Constitution itself limits the term of a public officer without
providing that he can continue in office after the expiration of his official
term until his successor is duly qualified, holding over is not permitted.
After a municipality was converted into Occidental Mindoro, Judge Ramos, a judge of the Court of
First Instance of the original province of Mindoro, whose sala is located in Oriental Mindoro, issued
an order affecting a land in Occidental Mindoro.
The judge acted within the scope of his jurisdiction. In the absence of any provision to the contrary,
the judge of Court of First instance (and the Register of Deeds) of the Province of Mindoro continued
after its division to be the judge both of Occidental and Oriental Mindoro.
2. Public officers and employees are deemed compulsorily retired when they reach
65 years of age.
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a. A public official ceases to hold office upon his death and all his rights and duties
and obligations are extinguished.
b. The right to resign, however, is not unqualified. An office cannot be laid down
without the consent of the appointing power where the public policy requires that
the right shall be declared in a much more restricted manner. This is required so
that public interests will suffer no inconvenience for the want of public servants to
execute the laws.
d. One who has not been elected or appointed to a public office cannot resign, or if
elected or appointed cannot resign until the time has arrived when he is entitled by
law to possess the same.
2. Meaning of resignation
a. “Resignation” is the formal renunciation or relinquishment of a public office. It
implies an expression by the incumbent in some form, express or implied, of the
intention to surrender, renounce, and relinquish his right to the office and its
acceptance by competent and lawful authority. (Gamboa v. Court of Appeals, 108
SCRA 1 (1981); Ortiz v. Commission on Elections, 162 SCRA 812 (1988); Republic v.
Singun, 548 SCRA 361 (2008))
3. Form of resignation
a. When the law requires resignation to be made in any form, that form must be
substantially complied with.
Gonzales was attorney-agent of the Department of Finance. He was ordered to resign by the
Commissioner of Civil Service who found him guilty of disreputable conduct. His wife was
appointed in his place. Meanwhile, Gonzales accepted temporary appointment in the GSIS. The
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Civil Service Board of Appeals ordered his reinstatement.
Gonzales has the right to be reinstated. There was no clear intention on Gonzales’ part to relinquish
his position by filing a conditional resignation. To constitute a complete and operative act of
resignation, the officer or employee must show a clear intention to relinquish or surrender his
position and there must be an acceptance by a competent and lawful authority.
Ortiz was the Commissioner of COMELEC with a term until 1992. In 1986, when Aquino became the
President, he and the other Commissioners wrote President Aquino stating that they place their
position at her disposal. The President accepted this resignation. When Ortiz applied for retirement
benefits, the COMELEC denied it saying that he was not entitled to such retirement benefits
because he did not complete his term.
A courtesy resignation cannot be properly interpreted as resignation in the legal sense for it sis not
necessarily a reflection of a public official’s intention to surrender his position. Rather, it manifests
submission to the will of the political authority and the appointing power. Petitioner, therefore,
should be deemed to have completed his term. The curtailment of his term not being attributable to
any voluntary act on the part of petitioner, equity and justice demand that he should be deemed to
have completed his term albeit much ahead of the date stated in his appointment paper.
Yes. Resignation can be oral or written express or implied. Although Estrada did not write any
formal letter of resignation, the totality of prior, contemporaneous and posterior facts and
circumstantial evidence show that he indeed resigned. His letter which declares that he is unable to
exercise the powers of his office cannot negate the resignation of petitioner.
2. The Supreme Court cannot accept the resignation of a judge because such
acceptance is the prerogative of the President but it may consider an erring
judge retired with all and benefits and gratuities forfeited. (Office of the Court
Administrator v. Lansang, 186 SCRA 646 (1990))
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3. Acceptance by the Department Secretary of the resignation is deemed to be the
act of the President. (Triste, Jr. v. Macaraeg, Jr., 175 SCRA 284 (1989))
Legaspi was found guilty of the charges of oppression and serious misconduct in office and was
suspended. During his suspension, he filed a certificate of candidacy for the position of
Congressman but lost in the election.
The permanent and automatic loss of office by any elective officer who runs for an office other than
the one which he is actually holding makes no exception for official under suspension at the time
they file their certificate of candidacy. Since petitioner forfeited any right to the office of Mayor,
when he filed, he can no longer seek reinstatement to such position.
Mendoza tendered his resignation as Governor of Pampanga effective at the pleasure of the
President. Later, he was appointed as Minister of Justice. Mendoza tendered his resignation again
as Governor (note: under the 1973 Constitution, a member of the Cabinet who is elected Provincial
Governor and who is thereafter appointed as member of the Batasang Pambansa, is not prohibited
to retain his position).
Mendoza can reassume the governorship of Pampanga after having tendered his resignation. The
President did not accept his resignation. His tender of resignation was effective at the pleasure of
the President. Obviously, it was not meant to be effective immediately; acceptance was still
necessary. There was no implied acceptance either as action thereon was held in abeyance.
7. Form of acceptance
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a. Acceptance may be manifested either by a formal declaration or by the appointment
of a successor.
8. Withdrawal of resignation
a. Resignation may be withdraw before acceptance. This is true whether the
resignation is denominated as immediately effective or effective at a future date.
c. When resignation is given as an alternative to have charges filed against the public
officer.
b. When the law or Constitution prohibits the officer from accepting another office
other than that which he holds, he does not forfeit his original office. the second
appointment is void.
b. Where the first office is held under a different government from that which conferred
the second;
c. Where the officer is expressly authorized by law to accept another office; and
c. Abandonment may also result from the intentional and completed relinquishment of
any claim to the office.
2. Failure to discharge the duties of an office over any particular period of time, or
to claim or resume it after a period in which performance of its functions
became impossible, constitutes abandonment or voluntary relinquishment of the
office.
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3. The principles on abandonment should not be too strictly applied to cases
occurring during war or where such nonperformance results from temporary
disability or from involuntary failure to perform.
NAPOLCOM Commissioner was compelled to leave such position because of a law. he accepted
the position of Inspector General of the PNP Internal Affairs Division (IAD). During the interim,
however, he had filed suit to declare the law which made him leave his NAPOLCOM position
unconstitutional. He claims reinstatement to the NAPOLCOM position.
Canonizado did not waive his claim to reinstatement when he accepted the IAD inspectorship. That
he had no intent to abandon his office is seen by the fact that he questioned the law which made
him leave his NAPOLCOM position by filing suit before the Supreme Court. He had the right to live
during the pendency of the case.
That the said 2 offices (NAPOLCOM and IAD) are incompatible is not questioned. However, we
cannot apply the doctrine that the acceptance of an incompatible office (IAD) ipso facto vacates the
first office (NAPOLCOM) since Canonizado never discharged the duties of both offices
simultaneously. He had already been forced out of NAPOLCOM before he accepted the IAD
position.
b. The effect of both resignation and abandonment is that the former holder of an
office can no longer legally repossess or reclaim it. Both are voluntary acts.
b. A justice of the peace who worked in the Surplus Property Commission as skilled
laborer and clerk-typist and subsequently cashed-in his GSIS policies must be
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considered as having abandoned his office as justice of the peace. (Argos v. Veloso,
83 Phil. 929 (1949))
c. Justice of the peace left his office by a mistaken order of the judge of the Court of
First Instance and does not take the necessary steps to recover the same for some
3 years, but presents himself as a candidate for municipal president in the
meantime. (Ortiz v. De Guzman, 49 Phil. 371 (1926))
e. Where petitioner who was removed from office as acting chief of police without any
lawful cause accepted another position in the government service. (Agapuyan v.
Ledesma, 101 Phil. 199 (Unrep. 1957))
f. Where a public officer accepts and enjoys his retirement benefits. (Lopez v. National
Marketing Corp., 101 Phil. 349 (1957))
g. Where a public officer for more than 5 years did not take any step to contest the
legality of his removal. (Madrid v. Auditor General, 108 Phil. 578 (1960))
h. Where the City Treasurer of Butuan who was detailed for assignment in the
Department of Finance did not object to the designation of another as acting City
Treasurer, a vacancy was created in the office of the City Treasurer of Butuan which
could be filled permanently or temporarily by the President. (Calo v. Magno, 7
SCRA 380 (1963))
i. The continued and absolute refusal or neglect to qualify at all and to enter upon the
discharge of his duties must operate, so far as the delinquent himself is concerned,
in vacating his title to the office.
j. Where the officer refuses or neglects to exercise the functions of the office for so
long a period as to reasonably warrant the presumption that he does not desire or
intend to perform the duties of the office at all, he will be held to have abandoned it.
k. Where a public officer holding an office under the government, rebels against the
government and seeks or aids its overthrow.
l. Where a public officer has been absent without leave for several months and such
absence was unexplained and unauthorized. (Tadeo v. Daquiz, 224 SCRA 656
(1993))
2. Meaning of removal
a. “Removal” entails the ouster of an incumbent before the expiration of his term. It
implies that the office exists after the ouster. Synonymous to “dismissal”.
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4. Appointments may be allowed to positions without specification of any
particular office or station (e.g., appointments to the staff of the Civil Service
Commission are not appointments to a specified public office but rather
appointments to particular positions or ranks).
c. Demotion
1. It refers to movement from one position to another involving the issuance of an
appointment with diminution in duties, responsibilities, status or rank which may
or may not involve reduction in salary. (Fernando v. Sto. Tomas, 234 SCRA 546
(1994))
d. Reassignment
1. It refers to movement of an employee from organization unit to another in the
department or agency which does not involve a reduction in rank, status, or
salary and does not require the issuance of an appointment. (compared to
demotion which involves the issuance of an appointment) (Padolina v.
Fernandez, 340 SCRA 442 (2000))
2. Conditional when the time, the manner, or the reason is placed beyond the mere
discretion of the removing officer. (Pangilinan v. Maglaya, 225 SCRA 511 (1993))
2. From the nature of the “Executive power” exercised by the President, the
power to remove being executive in nature;
4. From the President’s control of all departments, bureaus, and offices; and
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5. From the provision that “no officer or employee in the Civil Service shall be
removed or suspended except for cause provided by law”.
d. For civil service officers, the President may remove them only for cause provided by
law.
f. For officers holding public offices created by law which authorizes the President to
remove them at pleasure, they may be removed only for cause if they belong to the
civil service. If the law provides that they hold office at the pleasure of the
President, their replacement is not a removal but an expiration of term.
g. Where appointment is based not on usual test of merit and fitness, their tenure is
co-terminous with that of the appointing authority or subject to his pleasure.
h. With respect to local elective officials, the President cannot remove them because
he only exercises supervisory powers over them. Instead, they may be removed by
the sanggunian.
c. Substantive aspect
1. The phrase “for cause provided by law” means reasons which the law and
sound public policy recognizes as sufficient ground for removal or suspension or
demotion and after due process is accorded to the officer or employee.
2. It means legal cause and not merely causes which the appointing power
considers sufficient.
3. Cause must, as a general rule, relate to the functions of the office which the
officer holds or be connected with the performance of his official duties.
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d. Procedural aspect
1. The guarantee of procedural due process requires notice and opportunity to be
heard before one is disciplined. Complaint against a civil service officer or
employee must be in writing and subscribed and sworn to by the complainant if
it is to be given due course.
c. Persons in the non-career service are protected from removal or suspension without
just cause and non-observance of procedural due process.
e. Exception: a person holding a position at the pleasure of the appointing power, who
is removed when this pleasure turns into displeasure, or when there is loss of
confidence, is not removed for the purposes of this rule. His term merely expires.
“Each House may determine the rules of its proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty days.” (Constitution, Article VI, Section
16(3))
b. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman
“The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.” (Constitution, Article XI, Section 2)
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“The Members of the Supreme Court and judges of lower courts shall hold office during good
behavior until they reach the age of seventy years or become incapacitated to discharge the duties
of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts,
or order their dismissal by a vote of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon.” (Constitution, Article VIII, Section 11)
“No officer or employee of the civil service shall be removed or suspended except for cause
provided by law.” (Constitution, Article IX-B, Section 2(3))
13. Grounds for disciplinary action under the Local Government Code
a. Removal of an elective local official on any of the following grounds must be by
order of the proper court. The President has no power of removal over elective
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officials. Local government heads have jurisdiction to investigate and decide
matters involving disciplinary action against officers and employees under them.
1. Disloyalty to the Republic of the Philippines
5. Abuse of authority
8. Such other grounds as may be provided in the Code and other laws.
14. Grounds for disciplinary action under the Civil Service Law
a. No officer or employee in the Civil Service shall be suspended or dismissed except
on the following grounds for which disciplinary action may be imposed:
1. Dishonesty
2. Oppression
3. Neglect of duty
4. Misconduct
9. Receiving for personal use a fee, gift or other valuable thing in the course of
official duties or in connection therewith when such fee, gift, or other valuable
thing is given by any person in the hope or expectation of receiving a favor or
better treatment than that accorded other persons, or committing acts
punishable under the anti-graft laws
12. Violation of existing Civil Service Law and rules or reasonable office regulations
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13. Falsification of official documents
22. Willful failure to pay just debts or willful failure to pay taxes due to the
government
23. Contracting loans of money or other property from persons with whom the office
of the employee concerned has business relations
25. Insubordination
26. Engaging, directly or indirectly, in partisan political activities by one holding non-
political office
28. Lobbying for personal interest or gain legislative halls and offices without
authority
29. Promoting the sale of tickets in behalf of private enterprises that are not
intended for charitable or public welfare purposes even in the latter cases if
there Is no prior authority
30. Nepotism
2. “Misconduct in office” is one that affects the officer’s performance of his duties
as an officer and not only as affects his character as a private individual.
b. The act of the Clerk of the Court of Appeals in forging the signature of the
complainant on receipts to avoid her contractual obligation was held to be
an offense constituting conduct prejudicial to the best interest of the
service, not misconduct. (Mariano v. Roxas, A.M. No. CA-02-14-P, July 31,
2002)
3. Other grounds for disciplinary action, like dishonesty and conduct prejudicial to
the best interest of the service under the Civil Service Law may not be
connected with the performance of official duties.
a. Issuing a bouncing check constitutes misconduct. (Lee v. Mangalindan, 548
SCRA 241 (2008))
2. Exceptions:
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a. Criminal case pending against re-elected official (Aguinaldo v. Santos, 212
SCRA 768 (1992))
Mayor Palma was charged with several counts of acts of lasciviousness. Complainants asked
Governor Fortich for an administrative investigation for the purpose of immediately suspending
Palma. Palma was preventively suspended and contends that the crimes charged did not constitute
misconduct in office, which was the basis for the administrative case.
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The crimes charged did not constitute misconduct in office. there are 2 grounds for suspension of
municipal officers (1) those related to their office, (2) those not so related. If the crime involving
moral turpitude is not linked to official duty, final conviction is a condition precedent to
administrative action. Misconduct is defined as such which affects an officer’s performance of his
duties as an officer and not only as affects his character as a private individual.
P, a deputy sheriff, enforced a writ of preliminary injunction by a Makati judge in Ozamis. He then
shipped the properties take under the writ to himself upon request of the plaintiffs after he already
turned the possession over to the plaintiffs.
P’s acts constituted misconduct in office. As an officer of the court, he should have known that the
writ was only enforceable within the region under the issuing court’s jurisdiction. He should have
cleared the writ’s enforceability with the Ozamis court first. He went out of his way to unduly favor
the plaintiffs by shipping the properties in his name after possession had already been turned over.
This is an undue “extra service”.
Nera was a clerk in a government hospital and was charged with keeping the funds of its employees’
organization. He was charged criminally with malversation. On the basis of said charge, an
administrative case for dishonesty and misconduct was filed and he was preventively suspended.
He assails this on the ground that the crimes charged were not related to the performance of his
official duties.
The preventive suspension was legal. It is not a penalty, thus, it is not improper in suspending a
person pending his investigation and before the case is heard. When a person is merely charged
with neglect, the same must be in the performance of his duties, but if he is charged with dishonesty
and grave misconduct, these need have no relation to his official duty.
The Supreme Court differentiated appointive and elective official. Elective officials are directly
responsible only to the community that elected him. Thus, he may not be summarily suspended
unless his conduct has some connection with his office. he has a relatively short period in office,
and since suspension will effectively shorten his period, it should not be imposed unless to prevent
damage to the public.
O, the Mayor, was convicted of slight physical injuries in slapping his wife and daughter inside the
municipal building and was further charged with illegal cockfighting and resisting arrest. He was
also administratively charged with misconduct in office for the same acts. The Provincial Governor
suspended him and he now questions the administrative charges and his suspension.
O’s acts did not validly give rise to said administrative charges. The act of slapping his wife and kid
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was obviously personal in nature and does not affect his official duties. While it is true that he was
convicted, the crime did not involve moral turpitude. The charges of gambling and resisting arrest
with assault on the officers arresting him cannot be the basis either because there was yet no
conviction. The alleged misconduct must be directly related to and connected with the performance
of official duties amounting to mal-administration or willful, intentional neglect and failure to
discharge the duties of an office.
16. Nepotism
a. Situations covered
1. The Civil Service Decree prohibits all appointments in the national and local
governments or any branch or instrumentality thereof, including government-
owned or controlled corporations, made in favor of a relative of the:
a. Appointing authority;
b. Recommending authority;
c. Chief of the bureau or office; or
d. Person exercising immediate supervision over the appointee.
2. “Relative” refers to members of the family within the 3rd degree of either
consanguinity or affinity.
d. Purpose of prohibition
1. The purpose of the prohibition is to ensure that all appointments and other
personnel actions in the civil service should be based on merit and fitness and
should never depend on how close or intimate an appointee is to the appointing
power.
17. Grounds for disciplinary action under the Code of Conduct and Ethical Standards
a. The following constitute grounds for administrative disciplinary action under the
Code and without prejudice to criminal and civil liabilities, regardless of whether the
official or employee holds office or employment in a casual, temporary, hold-over,
permanent or regular capacity:
1. Directly or indirectly having financial and material interest in any transaction
requiring the approval of his office. “Financial and material interest” is defined
as a pecuniary or proprietary interest by which a person will gain or lose
something;
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2. Owning, controlling, managing or accepting employment as officer, employee,
consultant, counsel, broker, agent, trustee, or nominee in any private enterprise
regulated, supervised or licensed by his office, unless expressly allowed by law;
b. A gift from a member of his family or relative as defined in the Code on the
occasion of a family celebration, and without any expectation of pecuniary
gain or benefit.
g. Obtaining or using any statement filed under the Code for any purpose
contrary to morals or public policy or any commercial purpose other than by
news and communications media for dissemination to the general public.
j. Failure to act promptly on letters and request within 15 days from receipt,
except as otherwise provided in the Implementing Rules.
l. Failure to attend to anyone who wants to avail himself of the services of the
office; or to act promptly and expeditiously on public personal transactions.
m. Failure to file sworn statements of assets, liabilities and net worth, and
disclosure of business interests and financial connections.
n. Failure to resign from his position in the private business enterprise within
30 days from assumption of public office when conflict of interest arises,
and / or failure to divest himself of his shareholdings or interests in private
business enterprise within 60 days from such assumption of office when
conflict of interest arises.
b. The foregoing acts shall continue to be prohibited for a period of 1 year after
resignation, retirement or separation from public office, except item number 3
above. However, the professional concerned cannot practice his profession in
connection with any matter before the office he used to be with within 1 year after
such resignation, retirement, or separation. Violation of this rule shall be a ground
for administrative disciplinary action upon re-entry to the government service.
c. Complaint against any elective barangay official shall be filed before the
Sangguniang Panlungsod or Sangguniang Bayan concerned whose decision
shall be final and executory.
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b. Notice of hearing
1. Within 7 days after the administrative complaint is filed, the Office of the
President or the sanggunian concerned, shall require the respondent to submit
his verified answer within 15 days from receipt thereof, and commence the
investigation of the case within 10 days after receipt of such answer of
respondent.
c. Preventive suspension
1. Preventive suspension may be imposed by:
a. President: for respondent elective officials of a province, highly urbanized
city, independent component city
2. Penalties:
a. Suspension: It should not exceed the unexpired portion of the term of
respondent or a period of 6 months for every administrative offense.
g. Administrative appeals
1. Decisions by the Office of the President or sanggunian may, within 30 days
from receipt thereof, be appealed to the following:
a. Sangguniang Panlalawigan: for decisions of the sanggunian of
component cities and municipalities
3. Administrative Order No. 23 issued on December 17, 1992 prescribes the rules
and procedures applicable to administrative disciplinary cases filed against
elective local officials of provinces, highly urbanized cities, independent
component cities, component cities, and cities and municipalities in Metro
Manila.
a. The President shall act upon these complaints as Disciplining Authority and
he may act through the Executive Secretary.
RULE 1
PRELIMINARY PROVISIONS
Section 1. Coverage. — These rules and procedures shall apply to administrative disciplinary cases
filed against: (a) the governors, and members of the sangguniang panlalawigan; (b) the mayors, vice
mayors, and members of the sangguniang panlungsod of highly urbanized cities, independent
component cities, and component cities; and (c) the mayors, vice mayors, and members of the
sangguniang panlungsod or bayan of cities or municipalities in Metropolitan Manila.
Sec. 2. Disciplinary Authority. — All Administrative complaints, duly verified, against elective local
officials mentioned in the preceding Section shall be acted upon by the President. The President,
who may act through the Executive Secretary, shall hereinafter be referred to as the Disciplining
Authority.
Sec. 3. Investigating Authority. — The Secretary of the Interior and Local Government is hereby
designated as the Investigating Authority. He may constitute an Investigating Committee in the
Department of the Interior and Local Government (DILG) for the purpose.
RULE 2
GROUNDS FOR ADMINISTRATIVE DISCIPLINARY ACTION
Section 1. Grounds. — An elective local official may be disciplined, suspended, or removed from
office on any of the following grounds:
e) Abuse of authority;
f) Unauthorized absence for fifteen (15) consecutive working days in case of local chief executives
and four (4) consecutive sessions in the case of members of the sangguniang;
g) Application for, or acquisition of, foreign citizenship or residence of the status of an immigrant of
another country; and
h) Such other grounds as may be provided by the Local Government Code of 1991; Republic Act
No. 6713; Republic Act No. 3019; Administrative Code of 1987; Revised Penal Code; and all other
applicable general and special laws.
RULE 3
COMPLAINT
Section 1. How initiated. — An administrative case may be initiated by any private individual or any
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government officer or employee by filing a sworn written complaint against any elective local official
enumerated under Sec. 1, Rule I hereof. It may also be initiated motu proprio by the Office of the
President or any government agency duly authorized by law to ensure that local government units
(LGUs) act within their prescribed powers and functions.
Sec. 3. Where filed. — The complaint shall be filed with the Records Office, Office of the President,
Malacañang, Manila. However, for cases against elective officials of LGUs concerned outside
Metropolitan Manila, the complaint may be filed through the concerned Regional Director of the
DILG, who shall transmit the same to the Secretary of the Interior and Local Government, within
forty-eight (48) hours from receipt thereof. In this regard, the Regional Director concerned shall
authenticate all the pertinent documents presented to him.
Upon receipt of the said documents, the Secretary of the Interior and Local Government shall
transmit the same to the Office of the President, within forty-eight (48) hours from receipt of the
same.
b) the Metropolitan Manila Authority in the case of cities and municipalities in Metropolitan Manila;
and
Sec. 4. Filing fee. — A fee of Two Hundred Pesos (P200.00) shall be charged for every complaint
filed with the Office of the President, payable to the "Cashier, Office of the President."
Pauper complaints duly certified as such in accordance with the Rules of Court shall be exempted
from the payment of the filing fee.
RULE 4
ANSWER
Section 1. Notice. — Within seven (7) days after the complaint is filed, the Disciplining Authority shall
issue an order requiring the respondent to submit his verified answer within fifteen (15) days from his
receipt thereof. In the case of complaints filed through the DILG Regional Office, the said order shall
be coursed through the Secretary of the Interior and Local Government.
Sec. 3. Where filed. — The answer shall be submitted to the Records Office, Office of the President,
Manila. However, for cases against elective officials of LGUs concerned outside Metropolitan
Manila, the answer may be submitted through the concerned Regional Director of the DILG, who
shall transmit the same to the Secretary of the Interior and Local Government, within forty-eight (48)
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hours from receipt thereof. In this regard, the Regional Director concerned shall authenticate all the
pertinent documents presented to him.
Upon receipt of the above documents, the Secretary of the Interior and Local Government shall
transmit the same to the Office of the President, within forty-eight (48) hours from receipt of the
same.
a) the complainant;
c) the Metropolitan Manila Authority in the case of cities and municipalities in Metropolitan Manila;
and
Sec. 4. Failure to answer. — Unreasonable failure of respondent to file his verified answer within
fifteen (15) days from receipt of the complaint against him shall be considered as waiver of his right
to present evidence in his behalf.
RULE 5
PRELIMINARY INVESTIGATION
Section 1. Commencement. — Within forty-eight (48) hours from receipt of the answer, the
Disciplining Authority shall refer the complaint and answer, together with their attachments and other
relevant papers, to the Investigating Authority who shall commence the investigation of the case
within ten (10) days from receipt of the same.
Sec. 3. Evaluation. — Within twenty (20) days from receipt of the complaint and answer, the
Investigating Authority shall determine whether there is a prima facie case to warrant the institution
of formal administrative proceedings.
Sec. 4. Dismissal motu propio. — If the Investigating Authority determines that there is no prima
facie case to warrant the institution of formal administrative proceedings, it shall, within the same
period prescribed under the preceding Section, submit its recommendation to the Disciplining
Authority for the motu proprio dismissal of the case, together with the recommended decision,
resolution, and order.
Sec. 5. Preliminary conference. — If the Investigating Authority determines that there is prima facie
case to warrant the institution of formal administrative proceedings, it shall, within the same period
prescribed under the preceding section, summon the parties to a preliminary conference to consider
the following:
a) Whether the parties desire a formal investigation or are willing to submit the case for resolution on
the basis of the evidence on record; and
b) If the parties desire a formal investigation, to consider the simplification of issues, the possibility
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of obtaining stipulation or admission of facts and of documents, specifically affidavits and
depositions, to avoid unnecessary proof, the limitation of number of witnesses, and such other
matters as may aid the prompt disposition of the case.
The Investigating Authority shall encourage the parties and their counsels to enter, at any stage of
the proceedings, into amicable settlement, compromise and arbitration, the terms and conditions of
which shall be subject to the approval of the Disciplining Authority.
After the preliminary conference, the Investigating Authority shall issue and Order reciting the
matters taken up thereon, including the facts stipulated and the evidences marked, if any. Such
order shall limit the issues for hearing to those not disposed of by agreement or admission of the
parties, and shall schedule the formal investigation within ten (10) days from its issuance, unless a
later date is mutually agreed in writing by the parties concerned.
Sec. 6. Venue of hearing. — When the respondent is an elective official of a province or highly
urbanized city, the preliminary investigation as contemplated in this Rule shall be conducted in the
place where he renders or holds office. For all other local elective officials, the venue shall be the
place where the sanggunian concerned is located.
Sec. 7. 90-day ban. — No preliminary investigation shall be imposed within ninety (90) days
immediately prior to any local election.
RULE 6
PREVENTIVE SUSPENSION
a) provinces;
b) highly urbanized cities;
c) independent component cities; and
d) cities and municipalities in Metropolitan Manila.
The governor shall, upon the direct order of the Disciplining Authority, preventively suspend an
elective official of a component city, who is under formal administrative investigation by the Office of
the President.
Sec. 2. 90-day ban. — No preventive suspension shall be imposed within ninety (90) days
immediately prior to any local election. If the preventive suspension has been imposed prior to the
90-day period immediately preceding a local election, it shall be deemed automatically lifted upon
the start of aforesaid period.
Sec. 3. Grounds. — Preventive suspension may be imposed at any time after the issues are joined,
that is, after respondent has answered the complaint, when the evidence of guilt is strong and, given
the gravity of the offense, there is a great probability that the continuance in office of the respondent
could influence the witnesses or pose a threat to the safety and integrity of the records and other
evidence.
Sec. 4. Duration. — Any single preventive suspension of local elective officials shall not extend
beyond sixty (60) days; provided that, in the event that several administrative cases are filed against
an elective official, he cannot be preventively suspended for more than ninety (90) days within a
single year on the same ground or grounds existing and known at the time of the first suspension.
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Sec. 5. Automatic reinstatement. — Upon expiration of the preventive suspension, the suspended
elective official shall be deemed reinstated in office without prejudice to the continuation of the
proceedings against him, which shall be terminated within one hundred twenty (120) days from the
time he was formally notified of the case against him. However, if the delay in the proceeding of the
case is due to his fault, or request, other than the appeal duly filed, the duration of such delay shall
not be counted in computing the time of termination of the case.
RULE 7
FORMAL INVESTIGATION
Section 1. Procedural due process. — The respondent shall be accorded full opportunity to appear
and defend himself in person or by counsel, to confront and cross-examine the witnesses against
him, and to require the attendance of witnesses and the production of documents through the
compulsory process of subpoena or subpoena duces tecum.
Sec. 2. Who conducts the hearing. — The formal administrative investigation shall be conducted by
the Investigating Authority.
Sec. 3. Failure to commence formal investigation. — Unreasonable failure to commence the formal
investigation within the prescribed period in the preliminary conference order by the person or
persons assigned to investigate shall be aground for administrative disciplinary action.
Sec. 4. Power to take testimony or receive evidence. — The Investigating Authority is hereby
authorized to take testimony or receive evidence relevant to the administrative proceedings, which
authority shall include the power to administer oaths, summon witnesses, and require the production
of documents by subpoena duces tecum pursuant to Book 1, Chapter 9, Section 37 of the
Administrative Code of 1987.
Anyone who, without lawful excuse, fails to appear upon summons issued under authority of the
preceding paragraph or who, appearing before the Investigating Authority exercising the power
therein defined, refuses to make oath, give testimony or produce documents for inspection, when
lawfully required, shall be subject to discipline as in case of contempt of court and, upon application
by the Investigating Authority, shall be dealt with by the judge of the proper regional trial court in the
manner provided for under Book VII, Chapter 3, Section 13, in relation to Chapter 1, Section 2 (1), of
the Administrative Code of 1987.
Sec. 5. Notice of hearing. — The parties and their witnesses shall be notified by subpoena of the
scheduled hearing at least five (5) days before the date thereof, stating the date, time and place of
the hearing.
Sec. 6. Venue of hearing. — When the respondent is an elective official of a province or highly
urbanized city, the formal investigation as contemplated in this Rule shall be conducted in the place
where he renders or holds office. For all other local elective officials, the venue shall be the place
where the sanggunian concerned is located.
Sec. 7. Request for subpoena. — If a party desires the attendance of a witness or the production of
documents, he should make formally request for the issuance of the necessary subpoena or
subpoena duces tecum at least three (3) days before the scheduled hearing.
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Sec. 8. Postponement. — Postponement of investigation shall be discouraged and shall be allowed
only in meritorious cases, like illness of the parties or counsels and other similar case. No
postponement for a period longer than seven (7) days shall be allowed, and in no case shall the total
number of postponements for one party be more than twenty (20) days.
Sec. 9. Stenographic record of proceedings. — The testimony of each witness and the manifestation
of the parties and counsels during an investigation shall be taken in shorthand or stenotype. A
transcript of the proceedings made by the official stenographer or stenotypist and duly certified by
him shall be prima facie a correct statement of such proceedings.
Sec. 10. Order of hearing. — Unless otherwise directed by the Investigating Authority, the order of a
hearing shall be as follows:
b) The respondent shall then offer evidence in support of his defense; and
c) The parties may then respectively offer rebutting evidence, unless the Investigating Authority, for
good reasons and in the furtherance of justice, permits them to offer evidence upon their original
case.
Sec. 11. Order of Examination. — The order in which a witness may be examined shall be as follows:
Sec. 12. Termination of formal investigation. — The formal investigation of the case shall be
terminated by the Investigating Authority within ninety (90) days from the start thereof. Unreasonable
failure to complete the formal investigation after the said period by the person or persons assigned
to investigate shall be a ground for disciplinary action.
Sec. 13. Memoranda. — The Investigating Authority may allow the parties to submit their respective
memoranda, together with their respective draft resolutions and orders for consideration of the
Investigating Authority, within fifteen (15) days after the termination of the formal investigation.
RULE 8
EVIDENCE
a) The Investigating Authority may admit and give probative value to evidence commonly accepted
by reasonably prudent men in the conduct of their affairs;
b) Documentary evidence may be received in the form of copies or excepts, if the original is not
readily available. Upon request, the parties shall be given opportunity to compare the copy with the
original. If the original is in the official custody of a public officer, a certified copy thereof may be
accepted; and
c) The Investigating Authority may take notice of judicially cognizable facts and of generally technical
or scientific facts within it specialized knowledge. The parties shall be notified and afforded an
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opportunity to contest the facts so noticed.
Sec. 2. Marking. — All documentary evidence or exhibits shall be properly marked by letter (A, B, C,
etc.), if presented by the complainants, and by numbers (1, 2, 3, etc.), if presented by the
respondent. They shall be attached to the records or, if voluminous, kept in a separate folder marked
"Folder of Exhibits", which shall also be attached to the records.
RULE 9
REPORT OF INVESTIGATING AUTHORITY AND
TRANSMISSION OF RECORDS
b) the complete records with each page consecutively numbered and initialed by the custodian of
the records;
c) a summary of proceedings thereon from the filing of the complaint to the transmittal of the records
in chronological order indicating the action taken on the incidents involved; and
d) a list of all pleadings, motions, manifestations, annexes, exhibits, and other papers or documents
filed by the contending parties, as well as the corresponding orders or resolutions.
Such documents shall be forwarded to the Disciplining Authority within twenty (20) days —
a) from receipt of the last pleading and evidence, if any, in case the respondent does not elect a
formal investigation;
b) after the expiration of the period within which to submit the same; or after the termination of the
formal investigation; or
The transcript of the proceedings shall be paged consecutively and in chronological order, sewed on
the left-hand side, and properly indexed, showing the page on which the testimony of each witness
begins.
RULE 10
DECISION
Section 1. Rendition of decision. — Within thirty (30) days after receipt of the report of the
Investigating Authority and the transmittal of records, the Disciplining Authority shall render a
decision in writing stating clearly and distinctly the facts and reasons for such decision. Copies of
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said decision shall immediately be furnished the respondent and all interested parties.
Sec. 2. Finality of decision. — The decision of the Disciplining Authority shall become final and
executory after the lapse of thirty (30) days from receipt of a copy thereof by the complainant or the
respondent, as the case may be, unless a motion for reconsideration is filed within the said such
period. Save in exceptionally meritorious cases, only one motion for reconsideration by any one
party shall be allowed, which shall suspend the running of the 30-day reglementary period.
Sec. 3. Execution pending appeal. — An appeal shall not prevent a decision from becoming final or
executory. The respondent shall be considered as having been placed under preventive suspension
during the pendency of an appeal. In the event the appeal results in an exoneration, the respondent
shall be paid his salary and such other emoluments accruing during the pendency of the appeal.
RULE 11
PENALTIES
Section 1. Suspension or removal. — A respondent found guilty of any of the offenses enumerated
in Rule 2 hereof may be meted the penalty of suspension or removal depending on the evidence
presented and the aggravating or mitigating circumstances that may be considered by the
Disciplining Authority.
Sec. 2. Suspension. — The penalty of suspension shall not exceed the unexpired term of the
respondent, or a period of six (6) months for every administrative offense, nor shall said penalty be a
bar to the candidacy of the respondent so suspended as long as he meets the qualifications
required for the office.
Sec. 3. Removal. — An elective local official may be removed from office on the grounds
enumerated in Rule 2 hereof by order of the proper court or the Disciplining Authority whichever first
acquires jurisdiction to the exclusion of the other.
The penalty or removal from office as a result of an administrative investigation shall be considered a
bar to the candidacy of the respondent for any elective position.
RULE 12
EXECUTIVE CLEMENCY
RULE 13
MISCELLANEOUS PROVISIONS
Section 1. Effects and application of relevant laws. — This Administrative Order implements the
Local Government Code of 1991 and its Implementing Rules and Regulations approved and
adopted under Administrative Order No. 270 dated February 21, 1992; Book VI, Chapter 3, Sections
10-16 of the Administrative Code of 1983; and Executive Order No. 26 dated October 7, 1992. In all
matters not provided in this Administrative Order, the Rules of Court and the 1987 Administrative
Code shall apply in a suppletory character.
Sec. 2. Repeal. — Administrative Order No. 195 dated September 10, 1990, as amended by
Administrative Order No. 239 dated September 27, 1991, is hereby repealed.
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Sec. 3. Effectivity. — This Administrative Order shall take effect fifteen (15) days from publication in
the Official Gazette.
Respondents (Vice-Governor of Nueva Ecija and members of the Sangguniang Panlalawigan) filed
with the Office of the President a letter-complaint against petitioner (Governor of Nueva Ecija)
charging petitioner with grave misconduct and abuse of authority. They prayed for the suspension
or removal of petitioner.
Respondents alleged that while they were at a scheduled session of the Sangguniang Panlalawigan,
petitioner belligerently barged into the session hall, angrily kicked the door and chairs and uttered
threatening words at them while several armed men circled the area. Respondents claim that the
incident was an offshoot of their resistance to a pending legislative measure supported by petitioner
(that the province obtain a P150 million loan from PNB) and was intended to harass them into
approving the said legislative measure.
Upon instruction of the President, the DILG Secretary went to Nueva Ecija to settle the controversy.
The parties entered into a peace agreement but such failed, so
reiterated their letter-complaint against petitioner who was ordered to file his answer. After granting
petitioner’s request for extension to file an answer, the DILG informed him that his failure to submit
his answer would be considered a waiver to present evidence ex parte. The extensions consumed
55 days. Petitioner filed his answer 9 months after the notice.
The DILG Secretary issued an order declaring petitioner in default and having waived his right to
present evidence. Respondents were ordered to present evidence ex parte.
On recommendation of the DILG Secretary, the Executive Secretary issued an order, by authority of
the President, placing petitioner under preventive suspension for 60 days pending investigation.
Petitioner filed for certiorari and prohibition with the Court of Appeals challenging the order of
preventive suspension and default. The Court of Appeals dismissed the petition.
DILG denied petitioner’s motion to conduct formal investigation, declaring that the submission of
position papers substantially complies with the requirements of procedural due process in
administrative proceedings.
The Executive Secretary, by authority of the President, adopted the DILG Secretary’s findings and
recommendations and imposed on petitioner the penalty of suspension of 6 months without pay.
The denial of petitioner’s motion to conduct formal investigation is erroneous. Petitioner’s right to a
formal investigation is spelled out in Administrative Order No. 23. Section 5 thereof provides that at
the preliminary conference, the investigating authority shall summon the parties to consider whether
they desire a formal investigation. The investigating authority does not have the discretion whether
or not a formal investigation would be conducted. The records show that petitioner filed a motion
for formal investigation.
An erring elective official has rights akin to the constitutional rights of an accused. These rights are
essentially part of due process. He has the right to (a) appear and defend himself in person or by
counsel; (b) confront and cross-examine the witnesses against him; (c) compulsory attendance of
witness and the production of documentary evidence.
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These rights are reiterated in the implementing rules and regulations of the Local Government Code
and in Administrative Order no. 23. Petitioner formally claimed his right to a formal investigation
after his answer ad cautelam was admitted.
Petitioner’s right to a formal investigation was not satisfied when complaint against him was decided
on the basis of position papers. Administrative Order No. 23 states that the investigating authority
may require the parties to submit their respective memoranda but only after formal investigation and
hearing.
The jurisprudence cited by the DILG in its order denying petitioner’s motion for formal investigation
applies to appointive officials and employees. Administrative disciplinary proceedings against
elective or government officials are not exactly similar to those against appointive officials. Indeed,
the provisions applicable to these 2 groups are separate and distinct; generally, the Local
Government Code for elective officials and the Civil Service Law for appointive officials.
Rules on removal and suspension of elective officials are more stringent than those for appointive
officials. The procedure of requiring position papers in lieu of a hearing in administrative cases is
expressly allowed with respect to appointive officials but not to those elected.
Jurisdiction over administrative disciplinary action against elective officials is lodged in 2 authorities:
the disciplining authority and the investigating authority,
The disciplining authority is the President, whether acting by himself or through the Executive
Secretary. Administrative Order No. 23 delegates the power to investigate to the investigating
authority, which is the DILG Secretary, who may act by himself or constitute an investigating
committee, or the disciplining authority may designate a special investigating committee.
This is not undue delegation because the President remains the disciplining authority. What is
delegated is the power to investigate only. Moreover, the DILG’s power to investigate is based on
the alter-ego principle or the doctrine of qualified political agency.
b. Preventive suspension
1. Local chief executive may preventively suspend for a period not exceeding 60
days any subordinate official or employee under his authority pending
investigation if:
a. The charge involves dishonesty, oppression or grave misconduct or neglect
in the performance of duty; or
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2. Upon expiration of the preventive suspension, the suspended official or
employee shall be automatically reinstated without prejudice to continuation of
the proceedings against him.
3. If the delay in the proceedings is due to his fault, neglect or request, the time of
the delay shall not be counted in computing the period.
c. Administrative investigation
1. It may be conducted by a person or committee duly authorized by the local chief
executive. Findings and recommendations made must be submitted to the local
chief executive within 15 days from the end of the hearings conducted. A
decision shall be made within 90 days from the time the respondent is formally
notified of the charges.
d. Disciplinary jurisdiction
1. The local chief executive may impose the following penalties upon subordinate
officials and employees under his jurisdiction:
a. Removal from service;
b. Demotion in rank;
c. Suspension for not more than 1 year without pay;
d. Fine in an amount not exceeding 6 months’ salary;
e. Reprimand
2. If the penalty imposed is suspension without pay for not more than 30 days, his
decision shall be final.
3. If the penalty imposed is heavier than suspension of 30 days, the decision shall
be appealable to the Civil Service Commission, which shall decide the appeal
within 30 days from receipt thereof.
2. Their decisions shall be final in case the penalty imposed is suspension for not
more than 30 days or fine in an amount not exceeding 30 days’ salary.
3. Decisions of heads of office or bureau which are appealable to the Civil Service
Commission may be initially appealed to the department and finally to the
Commission.
a. The decision shall be executory pending appeal except when the penalty is
removal which shall be executory only after confirmation by the department
head concerned.
2. The Civil Service Commission has no authority to force the U.P. to dismiss a
member of its faculty even in the guise of enforcing Civil Service Rules (on
leaves). (University of the Philippines v. Civil Service Commission, 356 SCRA 57
(2000))
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3. The Commission is not a co-manager or surrogate administrator of government
offices and agencies as its functions and authority are limited to approving or
reviewing appointments to determine their concordance with the Civil Service
Law. (Chang v. Civil Service Commission, 191 SCRA 663 (1990))
b. Any person upon sworn written complaint. Complainant shall submit sworn
statements covering his testimony and those of his witnesses with his
documentary evidence.
1. If on the basis of such papers a prima facie case is not found to exist,
the disciplining authority shall dismiss the case.
b. The respondent is allowed not less than 72 hours after receipt of the
complaint to answer the charges in writing under oath, together with
supporting sworn statements and documents, in which he shall
indicate whether or not he elects a formal investigation if his answer
is considered unsatisfactory. If the answer is found satisfactory, the
disciplining authority shall dismiss the case.
d. The investigation shall be held neither earlier than 5 days nor later
than 10 days from the disciplining authority’s receipt of
respondent’s answer. The investigation shall be finished within 30
days from the filing of the charges, unless extended by the
Commission in meritorious cases.
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a. Appeals, where allowable, shall be made by the party adversely affected
within 15 days from receipt of the decision, unless a petition for
reconsideration is seasonably filed.
2. Notice of Appeal
a. It shall be filed with the disciplining office which shall forward the
records of the case and notice of appeal to the appellate authority
within 15 days from the filing of the notice of appeal, with its
comments, if any.
The approving officer shall have 10 days from the submission of the
recommendation to decide the case or incident.
d. Every officer charged with the resolution of cases or incidents shall submit
to his immediate superior within 10 days following the end of every month a
Sworn Statement of Disposition of Cases stating all cases or incidents
submitted to him for resolution and which have been decided during the
prescribed period.
e. Only one motion for reconsideration is allowed which shall be decided within
15 days from submission for resolution. No other motion is allowed except
the motion for reconsideration and opposition to it.
f. Cases and incidents pending resolution upon the effectivity of the E.O. shall
be decided within 30 days from the E.O.’s effectivity.
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g. The salary of any officer who fails to submit the Statement of Disposition of
Cases within the prescribed period shall be held by his superior until the
said officer complies with paragraph (d) above, without prejudice to
imposition of other appropriate penalties as provided by law.
2. Abbreviation of proceedings
a. All administrative agencies are directed to adopt and include in their
respective Rules of Procedure the following proceedings:
1. Rules encouraging parties and their counsels to enter into amicable
settlement, compromise and arbitration.
3. Applicability
a. These rules shall apply to government agencies including any department,
bureau, board, office, commission, authority or officer of the National
Government authorized by law or executive order to adjudicate cases.
b. These rules shall not apply to Congress, the Judiciary, the Constitutional
Commissions, military establishments in all matters relating to the Armed
Forces Personnel, Board of Pardons and Parole, and state universities and
colleges.
2. Hear and decide cases brought before it by officers and employees who feel
aggrieved by the determination of appointing authorities involving personnel
action and violation of the merit systems. The decision of the Board is final
except those involving division chiefs or officials of higher ranks which may be
appealed to the Commission.
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4. Administer oaths, issue subpoena duces tecum, take testimony in any
investigation or inquiry, punish for contempt in accordance with the same
procedures and penalties prescribed in the Rules of Court.
5. Promulgate rules and regulations to carry out the functions of the Board subject
to the approval of the Commission.
3. It has been held, however, that under the decree, the Commission has no
appellate jurisdiction over the Board’s decision exonerating officers and
employees from administrative charges as the said law does not contemplate a
review of the said decisions.
4. The right to appeal is a mere statutory privilege and may be exercised only in
the manner and in accordance with the provisions of law.
5. The remedy of appeal may be availed of only in a case where the respondent
public officer or employee is found guilty of the charge against him.
3. Preventive suspension does not violate the constitution as it is not a penalty and
the officer is still entitled to the presumption of innocence since his culpability
must still be established.
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4. If the investigation is not finished and a decision is not rendered within that
period, the suspension will be lifted and respondent will be automatically
reinstated.
3. It is not enough that the employee is exonerated of the charges against him. His
suspension must be unjustified.
4. Republic Act No. 6715 expressly provides for the payment of private employees
of full backwages, inclusive of allowances and other benefits from the time of
suspension to reinstatement. In the case of public employees, the provision for
payment of salaries during preventives suspension pending investigation has
been deleted.
“Any public officer against whom any criminal prosecution under a valid information under this Act or
under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended
from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in the meantime administrative
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proceedings have been filed against him.” (Republic Act No. 3019, Section 13)
1. Section 13 of Republic Act No. 3019 provides that the accused public official
shall be suspended from office while the criminal prosecution is pending in
court. The term “office” applies to any office which the officer charged might
concurrently be holding and not necessarily the particular office under which he
was charged.
3. The law does not require that the guilt of the accused must be established in a
pre-suspension proceeding to determine (1) the strength of evidence of
culpability, (2) the gravity of the offense charged, (3) whether or not his
continuance in office would influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence before the court could
have a valid basis in decreeing preventive suspension pending the trial of the
case.
g. Duration of suspension
1. Suspension may not be for an indefinite period or for an unreasonable length of
time. The duration of preventive suspension is co-equal with the period
prescribed for deciding administrative disciplinary cases. If the case is decided
before 90 days, then the suspension will last less than 90 days. But if the case
is not decided within 90 days, then the suspension may not exceed the
maximum period of 90 days.
2. When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period
of 90 days after the date of suspension of the respondent who is not a
presidential appointee, the respondent shall be automatically reinstated in the
service. However, the period may be interrupted when the delay in the
disposition of the case is the respondent’s fault.
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“Upon the filing of a complaint or information sufficient in form and substance against a member of
the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day or more,
the court shall immediately suspend the accused from office until the case is terminated. Such case
shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment
of the accused.” (Republic Act No. 6975, Section 47)
1. The suspension from the office of a member of the Philippine National Police
charged with a grave offense, where the penalty is 6 years and 1 day or more,
shall last until the termination of the case. The suspension cannot be lifted
before the termination of the case although trial is not terminated within the
period.
(2) By the governor, if the respondent is an elective official of a component city or municipality; or
(b) Preventive suspension may be imposed at any time after the issues are joined, when the
evidence of guilt is strong, and given the gravity of the offense, there is great probability that the
continuance in office of the respondent could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence: Provided, That, any single preventive suspension of
local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event
that several administrative cases are filed against an elective official, he cannot be preventively
suspended for more than ninety (90) days within a single year on the same ground or grounds
existing and known at the time of the first suspension.
(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings against him, which shall
be terminated within one hundred twenty (120) days from the time he was formally notified of the
case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or
request, other than the appeal duly filed, the duration of such delay shall not be counted in
computing the time of termination of the case.
(d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of
authority.” (Republic Act No. 7160, Section 63)
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3. It is also intended to limit the period of suspension that may be imposed by the
mayor, a governor, or the President, who may be motivated by partisan political
consideration. In contrast, the Ombudsman, who can impose a longer period, is
not likely to be similarly motivated by partisan political consideration.
“The Ombudsman or his Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the
charge against such officer or employee involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition
of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided.” (Republic Act No. 6770, Section 24)
1. Under Section 24 of Republic Act No. 6770, the Ombudsman may suspend,
under certain conditions, any officer or employee under his authority pending an
investigation and the preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman, but not more than 6 months
without pay, except when the delay in the disposition of the case is due to his
fault, in which case, the period of the delay shall not be counted in computing
the period. The longer period was meant to meaningfully implement the
authority of the Ombudsman.
“Any public officer against whom any criminal prosecution under a valid information under this Act or
under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended
from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in the meantime administrative
proceedings have been filed against him.” (Republic Act No. 3019, Section 13)
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1. The order of suspension prescribed under Section 13 of Republic Act No. 3019
is distinct from the power of Congress to discipline its own ranks under Section
16(3), Article VI of the Constitution. The suspension contemplated under the
relevant provision of the Constitution is a punitive measure imposed upon
determination by the Senate or House or Representatives upon an erring
member.
2. The suspension under Section 13, Republic Act No. 3019 is not a penalty, but a
preliminary, preventive measure that may be imposed for misbehavior on a
respondent as a Member of Congress.
2. When the suspension of a public officer is to continue until the final disposition
of a criminal prosecution, it becomes a virtual removal. (Lacson v. Roque, 92
Phil. 456 (1952))
b. As to nature
1. Preventive suspension is not a penalty but a mere protective measure so that
the officer or employee who is charged may be separated from the scene of his
alleged misfeasance while the same is being investigated to insure proper and
impartial conduct of an investigation. Preventive suspension is distinct from the
administrative penalty of removal from office.
c. As to time of imposition
1. Suspension, not being a penalty, may be imposed pending investigation.
Removal, being a penalty, is meted upon termination of the investigation or final
termination of the case.
2. Suspension from 6 months and 1 day to 1 year for the first offense, and
dismissal for the second offense
a. Oppression
b. Disgraceful and immoral conduct
c. Inefficiency and incompetence in the performance of official duties
d. Frequent, unauthorized absences and tardiness in reporting for duty, loafing
or frequent unauthorized absences from duty during regular office hours
e. Refusal to perform official duty
f. Gross insubordination
g. Conduct grossly prejudicial to the best interest of service
h. Owning, controlling, managing or accepting employment as officer,
employee, consultant, counsel, broker, agent, trustee, or nominee in any
private enterprise regulated, supervised, or licensed by his office
i. Engaging in the private practice of profession, unless authorized by the
Constitution
j. Disclosing or misusing confidential or classified information officially know
to him by reason of his office and not made available to the public
k. Obtaining or using any statement filed under the Code of Conduct and
Ethical Standards for Public Officials and Employees for any purpose
contrary to morals or public policy
2. For offenses under Republic Act No. 6713, only one penalty shall be imposed
for each case.
f. Accessory penalties
1. Dismissal shall carry with it that of cancellation of eligibility, forfeiture of leave
credits and retirement benefits and disqualification for re-employment in
government service.
2. Forced resignation shall carry with it forfeiture of leave credits and retirement
benefits and disqualification for employment in the government for a period of 1
year.
3. The fact that a public officer or employee has already been administratively
penalized is not a bar to his conviction under general penal laws.
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disabilities imposed upon officers or employees in disciplinary cases, subject to
such terms and conditions as he may impose in the interest of service.
2. Crimes committed by public officers and employees embraced in Title VIII of the
Revised Penal Code (e.g., bribery, malversation of public funds);
4. Civil and criminal cases filed pursuant to and in connection with Executive
Orders No. 1, 2, 14 and 14-a issued in 1986.
e. Philippine army and air force colonels, naval captains and all officers of
higher rank
g. City and provincial prosecutors in the office of the Ombudsman and special
prosecutor
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i. Members of Congress and officials thereof classified as Grade “27” or
higher
l. All other national and local officials classified as Grade “27” or higher
b. When there is no allegation that the offense charges was connected with the
discharge of the duties or functions of a public officer (i.e., there must be a
direct relation between the crime and the office, and the offense cannot
exist without the office)
Effective February 2, 1987 or upon the ratification of the 1987 Philippine Constitution, the Special
Prosecutor became a mere subordinate of the Ombudsman. The former can investigate and
prosecute cases only if instructed to do so by the latter. The Special Prosecutor has no authority to
conduct preliminary investigations and to direct the filing of criminal cases except upon orders of the
Ombudsman.
Under the Anti-Graft Law, "a public officer includes elective and appointive officials and employees,
permanent or temporary, whether in the unclassified or classified or exempted service receiving
compensation, even nominal, from the government."
Petitioner, an Assistant Manager of the Treasury Division and Head of the Loans Section of the
Philippine National Construction Corporation (PNCC), is not a public officer within the purview of the
Anti-Graft Law. PNCC has no original charter and was incorporated under the general law on
corporations. Hence, the Sandiganbayan has no jurisdiction over him. The only instance where a
private individual may be charged before the Sandiganbayan is when he/she is indicted as a co-
principal, accomplice or accessory of a public officer with a crime cognizable by the Sandiganbayan.
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Lacson vs. Executive Secretary, et. al. (301 SCRA 298 (1999])
Section 4 [of R.A. No. 8249] requires that the offense charged must be committed by the offender in
relation to his office in order for the Sandiganbayan to have jurisdiction over it. This jurisdictional
requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated
that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public officers
and employees, including those in government-owned or controlled corporations, "in relation to their
office as may be determined by law." This constitutional mandate was reiterated in the new (1987)
Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function
and exercise its jurisdiction as now or hereafter may be provided by law.
We held that an offense is said to have been committed in relation to the office if it (the offense is
"intimately connected" with the office of the offender and perpetrated while he was in the
performance of his official functions. This intimate relation between the offense charged and the
discharge of his official duties "must be alleged in the information."
In Sanchez v. Demetriou, the court ruled that the public office must be a constituent element of the
crime as defined in the statute before the Sandiganbayan could acquire jurisdiction over a case.
Indeed, murder and homicide will never be the main function of any public office. No public office
will ever be a constituent element of murder. When then would murder or homicide, committed by a
public officer, fall within the exclusive and original jurisdiction of the Sandiganbayan? People v.
Montejo provides the answer. The Court explained that a public officer commits an offense in
relation to his office if he perpetrates the offense while performing, though in improper or irregular
manner, his official functions and he cannot commit the offense without holding his public office. In
such a case, there is an intimate connection between the offense and the office of the accused. If
the information alleges the close connection between the offense charged and the office of the
accused, the case falls within the jurisdiction of the Sandiganbayan. People v. Montejo is an
exception that Sanchez v. Demetriou recognized.
The information accused Crisostomo of murdering a detention prisoner, a crime that collides directly
with Crisostomo's office as a jail guard who has the duty to insure the safe custody of the prisoner.
Crisostomo's purported act of killing a detention prisoner, while irregular and contrary to
Crisostomo's duties, was committed while he was performing his official functions.
Esteban vs. Sandiganbayan, et. al. (G.R. Nos.146646-49, March 11, 2005)
An offense is said to have been committed in relation to the office if the offense is "intimately
connected" with the office of the offender and perpetrated while he was in the performance of his
official functions. This intimate relation between the offense charged and the discharge of the
official duties must be alleged in the information. This is in accordance with the rule that the factor
that characterizes the charge is the actual recital of the facts in the complaint or information. Hence,
where the information is wanting in specific factual averments to show the intimate
relationship/connection between the offense charged and the discharge of official functions, the
Sandiganbayan has no jurisdiction over the case.
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Petitioner, as Presiding Judge of MTCC, Branch 1, Cabanatuan City, is vested with the power to
recommend the appointment of Ana May Simbajon as bookbinder. As alleged in the Amended
Informations, she was constrained to approach petitioner as she needed his recommendation. But
he imposed a condition before extending such recommendation - she should be his girlfriend and
must report daily to his office for a kiss. There can be no doubt, therefore, that petitioner used his
official position in committing the acts complained of. While it is true, as petitioner argues, that
public office is not an element of the crime of acts of lasciviousness, nonetheless, he could not have
committed the crimes were it not for the fact that as the Presiding Judge, he has the authority to
recommend her appointment as bookbinder. In other words, the crimes allegedly committed are
intimately connected with his office.
People vs. Sandiganbayan, et. al. (G.R. Nos. 147706-07, February 16, 2005)
It is not disputed that the Sandiganbayan has jurisdiction over presidents, directors or trustees, or
managers of government-owned or controlled corporations with original charters whenever charges
of graft and corruption are involved. However, a question arises whether the Sandiganbayan has
jurisdiction over the same officers in government-owned or controlled corporations organized and
incorporated under the Corporation Code.
2. Direct any such official, etc. to perform or expedite any act or duty required by
law, or to stop, prevent and correct any abuse or impropriety in the performance
of duties;
3. Direct the officer concerned to take appropriate action against a public official or
employee at fault and recommend his removal, suspension, demotion, fine,
censure or prosecution, and endure compliance therewith; and
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4. Determine the causes of inefficiency, red tape, mismanagement, fraud and
corruption in the government.
2. Exceptions:
a. Officials removable by impeachment
b. Members of Congress
c. Members of the Judiciary
3. The Office of the Ombudsman is the only body authorized to investigate even
officials removable by impeachment.
The clause "illegal act or omission of any public official" encompasses any crime committed by a
public official or employee. Its reach is so vast that there is no requirement that the act or omission
be related to or be connected with the performance of official duty.
This power of investigation granted to the Ombudsman ... and the Ombudsman Act is not exclusive
but is shared with other similarly authorized government agencies, such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. [As regards public school teachers], by virtue
of the Magna Carta for Public School Teachers, original jurisdiction belongs to the school
superintendent. The intention of the law, which is to impose a separate standard and procedural
requirement for administrative cases involving public school teachers, must be given consideration.
Hence, the Ombudsman must yield to this committee of the Division School Superintendent.
In the exercise of his duties, the Ombudsman is given full administrative disciplinary authority. His
power is not limited merely to receiving, processing complaints, or recommending penalties. He is
to conduct investigations, hold hearings, summon witnesses, and require production of evidence
and place respondents under preventive suspension. This includes the power to impose the penalty
of removal, suspension, demotion, fine, or censure of a public officer or employee.
That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman
to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that
the Ombudsman's "recommendation" is not merely advisory in nature but is actually mandatory
within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the
authority of the head of office or any officer concerned. By stating therefore that the Ombudsman
"recommends" the action to be taken against an erring officer or employee, the provisions in the
Constitution and in R.A. No. 6770 intended that the implementation of the order be coursed through
the proper officer.
It is likewise apparent that under R.A. No. 6770, the lawmakers intended to provide the Office of the
Ombudsman with sufficient muscle to ensure that it can effectively carry out its mandate as
protector of the people against inept and corrupt government officers and employees. The Office
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was granted the power to punish for contempt in accordance with the Rules of Court. It was given
the disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies (with the exception only of impeachable officers,
members of Congress and the Judiciary). Also, it can preventively suspend any officer under its
authority pending an investigation when the case so warrants.
Office of the Ombudsman vs. Beltran (G.R. No. 168039, June 5, 2009)
The provision in R.A. 6770 taken together reveal the manifest intent of the lawmakers to bestow on
the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the
entire gamut of administrative adjudication which entails the authority to, inter alia, receive
complaints, conduct investigations, hold hearings in accordance with the rules of procedure,
summon witnesses and require the production of documents, place under preventive suspension
public officers and employees pending an investigation, determine the appropriate penalty
imposable on erring public officers or employees as warranted by the evidence, and, necessarily,
impose the said penalty.
Hence, the full administrative disciplinary authority of the Office of the Ombudsman, including the
power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a
public officer or employee found to be at fault, is beyond contestation.
Ombudsman vs. Court of Appeals, et. al. (G.R. 167844, November 2, 2006)
In our recent ruling in Office of the Ombudsman v. Court of Appeals, we reiterated Ledesma and
expounded that taken together, the relevant provisions of R.A. No. 6770 vested petitioner with "full
administrative disciplinary authority" including the power to "determine the appropriate penalty
imposable on erring public officers or employees as warranted by evidence, and, necessarily,
impose the said penalty.
We see no reason to deviate from these rulings. They are consistent with our earlier observation that
unlike the "classical Ombudsman model" whose function is merely to "receive and process the
people's complaints against corrupt and abusive government personnel," the Philippine
Ombudsman - as protector of the people, is armed with the power to prosecute erring public officers
and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt
practices and such other offenses that may be committed by such officers and employees. The
legislature has vested him with broad powers to enable him to implement his own actions.
Ombudsman, et al vs. Valera, et al. (G.R. No. 164250, September 30, 2005)
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any public officer or employee when such an act or
omission appears to be illegal, unjust, improper, or inefficient... On the other hand, ...the Office of the
Special Prosecutor is merely a component of the Office of the Ombudsman and may act only under
the supervision and control and upon the authority of the Ombudsman. ... Supervision means
overseeing or the power or authority of an officer to see that subordinate officers perform their
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duties. Control means the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the
former for that of the latter.
The Ombudsman, pursuant to his power of supervision and control over the Special Prosecutor,
may authorize the latter to conduct administrative investigation. While R.A. No. 670 accords the
Special Prosecutor the same rank as that of the Deputy Ombudsman, Section 24 thereof expressly
grants only to the Ombudsman and the Deputy Ombudsmen the power to place under preventive
suspension government officials and employees under their authority pending an administrative
investigation. However, if the Ombudsman delegates his authority to conduct administrative
investigation to the Special Prosecutor and the latter finds that the preventive suspension of the
public official or employee subject thereof is warranted, the Special Prosecutor may recommend to
the Ombudsman to place the said public officer or employee under preventive suspension.
Carabeo vs. Court of Appeals (G.R. No. 178000 and 178003, December 4, 2009)
Settled is the rule that prior notice and hearing are not required in the issuance of a preventive
suspension order, such suspension not being a penalty but only a preventive measure - a
preliminary step in an administrative investigation. If after such investigation, the charges are
established and the person investigated is found guilty of acts warranting his removal, then he is
removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspecting an
officer pending his investigation and before the charges against him are heard and be given an
opportunity to prove his innocence. There is nothing in the law, especially Section 24 or R.A. No.
6770 or The Ombudsman Act of 1989, which requires that notice and hearing precede the
preventive suspension of an erring public official. Also, while a preventive suspension order may
originate from a complaint, the Ombudsman is not required to furnish the respondent with a copy of
the complaint prior to ordering a preventive suspension.
Under Section 24 of RA 6770, two requisites must concur to render the preventive suspension order
valid. First, there must be a prior determination by the Ombudsman that the evidence of
respondent's guilt is strong. Second, (a) the offense charged must involve dishonesty, oppression,
grave misconduct, or neglect in the performance of duty; (b) the charges would warrant removal
from the service; or (c) the respondent's continued stay in office may prejudice the case filed against
him.
Espinosa, et al. vs. Office of the Ombudsman (343 SCRA 744 [2000])
The Office of the Ombudsman has the sole power to "investigate and prosecute on its own or on
complaint by any person, any act or omission of any public officer or employee , office, or agency,
when such act or omission appears to be illegal, unjust, improper, or inefficient." The Court has
refused to interfere with the Office of the Ombudsman in disapproving the findings of its special
prosecutors, promulgating its own rules of procedure, summarily dismissing complaints without
going through preliminary investigation, issuing orders without giving parties a prior oral hearing, and
even dismissing criminal cases filed against "a series of nine City Prosecutors who tossed the
responsibility of conducting a preliminary investigation to each other with contradictory
recommendations, 'ping-pong' style," among others.
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Alberto!C.!Agra,!Ateneo!Law!School
The Court will likewise refuse to interfere in the instant case. The power to withdraw the information
already filed is a mere adjunct or consequence of the Ombudman's overall power to prosecute. It is
subject of course, to the approval of the Sandiganbayan. As with any other criminal case, once the
same has been filed with the court, it is that court, and no longer the prosecution, which has full
control of the case so much so that the information may not be dismissed without the approval of
that court.
Khan, Jr. vs. Ombudsman e. al, (G.R. No. 125296, July 20, 2006)
Based on [Article Xi, Section13 (2) of the 1987 Constitution, the Office of the Ombudsman exercises
jurisdiction over public officials/employees of GOCCs with original charters. This being so, it can
only investigate and prosecute acts or omissions of the officials/employees of government
corporations. Therefore, although the government later on acquired the controlling interest in PAL,
the fact remains that the latter, did not have an "original charter" and its officers/employees could
not be investigated and/or prosecuted by the Ombudsman.
In Juco v. National Labor Relations Commission, we ruled that the phrase "with original charter"
means "chartered by special law as distinguished from corporations organized under the
Corporation Code." PAL, being originally a private corporation seeded by private capital and
created under the general corporation law, does not fall within the jurisdictional powers of the
Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of
authority to investigate or prosecute petitioners.
31. By impeachment
a. Impeachable officials
1. Officers removable by impeachment:
a. President
b. Vice-president
c. Members of the Supreme Court
d. Members of the Constitutional Commissions
e. Ombudsman
b. Offenses covered:
1. Culpable violation of the Constitution
2. Treason
3. Bribery
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust
Section 3(5), Article XI 0f the 1987 Constitution states that, "no impeachment proceedings shall be
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initiated against the same official more than one within a period of one year." "The term "to initiate'
refers to the filing of the impeachment complaint coupled with Congress' taking initial action of the
said complaint. Since Sections 16 and 17 of Rule V of the House of Impeachment Rules provide for
a different meaning to the word "to initiate," the said provisions are unconstitutional. The fact that
under Section 3(8), Article XI, the Congress is given the power to promulgate its own rules on
impeachment does not give the House an absolute rule making power. Such power is limited by the
phrase "to effectively carry out the purpose of this section."
The question of whether or not the second impeachment complaint filed against Chief Justice
Davide, three months after the first complaint, is subject to judicial review. The reliance of the
respondents to US v. Nixon is unavailing. There are two major differences between the U.S. and the
Philippine Constitution. "First, the power of judicial review is impliedly granted to the U.S. Supreme
Court and is discretionary in nature while under the Philippine Constitution, the same is not only a
power but a duty under the court's expanded jurisdiction. Second, the U.S. Constitution did not
provide any limitations in thepower of the members of the House of Representatives in initiating
impeachment cases filing, required vote to impeach and the one year ban rule."
"impeachment is primarily for the protection of the people as a body politic, and not for the
punishment of the offender." The simultaneous referral of the two impeachment complaints against
petitioner to the House of Representatives Committee on Justice does not violate the one-year ban
rule.
"The filing of an impeachment complaint is like the lighting of a matchstick. Lighting the matchstick
alone, however, cannot light up the candle, unless the lighted matchstick reaches or torches the
candle wick. Referring the complaint to the proper committee ignites the impeachment proceeding.
With a simultaneous referral of multiple complaints filed, more than one lighted matchsticks light the
candle at the same time. What is important is that there should only be one candle that is kindled in
a year, such that once the candle starts burning, subsequent matchsticks can no longer rekindle the
candle."
Meanwhile, an impeachment complaint need not alleged only one impeachable offense. The 1987
Constitution allows indictment for multiple impeachment offenses provided that each charge must
represent an article of impeachment.
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3. By abolition of office
a. Authority with power to abolish
1. Congress may abolish any office it creates without infringing upon the rights of
the officer or employee concerned
2. The President pursuant to a valid delegation of power
3. Local governments when said power has been delegated to them
4. By the people themselves when they amend the Constitution
Removal Abolition
There is an office with an occupant who would After abolition, there is no more occupant as
thereby lose his position. there is no more office.
The position subsists and the incumbent is The right to security of tenure does not exist in a
merely separated therefrom. non-existent office.
The Placement Bureau was abolished by Congress and a National Employment Service (NES) was
created. The Act provides the transfer of “qualified personnel” from the abolished bureau to the
NES.
The President designated Quitoriano as the Acting Commissioner of the Service. Manalang, the
director of the Placement Bureau assailed such designation as illegal and equivalent to his removal
from office without just cause.
The Court ruled that the abolition of the Placement Bureau did not constitute the removal of
Manalang without just cause. Removal implies that an office exists after the ouster. This does not
apply in this case because the office of the director ceased to exist upon the abolition of the entire
bureau.
Right to office is extinguished by its abolition. Manalang’s right to the office of the director of the
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Alberto!C.!Agra,!Ateneo!Law!School
bureau was necessarily extinguished by the abolition of the bureau. The constitutional mandate to
the effect that “no officer or employee in the Civil Service shall be removed or suspended except for
cause as provided by law” is not in point for there has been neither a removal nor a suspension, but
an abolition of Manalang’s former office which is within the power of Congress to undertake.
“Qualified personnel” were transferred to a new office. A transfer connotes that the NES is different
and distinct from the Placement Bureau. Congress would have directed the retention of the
qualified personnel if the NES were a mere enlargement of the Placement Bureau.
In common parlance, the word “personnel” is used generally to refer to the subordinate officials or
clerical employees of an office or enterprise, not to the managers, directors or heads thereof.
3. Where the functions of the old office were taken over by the new office created
to replace it, which new office also took over the functions of other offices that
had been likewise absorbed by it. (Manalang v. Quitoriano, 94 Phil. 903 (1954))
The Municipal Board approved an ordinance abolishing 15 positions in the City Mayor’s office and
17 positions in the Office of the Municipal Board, including those occupied by Briones.
The abolition of the positions was invalid for having been made without the approval of the
Department Head as required by Executive Order No. 56. The grounds of economy and efficiency
on which the Municipal Board relied for abolishing the positions were false, such that the abolition
was a subterfuge for the removal of the incumbents without cause. The creation of 35 new positions
belied the reasons for the abolition and was done in violation of civil service laws in pursuit of
personal or political reasons.
8. By conviction of a crime
a. When the conviction of a crime carried with it the penalties of temporary or
perpetual absolute / special disqualification, termination of official relations results
because one of the effects of the imposition of said penalties under Articles 30 and
31 of the Revised Penal Code is the deprivation of public office or employment
which the offender may have held.
Consigna, a property clerk, was acquitted of the crime of malversation of government property. The
fiscal moved for a reconsideration of the portion of the decision ordering petitioner’s reinstatement
and the payment of his salary during his suspension. The fiscal invoked the Civil Service
Commission’s decision on the administrative case filed against Consigna which found him guilty of
gross negligence and ordered his removal from office.
Finding the motion partly well-taken, the court eliminated the part of its decision which directed of
the payment of salary during the period of his suspension, but left undisturbed the part which
ordered the petitioner’s reinstatement.
The trial court, besides acquitting Consigna for absolute lack of evidence, had the authority to order
his reinstatement. The decision of the Civil Service Commission is not binding upon the courts.
Where the accused was acquitted of the crime of malversation, reinstatement should follow. Had
Consigna been convicted, he would have been denied the right to reinstatement. Conversely,
reinstatement should follow acquittal.
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Daleon case (cited in the Consigna case)
The court’s powers extend only to the finding of guilt or innocence of the accused and not the
payment of back salaries and reinstatement because his right to the same was not involved in the
case. In a criminal action for malversation, where the accused is acquitted, the trial court is without
the power to order the payment of his salary during the period of his suspension. The reason is that
the only issue joined by the plea of not guilty is whether or not the accused committed the crime
charged in the information. In such a case, the only judgment that the court is legally authorized to
render is either one of acquittal or of conviction with the indemnity to the injured party and the
accessory penalties provided for by law.
While an accused acquitted of malversation may claim payment of back salaries during the period of
his suspension and reinstatement, his relief lies not in the same criminal case wherein he is
acquitted, but the proper administrative or civil action prescribed by law.
c. Since civil, administrative and criminal cases against a public officer are separate,
distinct, and can prosper independently from each other, lack or absence of proof
beyond reasonable doubt in a criminal case does not mean the absence of other
evidence which may be deemed adequate in civil cases (preponderance of
evidence) or administrative proceedings (substantial evidence).
b. Pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction although such pardon restores
his eligibility to appointment for the same office. It merely removes the
disqualification from holding public employment.
c. The person pardoned may apply for reappointment to the office which was forfeited
by reason of his conviction and undergo the usual procedure required for a new
appointment.
d. Pardon does not extinguish the civil liability of the grantee arising from the crime of
which he has been convicted.
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Alberto!C.!Agra,!Ateneo!Law!School
11. By recall
a. It is the procedure by which an elective official may be removed at any time during
his term by the vote of the people at an election called for such purpose or at a
general election.
2. There shall be a preparatory recall assembly in every province, city, district, and
municipality which shall be composed of the following:
a. Provincial level – all mayors, vice-mayors and sanggunian members of the
municipalities and component cities
b. City level – all youth barangay and sangguniang barangay members in the
city
c. Legislative district level – in cases where the sangguniang panlalawigan
members are elected by district, all elective municipal officials in the district;
and in cases where sangguniang panlungsod members are elected by the
district, all elective barangay officials in the district
d. Municipal level – all punong barangay and sangguniang barangay members
in the municipality
4. 25% of the total number of registered voters in the local government unit
concerned may petition for the initiation of the recall.
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a. A written petition for recall must be duly signed before the election registrar
or his representative, in a public place
1. in the presence of the petitioner / representative
2. Representative of the official sought to be recalled
3. Filed before the COMELEC
4. COMELEC or its duly authorized representative shall cause publication of
the petition in a public and conspicuous place for not less than 10 days but
not more than 20 days for the purpose of verification
c. Election on recall
1. COMELEC shall set the date of the election after the filing of resolution or
petition not later than:
a. 30 days in the case of barangay, city or municipal officials
b. 45 days in the case of provincial officials
d. Effectivity of recall
1. The recall of an elective local official shall be effective only upon the election and
proclamation of a successor who garners the highest number of votes during
the election on recall. If the official sought to be recalled wins, he shall continue
in office.
f. Limitations on recall
1. Any elective local official may be the subject of a recall election only once during
his term of office for loss of confidence.
2. No recall shall be held within 1 year from the date of the official’s assumption of
office or 1 year immediately preceding a regular local election.
Claudio was the duly elected Mayor of Pasay City in the May 11, 1998 elections. He assumed office
on July 1, 1998.
During the second week of May 1999, the chairpersons of several barangays in Pasay City gathered
to discuss the possibility of filing a petition for recall against Mayor Claudio for loss of confidence.
On May 19, 1999, several barangay chairs formed an ad hoc committee for the purpose of covering
the Preparatory Recall Assembly (PRA).
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School