The Pub Off Reviewer

PUBOF A2007Page 1 of 44

PUBLIC OFFICERS

I. Introduction

a. Definition

Public Office

People of the Phils V. Roger Posadas

FACTS: Posadas was appointed chancellor of UP Diliman, as such, he formed Task Force TMC which later on entered into a MOA with PDS/PTAF where he projects of Task Force TMC was to be funded by Canadian Development Agency. Later on, Posadas, after he and other officials were granted authority to travel to China, he appointed Vice-Chancellor Dayco as OIC of UP Dil from Oct 5 to Nov 5, 2006 when he’s supposed to return but it was extended for another day. Incidentally, on the extended day, Dayco designated Posadas as Project Director of TMC Project, and then as consultant to same project. Both appointments made retroactive to Sept 18, 1995. Later, COA auditor issued notice of suspension noting several deficiencies in the payments to the personnel of TMC. A tribunal was constituted to hear admin complaint against Posadas and Dayco for “Grave Misconduct and Abuse of Authority”, which recommended dismissal of the respondents, but modified by Board of Regents to forced penalty. On the basis of the BOR’s decision, a criminal case was filed against Posadas and Dayco for violation of Sec 3(e) of RA 3019 and 7(b) of RA 6713.

HELD: Guilty in both charges. Under Sec 3(e) of RA 3019 and 7(b) of RA 6713, the accused is a public officer who discharges administrative, judicial or official functions. In this case, there is no dispute that Posadas and Dayco are public officers. Posadas being the Chancellor and a faculty member, while Dayco was Vice-Chancellor for Administration and the OIC of the Office of the Chancellor.

There was a violation of RA 3019 since they acted with manifest partiality, evident bad faith or gross inexcusable negligence, which caused injury to the government. As to RA 6713, a public officer is not allowed to practice his private profession unless authorized by the Constitution or by law. The University Code allows private practice of profession but it must be with prior permission, no showing in this case that Posadas had prior permission to engage in private practice as technology manager.

Definition under the RPC, Art. 203

ART. 203, RPC WHO ARE PUBLIC OFFICERS – For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the government of Philippine Islands, or shall perform in said government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

Public Officer Vs. Public Employee

Throop Vs. Langdon 40 Mich 673

FACTS: Information was in the nature of a quo warranto questioning the appointment of Langdon as the chief clerk in the assessor’s office of Detroit. The crux of the matter was whether or not a “chief clerk” in the office of the assessor is an “office” against whom a quo warranto would lie.

HELD: The chief clerk is not a public officer against whom proceedings in the nature of a quo warranto to try his title to office may be brought. An office is a special trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be consideration for its being conferred upon a particular individual, who for the time will be the officer. The officer is distinguished from the employee in the greater importance, dignity and independence in his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position. There is no law creating an office of a chief clerk. The fact an oath is being taken cannot prove a clerk is an officer. Nor do the duties usually performed by a chief clerk indicate an office rather than an employment as nothing but custom has defined them. He is wholly subordinate to the assessor and his duties are those of mere clerkship. Also, court found no significance in the fact that he is independent of the assessor in the tenure of his position.

Peclaro Vs. Sandiganbayan

FACTS: Petitioner was found guilty by Sandiganbayan for violation of RA 3019 Sec 3(b). He allegedly demanded kickback as Manager/Consultant of the Chemical Mineral Division, Industrial Technology Development Institute of the DOST, in a government project. In his appeal, he raises the issue whether or not he should be considered a public officer as defined by Sec 2(b) of RA 3019, since he is neither elected nor appointed to a public office but rather a private individual hired by ITDI on a contractual basis for a particular project and for a specified period.

HELD: He is a public officer. “Public Officer” under Sec 2(b) includes “elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption services receiving compensation, even nominal, from the government. The word “includes” used in definition shows that it is not restrictive. The terms “classified or unclassified or exemption services” were the old categories in the civil service which have been reclassified into “Career and Non-Career Service” by PD 807 providing for the CSC and Admin Code of 1987. Under Admin Code, Non-Career Service shall include “Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency..” The fact that he is not required to record his working hours by bundy clock or that he did not take an oath of office became unessential considerations in view of the provisions of law including petitioner in the definition of a public officer.

Nature of Public Office


Elements of a Public Office

Barney Vs HawkinS

FACTS: This is an action to enjoin payment of salary to Grant Reed, who while being a Representative in the Magnolia Legislature was designated as auditor for the board of railroad commissioners and its ex officio commissions. The contention was that the appointment of Reed is void in view of the Constitution prohibitins against appointment of a Senator or Representative to any civil office during his term. HELD: After an exhaustive examination of conflicting authorities, the court held that the indispensable elements of a Public Office are as follows:

1. Must be created by the Constitution or by the Legislature or created by a municipality or other body trough authority conferred by the Legislature;

2. Possess a delegation of a portion of the sovereign power of govt, to be exercised for the benefit of the public;

3. Powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or thru Legislative authority;

4. Duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body;

5. It must have some permanency and continuity, and not be only temporary or occasional. In addition, in this state, officer must take and file official OATH, hold a commission and give an official bond, if required by proper authority.

Court found that Reed is was not holding a civil office. It held that while the Board of Railroad Commissioners, which appointed Reed, could create a position, it cannot create an office. The position he holds does not possess any delegation of a portion of the sovereign power of the government. He is merely an employee, terminable at the pleasure of the employing power. Therefore, no violation of the prohibition in the Constitution.

Manner of Creation1) Constitution2) Statute3) Authority of Law

Characteristics

OCA Vs Fuentes

FACTS: An administrative case was filed against Sheriff Paralisan for conduct prejudicial to the best interest of service, in violation of PD 807 or the Civil Service Decree, in relation to the hasty implementation of a writ of execution against the DPWH. The court noted of the anomaly in that no notice was served on the OSG on the Notices of Levy of scrap irons, as well as the irregularities in the sale thereof and the fact that the private party took also serviceable equipment in excess of the levy.

HELD: Guilty. Presumption of regularity has been rebutted by evidence of record showing undue haste in the execution, unjust bias and hidden ploy of the sheriff.

A public office is a public trust. All public officers and employees must, at all times, be accountable to the people. They ought to perform their duties with utmost responsibility, integrity, competence and loyalty, and with patriotism and justice, and lead modest lives, and uphold public trust over personal interest. Respondent sheriff is a court employee required to conduct himself with propriety and decorum, but he failed to comply with the strict standards required of all public officers and employees.

Saura Vs Sindico

FACTS: In question in this case was the binding effect of a written agreement containing a pledge that the losing party in the Nationalista Convention should respect the result of such convention and shall not run as rebel or independent candidate for Representative. While Saura was elected to be the candidate of Nacionalista party, Sindico disregarded the agreement and filed her certificate of candidacy.

HELD: The agreement is a nullity. Among those that may not be a subject matter of contracts are certain rights of individuals, which the law for public policy deemed wise to exclude from the commerce of men. Such include political rights of citizens—right to vote, to run for office and be voted for, provided that all the qualifications prescribed by law obtain. Such rights therefore may not be bargained or surrendered for consideration by the citizen nor be unduly curtained, for they are not conferred for individual or private benefit but for public good and interest. Constitutional and statutory provisions fix the qualifications for certain public offices, which may neither be enlarged nor reduced by mere agreements between private parties.


Mathay Vs. CA

FACTS: Former mayor appointed Civil Service Unit employees pursuant to PD 51, which was later on declared invalid for lack of publication. However, a QC ordinance provided for the absorption of the CSU employees to the Department of Public Order and Safety created therein. Mayor Mathay, however, refused to renew the contracts of the CSU employees. CSC ruled that petitioner Mathay should reappoint.

HELD: The ordinance encroached upon the power of the local chief executive, which according to the law applicable BP 337 and not the Local Government Code of 1992, has the power to appoint. The ordinance refers to personnel and not to positions. Even the CSC cannot substitute its own judgment for that of the appointing power; it could merely approve or disapprove and cannot direct the appointment of a particular individual. Even if the ordinance provides only for an absorption, fact still remains that the CSU’s employees’ appointments in the defunct CSU were invalid ab initio and they have to be extended original appointments after the revocation PD 51. It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating or conferring it. Since PD 51 never became a law, it could not be a source of any right.

Classification

II. Requirements for Public OfficeA. Selection

i. Electionii.Appointment

1. Definition2. Vs. Designation

Triste Vs. Leyte State

FACTS: Vice-presidency of the Leyte State College is in question in this case. Petitioner, incumbent is questioning her replacement by the Board of Trustees. The Board argues that she was merely “designated” and not “appointed” to the position.

HELD: While in a line of cases, the term “appoint” is applied to the nomination or designation of an individual. Common usage, however, oftentimes puts a distinction in such that “appointment” connotes permanency while “designation” implies temporariness. Thus, to designate a public officer to another position may mean to vest him with additional duties while he performs the functions of his permanent office; or in some cases, a public officer may be “designated” to a position in an acting capacity. However, in this case, the Court ruled that the laws contemplate of a duly appointed vice-president. As such, petitioner could be removed only for justifiable reason and after she was accorded due process.

Binamira Vs. Garrucho

FACTS: Petition for quo warranto was filed by Binamira for his reinstatement as the General Manager of the Phil Toursim Authority. He was designated by the then Minister of Tourism, approved by Pres. Aquino. However, later the president declared that such designation is invalid having been made by the Minister and not by herself as president.

HELD: PD 564, which created the PTA, provides that the General Manager thereof shall be appointed by the President. It is not disputed that Binamira was not appointed by the president but merely designated by the Minister. Court made a distinction between appointment and designation—appointment may be defined as the selection by the authority vested with the power, of an individual who is to exercise the functions of a given office and when completed, appointment results in security of tenure; while designation connotes merely the imposition by law of additional duties to an incumbent official. Designation may be loosely defined as an appointment, however where the person is merely designated and not appointed, the implication is that he shall hold the office in a temporary capacity and may be replaced at will by the appointing authority; it does not confer security of tenure.

People Vs. Posadas, supra

3. Typesa. Permanent/Temporary

or Acting

Felix Vs. Buenaseda

FACTS: Petitioner assails his dismissal as Medical Specialist I of the National Center for Mental Health as illegal and violative of the constitutional provision on security of tenure allegedly because there was an invalid reorganization. He was a temporary Senior Resident Physician appointed and promoted to a Medical Specialist I in a temporary capacity. DO 347 was issued by DOH making a board certification a prerequisite for renewal of specialist position. Petitioner was one of the medical specialist adversely affected since he was not yet accredited.

HELD: Residency or Resident physician position in a medical specialty is never a permanent one. Residency connotes training and temporary status and promotion to the next graduate year is based in merits and performance. Therefore, petitioner’s insistence on being reverted back to his old position would be akin to a college student asking to be sent back to high school and staying there. Also, petitioner is already estopped as he raised no objection to his promotion to the position of Medical Specialist I about the change of position or the temporary nature of the designation.


Valencia Vs Peralta

FACTS: Petitioner Valencia was “designated Acting Chairman” of the BOD of the National Water Sewerage Authority, by Pres. Garcia, however, he took an oath of office to the position “Chairman Ad Interim” and was confirmed by the COA. Later on, Pres. Macapagal appointed Respondent Peralta ad interim to said position, which petitioner now questions.

HELD: The designation of petitioner, being revocable and temporary in character, could not ripen into a permanent appointment even if it was subsequently confirmed by the Commission on Appointments because confirmation presupposes a valid nomination or recess appointment which is not the case here. Neither does his taking of oath as ad interim appointee help his case, since the oath clearly does not correspond to the temporary designation as Acting Chairman that was accorded him.

Ad interim/regular

Matibag Vs Benipayo

FACTS: The validity of his transfer being dependent on the validity of the appointment of the Commisioners of COMELEC, petitioner Matibag tests the validity of the appointments of Benipayo et al, as commissioner and deputy commissioners of COMELEC. Benipayo et al were appointed by PGMA as commissioners for 7-year terms ending Feb 2, 2008. President submitted the ad interim appointments to COA for confirmation but COA failed to act on it. Several renewals were made, although the COA adjourned still failing to act on the ad interim appointments. Petitioner says that the appointments of the commissioner undermines COMELEC independence and violates Consti prohibitions against temporary appointments and reappointments of its Chairman and members.

HELD: An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by COA does not alter its permanent character as the Consti imposes no condition in the effectivity of an ad interim appointment, which terminates upon disapproval of COA or until the next adjournment of Congress without being acted upon by COA. The term “ad interim appointment”, means a permanent appointment by the President in the meantime the Congress is in recess. It does not mean a temporary appointment that can be revoked or withdrawn anytime. Withdrawal is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal thereafter is already tantamount to removal from office. As a general rule, ad interim appointment disapproved by COA can no longer be reappointed if it was upon merits and qualifications. Such is not the case when the appointment is merely by-passed due to lack of time or failure of COA to organize since it is not upon merits, so no final decision was ever given. An ad interim appointment that lapsed by inaction of COA does not constitute a term of office and therefore the President is free to renew, subject to the 7-year term limit in the Constitution.

The Appointing Power

Nature of the Appointing Power: Intrinsically Executive

Concepcion Vs. Paredes

FACTS: Section 148 of the Admin Code, amended by Act no. 2941, which requires drawing of lots for judicial positions was sought to be declared unconstitutional by CFI judge.

HELD: The provision is unconstitutional. The Organic Act vests supreme executive power in the Governor General, thus, he has the authority to appoint and commission officers subject to confirmation by Senate. Appointment to an office is intrinsically an executive act involving exercise of discretion. In this case, chance is being substituted for executive judgment. Appointment by lot is not appointment by the Governor General, nor is it appointment with the advice and consent of the Senate.

Exceptions to the inherently executive nature of appointments

Constitution Supreme Court, Art. VIII Sec. 9

Section 9. The Members of the Supreme Court and judges of the lower courts 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.

Constitutional Commissions- SCS, COMELEC, COA

General Doctrine of Separation of Powers e.g. Congress

Limitations on the power to appoint

Qualifications As endowment

eg, citizenship, age, professional and government examinations, profession, educational qualifications, experience but see Maguera Vs. Borra


Maguera Vs. Borra

FACTS: RA 4421 requires all candidates for national, provincial, city and municipal offices to post a surety bond equivalent to one-year salary or emoluments of the position to which he is a candidate, which bond shall be forfeited if the candidate loses and fails to obtain at least 10% votes, there being at least 4 candidates for the same office. Issue was whether or not such qualification could be imposed.

HELD: The provision is unconstitutional as it imposes property qualification, inconsistent with the nature and essence of the Republican system ordained in the Consti, which is premised on the tenet that the sovereignty resides in the people and all the government authority emanates from them, necessarily implying that the right to vote and to be voted for shall not be dependent on wealth. It is also inconsistent with the principle of social justice that presupposes equal opportunity for all, rich and poor alike. No person shall, by reason of poverty, be denied the right to be elected to public office.

Lack of disqualifications As an act Confirmation by Commission on

Appointments:

ART VII, Sec. 16

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.

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 disapproved by the Commission on Appointments or until the next adjournment of the Congress.

Sarmiento Vs. Mison

FACTS: Petitioner seeks to enjoin the respondent Mison from performing the functions of the Office of Commissioner of Bureau of Customs on the ground that his appointment was not confirmed by the COA.

HELD: COA confirmation is not required. The records of the Constitutional Commission reveal the heads of bureaus are purposely excluded from requirement of confirmation by COA, although it may result that higher officers does not require confirmation while some positions lower do require confirmation. Art VII Sec 16 par 1 of the Constitution provides 4 groups of officers whom the president shall appoint. First, the heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Constitution; second, all other officers of the Government whose appointments are not otherwise provided for by law; third,

those whom the President may be authorized by law to appoint; and fourth, officers lower in rank whose appointments the Congress maw by law vest in the President alone. Only in the first category that the confirmation of the COA is required. For the second category, the records of the Consti Commission that necessity of confirmation by COA was expressly removed. On the last category, the use of the word “alone: after the word “president” is just a mere slip or lapses in draftsmanship as it was merely copied from the 1935 Consti, therefore cannot be held to mean that in cases where the law does not provide that appointment is vested in the President alone, confirmation of COA is required.

Quintos Deles Vs Comm on Appointments

FACTS: This case resolves the question whether or not the Constitution requires the appointment of sectoral representatives to the House to be confirmed by the COA.

HELD: It requires confirmation by COA. The court reiterated the holding in Sarmiento v. Mison with respect to Art VII Sec 16 par 1 of the Constitution. The power to appoint is essentially executive and requirement of confirmation is a limitation on such power and therefore must be strictly construed. It is only in the first category of officers that the confirmation of COA requirement is clearly stated. However, since seats reserved for sectoral representatives may be filled by appointment by President by express provision of Art XVII, Sec 7 of the Constitution, it is indubitable that sectoral representatives to the House are among the “other officers whose appointments are vested in the President in this Constitution” referred to in the first sentence of Art. VII Sec 16, that is subject to the confirmation of COA.

Bautista Vs. Salonga

FACTS: President designated petitioner Bautista as “Acting Chairman of Commision on Human Rights”, but realizing the Consti mandate that appointment should be permanent pursuant to the requirement of CHR independence, the appointment was made permanent. Bautista took her oath of office and discharged the functions of the office. However, COA later on requested from Bautista documents in connection with the confirmation of her appointment. Petitioner held that COA had no jurisdiction as the position of Chairman of CHR requires no confirmation by COA. COA later on disapproved her “ad interim appointment” in view of her refusal to submit to the jurisdiction of COA. President appointed another as “Acting Chairman of CHR” pending resolution of Bautista’s case.

HELD: COA confirmation is not required. After her appointment was made permanent by the President, all that remained for Bautista to do was to reject or accept the office. Obviously, she accepted, therefore her appointment is a completed act. The Court also found untenable the contention of COA that it is within the Pres’ prerogative to voluntarily submit the appointment to COA for confirmation. It was held that neither Executive or Legislative can create power where the Constitution confers none. The evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the Pres and the Congress (acting through COA). The exercise of political options by the Executive that finds no support in the Consti cannot be sustained. Nor can the COA, by actual exercise of its constitutionally delimited power to review presidential appointments, create power to confirm appointments that the Conti reserved to the Pres alone.


Therefore, the Pres’ act of voluntarily act submitting appointments mandated by the Consti to be made without participation by the COA, and the latter’s act of confirming or rejecting the same, are done without or in excess of jurisdiction.

Eligibility, qualifications and disqualifications

Definitions1. Eligibility – all of the

qualifications and none of the disqualifications

2. Ineligibility3. Qualification

Vargas V. Rilloraza

FACTS: Petitioner challenges the constitutionality of Sec 14 of the People’s Court Act on the following grounds: (1) it provides for additional qualifications of members of SC other than those provided in the Consti (2) it authorizes appointment of members to SC who do not posses qualifications in the Consti (3) it removes from office members of SC by a procedure other than impeachment (4) it deprives COA of its constitutional prerogative to confirm or reject appointments (5) it creates 2 SC’s (6) it impairs the rule-making power of the SC.

HELD: There is a clear case of repugnancy to the fundamental law. For repugnancy to result, there is no need for an actual removal; what matters is not only that the Justice continue to be a member of SC but that he be left unhampered in the exercise of his functions of his office. To disqualify in cases of treason any Justice who held any office or position during Japanese government is a deprivation of his judicial power.

Art VIII, Sec 5 of the Constitution requires that members of SC should be appointed by the Pres with the consent of COA. The “designation” of Justice at Large or Cadastral Judges as members of SC under Sec 14 of People’s Court Act by the President cannot possibly be a compliance of the Consti requirement.

The lack of confirmation by the COA is an additional disqualifying circumstance of the “designee” Furthermore, certain “designees” do not possess the qualifications of a regular member of the SC as prescribed in the Consti (i.e. the Judge at Large or Cadastral Judge need not be at keat 40 y.o. nor have for ten years or more a judge of court or in the practice of law).

No temporary composition of the SC is authorized by the Consti. The clause “unless otherwise provided by law” in Art VII Sec 4, Consti, cannot be construed to authorize any legislation to alter the composition of the SC even for how brief a time. The clause refers to the number of Justices who were to compose the Court upon its initial organization under the Commonwealth and its manner of sitting.

Cuyegkeng Vs. Cruz

FACTS: The issue in this case was WON the president is mandated by law, RA 2382, to make his appointments of the members of the Board of Examiners solely based on the list of recomendeed submitted to him by the Executive Council of the Phil Medical Association. Respondent Cruz was appointed though he was not in the list, so petitioners who were included in the nominees of filed quo warranto.

HELD: SC was divided into 3 groups. First group believed that Sec 14 containing all qualifications for membership in the Board of Examiners are mandatory and the inclusion in the list of nominees by Council of PMA under Sec 14 is not one of the qualifications, also asseverating that by confining the selection to the list effectively limit and curtail the President’s power of appointment; second group held that Sec 13 is merely directory and the petitioners themselves in their pleadings referred to the list as “letter of recommendation”, and the persons named as mere “recommendees”; third group, deems it unnecessary to inquire into the constitutionality of Sec 13 or determine whether it is mandatory or directory. The last composed the majority.

Respondent’s professional competency was never in dispute. In fact, he was a member of said Board before his reappointment. SC held that the person reappointed need not be included in the list of recomendees in Sec 13, because reappointment is sanctioned by a later provision (Sec 15). Court also noted that the petitioners may not avail of quo warranto proceeding as none of them, while nominated, shows any claim of title to the position since they were not appointed.

Manalang Vs. Quitoriano

FACTS: Petititoner Manalang was Dir of the Placement Bureau, abolished by RA 761 which provided for the organization of the National Employment Service. RA provided that the Commissioner of NES shall be appointed by the Pres. While recommended by the Sec of Labor, pet was not appointed as Commissioner of Nes but rather Respondent Quitoriano. Manalang claims that there is no abolition but only fading away of the title Placement Bureau. He also claims that the item of NES Commissioner is not new and is occupied by the petitioner, entitling him to the position “automatically by operation of law” in view of the provision of RA 761 relative to transfer of “qualified personnel” of the Placement Bureau.

HELD: Court found petitioner’s contentions without merit. The law is explicit that it intended abolition of the Placement Bureau. NES is a new entity as it merely includes the functions of Placement Bureau, in addition to those of the former Office in the Commission of Social Welfare.

On his contention that he is entitled to the office of Commissioner of NES by operation of law, Court held that his own pleadings recognize that he needs a new appointment. RA 761 expressly requires that appointment be made by the President with consent of COAS. The “transfer” referred to by the petitioner shall be affected only upon organization of the NES, which does not take

place until the appointment of at least the Commissioner thereof. Congress cannot impose upon the Pres the duty to appoint any particular person as Commissioner of NES, the appointing power being an exclusive power of the Pres, upon which no limitation may be imposed by Congress.


Flores Vs. Drilon

FACTS: Sec 13 of RA 7227 (Bases Conversion and Development Act of 1992) is being questioned, among other grounds, on that it is a legislative encroachment upon the appointing power of the president. It’s proviso provides that for the first year of the operations of the Subic Authority, the mayor of Olongapo City shall be appointed as the chairman and chief executive officer.

HELD: There is encroachment. “Appointment involves the exercise of discretion by the appointing power; it is not ministerial. The power of choice is the heart of the power to appoint. Hence, when the Congress clothes the President with the power to appoint, it cannot at the same time limit the choice of the President to only one candidate. When only one candidate meets the qualifications prescribed by the Congress, such enactment effectively eliminates the discretion of the appointing power. In the CAB, while Congress willed that the President shall appoint the Administrator of Subic Authority, it unduly limits the appointing power to only one eligible---the Mayor of Olongapo City.

Qualification as endowment

Qualification as act

Sec. 40, Book 1 (Chap 10) Adm. Code of 1987

Time of possession of qualifications

Aguila vs. Genato

FACTS: Borje was elected Director of the Misamis Occidental Cooperative. Sec 21 of PD 269 provides that elective officers, except barrio captains and councilors, shall be ineligible to become officers and/or directors of cooperative, while the By-Laws of the MOELC provides that no person who holds an elective office in the government above the level of a Brgy Capt shall be eligible to be or remain a Board member of the Coop. Borje filed his cert of candidcy as member of Sangguniang Panglunsod of Ozamis. NEA issued Memo Circ 18 to the effect that official and employees of electric cooperatives who run and win a public office shall be considered resigned.

HELD: He is ineligible. PD 269 providing for disqualification clearly bars him, the term barrio modifies both captains and councilors for the exclusion to the ineligibility. Moreover, MOELC By-Laws is explicit in its prohibition. The argument that PD 269 does not prohibit board members from continuing in their position prior to their election is untenable. Eligibility to an office should be construed as a continuing requirement and must exist at the commencement of the term and during the occupancy of the office. Therefore, his election and subsequent assumption of office as city councilor

disqualified him to continue as board member of the cooperative.

Frivaldo Vs. COMELEC

FACTS: Frivaldo was proclaimed governor of Sorsogon Jan 22, 1988. On the basis that he is a naturalized American citizem the League of Municipalities filed with COMELEC a pet for annulment Frivaldo’s election and proclamation. Frivaldo claims that he was naturalized only because of fear of Marcos and he could not have repatriated himself before 1988 elections because the Special Committee on Naturalization had not been organized yet. Lastly, he prays that the petition to disqualify him be rejected for being time-barred under Sec 253 of the Election Code.

HELD: The Constitution, Local Government Code and the Election Code requires that a candidate be a Filipino citizen. The Court rejected Frivaldo’s plea that he was naturalized involuntarily and held that his forfeiture of his American citizenship did not automatically restored his Filipino citizenship. It was held that the qualifications for public office are continuing requirements and must be possessed not only at the time of appointment, election or assumption of office but also during the officer’s tenure. Furthermore, the will of the people as expressed through the ballots cannot cure the vice of ineligibility specially if mistakenly believed to be otherwise.

Frivaldo v. COMELEC *later decision

FACTS: In June 1995, Frivaldo was elected again as Governor of Sorsogon, his co-candidate Lee petitions for his disqualification due to non-Filipino citizenship.

HELD: Frivaldo’s latest attempt to acquire Filipino citizenship through the last mode Repatriation under PD 725, which remains effective, is valid. Contrary to the allegation of Lee, there was no indecent haste in processing Frivaldo’s application as it was filed years past, and was just resubmitted. As to the timeliness of his repatriation, the Court held that Sec 39 of the LGC speaks of qualifications of ELECTIVE OFFICIALS and not CANDIDATES. An official begins to govern or discharge his functions only upon his proclamation and on the day the law prescribes his term to start. Since Frivaldo re-assumed his Filipino citizenship on the very day of his proclamation, it is valid. If the law intended to make citizenship qualification to possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a separate qualification. The law abhors redundancy. Moreover, the purpose of the two qualifications are different—citizenship to ensure that we are not governed by aliens; being a registered voter to ensure familiarity with territory he seeks to govern. Another reason why citizenship is reckoned from date of proclamation and not date of filing certificate of candidacy is Sec 253 of the Omnibus Elec Code which gives any voter, including defeated candidates, opportunity to question eligibility of a candidate through quo warranto within 10days after proclamation. Hence it is only at such time, the issue of ineligibility can be taken cognizance by the COMELEC. To settle all doubts, the Court just held that in any case, the repatriation of Frivaldo had retroactive effect as PD 725 is a curative or remedial statute. It retroacted to the time Frivaldo filed his application as early as August 1994.


Castaneda Vs. Yap

FACTS: After winning post of municipal mayor, Yap’s ineligibility was questioned by Castaneda pointing to the fact that Yap was less than 23 y.o. when proclaimed, in violation of Revised Admin Code. Yap claims goodfaith and estoppel against Castaneda for latter’s knowledge of such ineligibility even before election.

HELD: Plea of estoppel would not hold for the right to an elective office can be contested, under existing legislation, only after proclamation. Good faith does not cure candidate ineligibility. In any case, Yap was not in goodfaith as he knew for a fact that he was underage. The requirement that a candidate for public office possess a certain age is based on public policy. No specific harm or damage needs to be shown and as per Section 173 of the Revised Admin Code, any candidate for same office may question ineligibility of the proclaimed candidate within one week after proclamation through quo warranto petition before CFI.

vi. Specific Qualifications and Disqualifications

1. common

2. general prohibitionsa. propertyb. religious,

Const. Art. 3, sec. 5 but see Sec. 2175, RAC

Art. III Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Pamil Vs. Teleron

FACTS: Petitioner Pamil and Respondent Gonzaga were both candidates for position of municipal mayor in Bohol. Respondent, a priest, was elected into the position. Petitioner assails Gonzaga’s election on the basis of Sec 2175 of the Revised Admin Code of 1917. Respondent Gonzaga counters that the said provision was impliedly repealed by the Election Code of 1971.

HELD: The majority opinion held that Sec 2175 was repealed, not by the Election Code which does not expressly refer to ecclesiastics, but rather by the Constitution. In the 1935 Constitution, it is explicitly declared that “No religious test shall be required for the exercise of civil or political rights.”, hence the ban against ecclesiatics from running for public office under Admin Code cannot survive. The Court cited Torcaso v. Watkins. However, this position failed to get the requisite 8 votes, thus the attack on Sec 2175 having failed, it remains valid and should be applied. Respondent was ordered to vacate the position.

Note: Concurring opinions, agreeing to the result, held basically that Election Code did not repeal Sec 2175 since the ecclesiastics are not included in the enumeration of those who may already file certificates of candidacy although previously prohibited under Sec 2175. It was also held that there is repugnancy between the Consti and Sec 2175, inasmuch that Sec 2175 does not constitute a religious test but merely a disqualification. Sec 2175 is derived from Sec 15 Article XV of the Constitution providing for separation of the church and the state, citing the horrible results when the two are mixed up—a religious sect obtaining a dominant hold over civil government—as experienced in the past, specially during the Spanish colonization of the Philippines.

Torasco Vs. Watkins

FACTS: Appellant Torasco was appointed by the Gov of Maryland to the office of a Notary Public, but was denied commission because he could not declare his belief in God as required by the Maryland Constitution. He now cries for violation of his rights under the First and Fourteenth Amendments.

HELD: The Maryland test for public office cannot be enforced because it unconstitutionally invades freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States. The fact that a person is not compelled to hold a public office is not an excuse for barring him from office by a state-imposed criteria forbidden by the Constitution. An abstract right to public employment exists.

vii. Qualifications prescribed by the Constitution – go back to the provisions on qualifications prescribed by the 1987 Consti for the Pres, VP, the Congress and all other constitutional offices

1. President,

Const ART VII, Sec 2No 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.

2. Vice-President

ART. VII Sec 3There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed

from office in the same manner as the President. The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.

3. Senator

ART VI, Sec. 3No 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 a resident of the Philippines for not less than two years immediately preceding the day of the election.

4. Congressman

ART VI, Sec. 6No 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.

5. SC Justice

ART VIII

Section 7. (1) 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.

(2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar.

(3) A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.

6. Civil Service Commissioners

ART IXB, Sec 1(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.

7. COMELEC Commissioners

ART IX-C. Sec. 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 positions 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.

8. COA Commissioners

viii. Disqualifications Monsanto Vs Factoran

FACTS: Sandiganbayan convited Monsanto, then assistant treasurer of Calbayog City, et al. of complex crime of estafa through falsification of public docs. SC affirmed, but during MFR was pending, Monsanto was extended absolute pardon by then Pres Marcos. So, she requested for reinstatement in her former post. Minister of Finance held that while she may be reinstated without necessity of new appointment, she is still civilly liable. Exec Sec Factoran, however, was of the view that she is not entitled to automatic reinstatement and liable for civil liability.

HELD: The Court subscribed to the modern view rejecting the unduly broad wiping out of all effects of previous violation in case of pardon. It held that the very essence of pardon is forgiveness or remission of guilt. It does not wash out moral sin, forgiveness and not forgetfulness. A pardon looks into the future and not retroactive.

Pardon granted after conviction frees the individual from all penalties and legal disabilities and restores him to all his civil rights, when expressly stated. But unless expressly grounded on person’s innocence, it cannot bring back lost reputation. Therefore Garland case notwithstanding, the Court is of the opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of conviction although such pardon undoubtedly restores his eligibility for re-appointment. Public offices are intended primarily for collective protection safety and the benefit of the common good. Court further notes that petitioner may apply for re-appointment, but of course the facts constituting her offense must be evaluated and taken into account in determining whether she should still be entrusted with public funds.


Garcia Vs COA

FACTS: Petitioner was a Supervising Lineman in the Bureau of Telecommunications summarily dismissed on the ground of dishonesty as per Ministry of Pub Works, Transpo and Comm in the Admin case. However, he was acquitted in the Criminal case by the trial court. He sought reinstatement in view of the acquittal, but was refused by the Bureau of Telecommunications. Acting on the favorable indorsements of the Ministry of Transportation and Communications and the CSC, he was granted Executive Clemency. He claimed with Commission on Audit payment of backwages from the time he was dismissed, but this was denied.

HELD: The Court harked back to Monsanto v. Factoran citing the general rule is that it does not effect blotting out of the offense for all purposes. Unless grounded on innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. Since it does not entitle to automatic reinstatement, offender cannot also claim backwages. However, the Monsanto rule stated otherwise is applicable in this case. If the pardon is based on innocence, it has the effect of making the person a new man as if not found guilty. He is restored his clean name, good reputation and unstained character prior to the finding of guilt. In the CAB, the acquittal of the petitioner by the TC is not due to lack of proof beyond reasonable doubt, but rather on the fact that he did not commit the acts as charged. In fact, his plea for pardon was bolstered by favorable recommendations for his reinstatement by Ministry of Telecom and the CSC. Further noted that the dismissal of petitioner was not a consequence of the a criminal conviction where it is an accessory penalty but rather of an administrative decision—and the Executive as its head has the power of control, that is to alter, modify or nullify what his subordinates has done in the performance of their duties and substitute his own judgment. The clemency nullified his dismissal, therefore, petitioner is entitled to backwages.

CLU Vs. Executive Secretary

FACTS: Petitioners maintain that EO 284 is unconstitutional as it allows members of the Cabinet, their usecs,and asst. secs to hold government offices or positions in addition to their primary positions, contrary to Sec 13 of Art VII of the 1987 Constitution. They contend that the only exceptions referred to by “unless otherwise provided in this Constitution” in Sec 13 are: (1) Vice Pres appointed as Cabinet member under Sec 3 Art VII (2) Sec of Justice as an ex-officio member of the Judicial Bar Council under Sec 8(1) Art VIII. They further argue that the exception to the prohibition in Sec 7 par 2 of Art IXB on the Civil Service Commission applies to officers and employees of the Civil Service in general and cannot be made to apply to Sec 13 of Art VII which specifically applies to the Pres, Cice-Pres, Mems of the Cabinet and their deputies and assistants.

HELD: The Court ruled for the petitioner holding that intent of the framers was to curtail abuses which became prevalent during the Marcos regime. The framers inspite of the blanket prohibition under Art IX-B still saw it fit to formulate another provision in Sec 13 Art VII, specifically applicable to the officials enumerated therein. Noting further that the prohibition imposed on the President and his official family in Sec 13 Art VII is even broader than those found in other provisions in the Consti dealing with members of Congress, armed forces and Civil Service employees, such that the ban is not limited to other positions in the Government, but rather it provides for

absolute disqualification in any position, office or employment. Moreover, respondents’ interpretation would render certain parts of the Constitution inoperative, such as Sec 3 Art VII allowing VP to be appointed as a cabinet member, Sec 7 Article VII authorizing the VP to act as President without relinquishing Vice-Presidency where the Pres shall not have been chosen or fails to qualify, and Sec 8 (1) Art VIII allowing the Sec of Justice to serve ex officio as member of the Judicial Bar Council. These clearly are intended to be the only exceptions contemplated in “unless provided by this Constitution” of Sec 13 Art VII. However, the Court clarifies that Sec 13 Art VII should not be interpreted to apply to posts occupied by Executive officials without additional compensation in an ex-officio capacity as provided by law or as required by the primary functions of said officials’ office. These posts do not comprise “any other office” within the constitutional prohibition but are properly an imposition of additional duties and functions on said officials.

Caasi Vs. CA

FACTS: In question in this case is the qualification of Merito Miguel, a green card holder, to the position of municipal mayor of Bolinao in view of Sec 68 of the Omnibus Election Code.

HELD: Sec 18 Art IX of the Consti provides that Public officers and employees owe State and the Consti allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire status of an immigrant of another country during his tenure shall be dealt with by law. Sec 86 of the Elec Code, on the other hand, any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office unless he waives such status in accordance with the residence requirement provided for in the election laws. While Sec 18 of Art IX is not applicable to Miguel for he acquired his immigrant status prior to election and not during his tenure, Sec 68 of the Elec Code is applicable. The law requires that a greencard holder must have “waived his status as resident or immigrant of a foreign country” to be qualified to run for a public office. Therefore, his act of filing a certificate of candidacy did not itself constitute a waiver of his status, it should be manifested by some act or acts done prior to filing his candidacy. Without such, he is “disqualified to run for any elective office”.

Frivaldo, supra


III. DE FACTO AND DE JURE OFFICERS a. Definition

State Vs. Carroll

FACTS: The judge of the city Court of New Haven was absent because he was sick. The clerk of court took to himself to request Morse, a justice of peace residing in New Haven to act in the sick judge’s place. While Morse was acting as judge, a complaint was brought before against Caroll for libel and breach of the peace. He was found guilty. Caroll then assails the judgment questioning Morse’s authority to sit as judge. He also claims that the charter which allows for appointments of acting judges is unconstitutional and that the court was not legally organized because the letter calling Morse was not recorded.

HELD: The decision of Morse is valid. Morse was an officer de facto. The Court defined a de facto officer as one who acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised, first, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be; second, under the color of a known and valid appointment or election but where the officer has failed to conform to some precedent requirement or condition, as to take oath, give bond etc.; third, under color of known election or appointment, void because the officer was not eligible, or because there was a want of power in electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; fourth, under color of an election or appointment by or pursuant to unconstitutional law, before the same is declared to be as such.

b. Distinctions

c. De Facto Officers

i. Conditions and elements

Tuanda Vs SB

FACTS: Private respondents were designated as sectoral representatives for the Sangguniang Bayan of Jimalalud, Negros and took their oath of office. Petitioner Mayor Tuanda et al filed with the Office of the Pres. For review and recall of said designation, but it was denied ordering him to recognize private respondents. Petitioner then filed with RTC to declare designations null and void. Meantime, private respondents filed with Sandiganbayan charging Petitioners Tuanda et al for badfaith and partiality in refusing to pay their their salaries. RTC declared designation void ab initio for non-compliance with the requirements in BP 337 for appointment of sectoral representatives, particularly, a prior determination by the Sanggunian that the sectors are sufficient in number after consultation with those belonging to the sector concerned. This was appealed, and currently pending. Petitioners moved for the suspension of the Sandiganbayan case

contending that the validity of the designation is a prejudicial question. SB denied.

HELD: The Court ruled that there is a prejudicial question since the outcome of the question on the validity of the designation would determine the merits of the charges against the petitioners before the Sandiganbayan. The Court found unmeritorious SB’s thesis that in the event respondents’ designations are finally declared invalid they may still be considered de facto officers. SC enumerated the conditions and elements of de facto officership:1.) there must be a de jure office;2.) there must be color of right or general acquiescence by the public; and3.) there must be actual physical possession of the office in good faith. All must be present. There can be no de facto officer where there is no de jure office, although there may be a de facto officer in a de jure office.

Tayco Vs. Capistrano

FACTS: This is a petition for prohibition enjoining respondent Judge Capistrano in taking cognizance of certain civil and criminal election cases in which petitioners are parties. They base their petition on three major allegations, first on the understanding that the auxiliary judge would here election and criminal cases; second that Judge Capistrano is bias against them; third that having reached the age of 65, Judge Capistrano has therefore automatically ceased as judge of the CFI and that he is neither a judge de jure or de facto.

HELD: The Court dismissed the petition. On the first, the mere understanding cannot deprive a judge of his jurisdiction as prescribed by law. On the second, court basically held the determination WON a fiscal properly filed a case lies within the sound discretion of a judge. As to the third, the Court noted at the outset that whether a judge is de facto or de jure may only be determined in a quo warranto proceeding. Respondent judge has been duly appointed to his office to serve until they reach 65. While he may not be a de jure officer, he is still a judge de facto. Briefly defined, a de facto judge is one who exercises duties of a judicial official under color of an appointment or election thereto. He differs from a mere usurper, who undertakes to act officially without any color of right, and on the other hand, from a judge de jure who is in all respects legally appointed, qualified and whose term has not expired. General rule seems to be that an incumbent of an office will hold over after conclusion of his term until the election and qualification of a successor. When a judge in good faith remains in his office after his title has ended, he is a de facto officer.

Rodriguez Vs. Tan

Eulogio Rodriguez filed a complaint against Carlos Tan, alleging that the latter had usurped his office as Senator of the Philippines. The Senate Electorate Tribunal rendered a judgment against Tan and declared Rodriguez to have been duly elected to the office, but failed to rule upon his claim to salaries. Rodriguez now appeals this decision claiming that Tan should reimburse him.

WON Tan may be held liable for the payment of Rodriguez’s salary


No he may not. There is no question that Tan acted as a de facto officer. A senator who has been proclaimed and had assumed office, but was later on ousted as a result of an election protest, is a de facto officer during the time he held office, and is entitled to the compensation, emoluments and allowances to which our Constitution provides for the position.

Doc Avila: Compare this case with Monroy v. Court of Appeals where the court ruled that the government official (Mayor) was not entitled to his compensation as he was deemed to have resigned. That case involved a USURPER and not a de facto officer.

General Rule: Public Officer takes the salary at his own risk, that is – subject to an attack by the de jure officer.

Lino Luna Vs. Rodriguez

In an election contest involving the office of governor of Rizal, Judge Barreto signed an opinion (favorable to Luna) on January 14, 1917 but this was only filed with the clerk of court on January 17, 1917. Rodriguez contests the propriety of the judge’s ruling and argued that it was invalid, as Barreto ceased to be a judge when he assumed the position of Secretary of Finance on January 16, 1917.

WON the decision was validly filed and promulgated

The Supreme Court held that the issue should be resolved in a new trial, but it gave the following guidelines:

In order that a court may promulgate a legal decision or judgment, the following elements are necessary:

1. There must be a court legally organized or constituted;

2. There must be a judge or judges legally appointed or elected and actually acting, either de jure or de facto

Judge de Jure – One who exercises the office of judge as a matter of right; an officer of law fully vested with all the powers and functions conceded under the law.

Judge de Facto – One whose acts are valid under principles of policy and justice insofar as they involved the interest of the public and third persons, where the duties of the office were exercised:

1. Without a known appointment or election but under such circumstances of reputation as were calculated to induce the people to submit to his action.

2. Under color of a known or valid appointment or election, where the officer has failed to conform to some precedent, requirement or condition.

3. Under color of a known election or appointment, but was void because the officer was not eligible or by want of power on the part of the appointing power.

Solis Vs. CA

In a case involving the malversation of public funds, Judge Leuterio (who was then judge-at-large assigned to the case) penned a decision finding Gregorio Solis et al, guilty of the crime charged against them. A day before the promulgation of judgment, RA 1186 took effect, and

abolished all existing positions of Judges-at-Large. Hence, when judgment was to be promulgated, a judge of another sala of the court, Judge Palacio, promulgated the judgment of Judge Leuterio. Solis appeals the validity of the promulgation of judgment.

WON the judgment rendered by Judge Palacio was valid.

No it was not. A decision is void if promulgated after the judge who rendered it had permanently ceased to be a judge of the court where he sat in judgment. Thus, a judgment is a nullity if it had been promulgated:

1. After the judge had actually vacated the office and accepted another office;

2. When the term of the judge has ended3. When the judge has left the Bench4. After the judge had vacated his post in view of

the abolition of his position as Judge-at-Large (RA 1186)

5. After the cessation or termination of his incumbency.

ii. Effects

Menzon Vs. Petilla

As there was no Governor proclaimed in the province of Leyte, the Secretary of Local Government designated the Vice-Governor – Petilla, as acting Governor of Leyte. Menzon, a Senior member of the Sanngguniang Panlalawigan was subsequently appointed as Vice-Governor. The Provincial Administrator through a resolution in the Sangguninang Panlalawigan, subsequently held the Menzon’s appointment to be invalid, and argued that BP 337 has no provision relating to succession in the Office of the Vice Governor in case of a temporary vacancy

WON the Secretary of Local Government has the authority to make temporary appointments for the position of Vice-Governor

Yes he does. The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. There is no question that Sec. 49 in connection with Sec. 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor. By virtue of the surrounding circumstances in this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy occurring in the same office.

WON Menzon is entitled to compensation for the position of Vice-Governor

Even if the Secretary of Local Government possesses no power to appoint Menzon, the latter is at the very least, a de facto officer entitled to compensation. He was acclaimed as such by the people of Leyte, upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary die him for the services he actually rendered as the acting Vice-Governor of the province of Leyte.

Malaluan Vs COMELEC

Malaluan and Evangelista were mayoralty candidates in town of Kidapawan, North Cotabato. Evangelista was


proclaimed winner, but after an election protest filed by Malaluan in the RTC, was later disqualified. On appeal to COMELEC, Malaluan was ordered to vacate the position and pay Evangelista actual damages (for xerox copies, unearned salary and other emoluments).

WON the award of damages was proper

No it was not. COMELEC committed grave abuse of discretion as the long-standing rule (citing Rodriguez v. Tan) is that notwithstanding his subsequent ouster as a result of an election protest, an elective official who has been proclaimed by COMELEC as winner in an electorate contest and who assumed office and entered in the performance of the duties of that office is entitled to the emoluments, allowances and compensation legally provided for the position.

Malaluan was a de facto officer, who, in good faith, has had possession of the office and had discharged the duties pertaining thereto and is thus legally entitled to the emoluments of the office.

Flores Vs. Drilon, supra

WON the acts of Gordon as SBMA Chair while he was still Mayor are null and void

No, these acts are valid as Gordon is a de facto officer, who acted under color of authority (Bases Conversion and development Act of 1992). Furthermore, as a de facto officer, he is entitled to all per diems, allowances and other emoluments which may he may have received pursuant to his appointment.

iii. Challenges

Tayco, supra

WON any private individual may question the public judicial functions of a judge

No. As far as third persons are interested and the public are concerned, the acts of a de facto judge are just as valid as those of a de jure judge. The title of a de fact officer cannot be indirectly questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act. Having at least a colorable right to the office, his title can be determined only in quo warranto proceeding or information in the nature of a quo warranto at the suit of the sovereign.

IV. The CIVIL SERVICE

Const. ART IX(B);Section 1. (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.

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

(2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination.

(3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law.

(4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.

(5) The right to self-organization shall not be denied to government employees.

(6) Temporary employees of the Government shall be given such protection as may be provided by law.

Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.

Section 4. All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution.

Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions.

Section 6. 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 their subsidiaries.

Section 7. 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 or their subsidiaries.

Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall not be considered as

additional, double, or indirect compensation.

Meram Vs. Edralin

Meram and Agravio opposed the appointment of Edralin to the position of Administrative Officer in the Administrative Division of the Bureau of Forest Development (BFD). Meram and Agravio contend that they are “next in rank” to the position. The BFD, after considering the findings of the Merit System Protection Board (MSPB) and the Civil Service Commission (CSC), issued the appointment to Meram but its decision was overturned upon the letter-request of Edralin to the Office of the President.

WON the Office of the President has exclusive jurisdiction over the case

No it did not. There is nothing in PD 807 which connotes exclusivity of jurisdiction of the Office of the President. Meram correctly filed her petition before the MSPB in accordance with PD 1409.

Civil service laws are not enacted to penalize anyone. They are designed to eradicate the system of appointment to public offices based on political considerations and to eliminate as far as practicable the element of partisanship and personal favoritism in making appointments.

Edralin was not next in rank for the position and is hence, not qualified.

Doc Avila: So what do we learn from this case? Follow protocol, and if you’re unsatisfied with the procedure and want to appeal to the Office of the President, be humble about it.

National Service Corp Vs NLRC

Credo was employed as a lady security guard of the National Service Corporation (NASECO), she was later promoted to Clerk Typist and then later, Chief of Property Records. Credo was later administratively charged for not complying with a memorandum (regarding certain entry procedures in the NASECO). After the investigation, Credo was dismissed from her employment. On appeal, the NLRC found that Credo was illegally dismissed and ordered her reinstatement to the position. NASECO contends (amongst others) that the NLRC had no jurisdiction to order Credo’s reinstatement, since it is a subsidiary of the National Investment and Development Corporation (NIDC), which in turn is owned by the PNB, the terms and conditions of employment of its employees are governed by the Civil Service Law and not the NLRC.

WON employees of GOCCs with no original charters are exempt from the NLRC rules

No they are not. The case relied upon by NASECO (NHC v. Juco) was based on the 1973 Constitution. The situation sought to be avoided and expressed by the court in NHC v. Juco appear to be relegated to relative insignificance by the 1987 Constitution that: The Civil Service embraces GOCCs with original charters and therefore, by clear implication, the Civil Service does not include GOCCs which are organized as subsidiaries of GOCCs under the General Corporation Law (or those without original charters).

As an admitted subsidiary of the NIDC, in turn a subsidiary of the PNB, the NASECO is a GOCC without an original charter, whose employees are subject to the NLRC rules.

Fontanilla Vs. Maliaman

Garcia was employed by the National Irrigation Authority as a driver for one of its trucks. In the course of his employment, Garcia was involved in a vehicular accident that led to the deaths of 3 people. The victim’s parents filed a suit against NIA and the trial court found NIA liable for its driver (Garcia) and ordered it to pay moral and exemplary damages.

WON the award of damages is proper, considering the principle on non-suability of the State

Yes the award is proper. Applying Art. 2176 of the New Civil Code, the State’s agent, if a public official, must not only be specially commissioned to do a particular task, but such task must be foreign to said official’s government functions. If the State’s agent is not a public official and is commissioned to perform non-government functions, then the State assumes the role of an ordinary employer and will be held liable as such for its agent’s tort.

Where the government commissions a private individual for a special government task, it is acting through a special agent within the meaning of Art. 2176 of the New Civil Code.

Rafael Vs EACIB

RA 3137 was enacted creating an Embroidery and Apparel Control and Inspection Board. The said act provides for the composition of a Board that will approve/deny the application for the license to import textile for the manufacture of leather goods. Cecilio Rafael, a textile manufacturer, questioned the validity of the said act as Congress specified the persons to be appointed as members of the Boards. Accordingly, since the act prescribes that the Chairman and members should come from specified offices, it is equivalent to a declaration by Congress as to who should be appointed.

WON RA 3137 is invalid insofar as it deprives the President the power to appoint

No it is not. The chairman and members of the Board, except for the representatives for the private sector, are ex-officio. In order to be designated, they must already be holding positions in the offices mentioned in the law. No new appointments are necessary. This is as it should be because the representatives so designated merely perform duties in the Board in addition to those they already performed under their original appointments.

This situation is not violative of the established doctrine that “the appointing power is the exclusive prerogative of the President, upon which no limitation may be imposed by Congress, except those resulting from the need of


securing the concurrence of the Commission on Appointments and from the exercise of the limited power to prescribe the qualifications to the given appointive office.

Achacoso Vs. Macaraig

Achacoso was the Administrator of the POEA for two years, he filed his courtesy resignation (accordingly in compliance with a request by the President). When a new appointee was named, Achacoso opposed and demanded that he be reinstated to his position. As a member of the Career Service of the CSC, he enjoys security of tenure and that he submitted his resignation only out of duress.

WON Achacoso is entitled to security of tenure

No he is not, as his appointment as Administrator of the POES was merely temporary. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications.

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of the official functions by authorizing a person to discharge the same pending the selection of a permanent or another appointee (citing Austria v. Amante)

Doc Avila: Expiration of a term is not covered by the Constitutional provision on security of tenure.

Regis Vs Osmena

Regis was appointed by then Mayor Dueterte as driver of the Cebu Police Department, his appointment was renewed three times until he took the examination and became a civil service eligible. Regis was subsequently removed from office by the next mayor (Osmena). Regis contests his removal and argued that he enjoys security of tenure, having been provisionally appointed to the position. The trial court ruled that Regis’ appointment was merely temporary and therefore his removal was justified.

WON Regis’ removal was justified

No it was not, as the provisional appointment remained valid and subsisting.

TEMPORARY APPOINTMENTS

PROVISIONAL APPOINTMENTS

Designed to fill a position needed for only a limited period not exceeding 6 months

Intended for a contingency that a vacancy occurs and the filing thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of the appointment

There exists an occasional work to be done (less than 6 months)

Interest of service requires that a certain work be done by a regular employee

All the law enjoins is that preference in filing such a position be given to persons on appropriate eligible lists. Merely giving preference presupposes that even a non-eligible may be

The appointment may be extended only to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular

appointed position in the competitive service

Temporary appointment given to non-civil service eligible is without a definite tenure of office and is dependent upon the pleasure of the appointing power.

One which may be issued upon prior authorization of the Commissioner of Civil Service to a person who has not qualified in an examination but who meets other requirements

Cuevas Vs Bacal

Bacal, a CESO III employee was appointed by Pres. Ramos to the position of Chief of Public Attorney in the Public Attorney’s Office (CES Rank I). Four years later, Pres. Estrada appointed Demaisip to the position of “Chief Public Defender”. Bacal was subsequently “appointed” to Regional Director of the Public Defender’s Office. Bacal filed a petition for quo warranto questioning her replacement as Chief Public Attorney, the trial court and Court of Appeals ruled in her favor and ordered her reinstatement. The Secretary of Justice, Serafin Cuevas, appealed to the Supreme Court and disagreed with the CA’s findings that Bacal had acquired security of tenure and may therefore be transferred/removed without just cause,

WON Bacal had acquired security of tenure

No she did not. Bacal is a CESO III and the position of Regional Director of the Public Attorney’s Office corresponds to her CES Rank III and Salary Grade 28. As Bacal did not have the rank and position for the position of Chief Public Attorney (Rank I and Salary Grade 30),she can not claim security of tenure in respect of that position.

As in the case of Achacoso v. Macaraig, a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility requirements.

The guarantee of security of tenure to members of the Career Executive Service (CES) does not extend to the particular positions to which they may be appointed but to the rank to which they are appointed by the President.

In this case, Bacal may have been considered for promotion to Rank I to make her appointment as Chief Public Attorney permanent, but this fact did not materialize as Demaisip was appointed in her place. If Bacal was paid a salary equivalent to Salary Grade 30 while she was holding that office, it was only because under the law, if a CESO is assigned to a position with a higher salary grade than that corresponding to his or her rank, he/she will be allowed the salary of the CES position.

Even in the other branches of the civil service, the rule is that, unless an employee is appointed to a particular office or station, he can claim no security of tenure in respect of any office.

Bacal, could therefore be transferred, even without her consent as within the Career Executive Service, personnel can be shifted from one position to another without violation of their right to security of tenure because their status and salaries are based on their ranks and not their jobs.

Delos Santos Vs. Mallare

De Los Santos was first appointed City Engineer of Baguio.


Mallare was thereafter appointed to the said office but De Los Santos refused to yield his position contenting that as City Engineer, he could not be removed from office without just cause. Mallare however contends that the Office of the City Engineer is a position that is highly technical in character and is therefore not covered by Sec. 4 Art. XII of the 1935 Constitution which reads “No officer or employee in the Civil Service shall be removed or suspended wxcept for cause as provided by law”.

WON the Office of the City Engineer belongs to the unclassified service, who serves at the pleasure of the appointing authority

No it does not. A city engineer does not formulate a method of action for the government or any of its subdivisions. It is technical, but not highly so, as a matter of fact, the duties of a city engineer are eminently administrative in character and could have very well be discharged by non-technical men possessing executive ability.

Three specified classes of positions are excluded from the merit system and may be dismissed at the pleasure of the appointing authority. These are policy-determining, primarily confidential and highly technical. These positions involve the highest degree of confidence, or are closely bound up with and dependent on other positions to which they are subordinate, or are temporary in nature.

It may be truly said that the good of the service itself demands that appointments coming under this category become terminable at the will of the officer who makes them.

Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primary confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.

De Los Santos is therefore entitled to remain in office as City Engineer.

Corpus Vs. Cuaderno

Martino Corpus (Special Assistant to the Governor in charge of the Export Department of the Central Bank) was administratively charged by his co-employees with dishonesty, incompetence, neglect of duty and conduct unbecoming of a public official. The Monetary Board suspended Corpus and after investigation, issued a resolution and declared Corpus to have resigned because the Governor had lost confidence in Corpus. Corpus contends that his removal was improper

WON Corpus’ removal was valid

No it was not. Corpus is protected by the Civil Service Law and his removal or suspension must be for cause recognized by law.

The loss of confidence by the Monetary Board was a mere afterthought by the Monetary Board when the charges were not proven or substantiated.

Art. XII, Sec. 1 of the Constitution merely makes the policy-determining, primarily confidential or highly technical positions as exceptions to the rule requiring appointments in the Civil Service to be made on the basis

of merit and fitness as determined from competitive examination

This should be read in line with Art. XII, Sec. 4, which provides that no officer or employee of the Civil Service shall be removed or suspended except for cause provided by law.

The tenure of officials holding primarily confidential positions ends upon loss of confidence but the situation is different for those holding highly technical positions.

PAGCOR Vs Rilloraza

Carlos Rilloraza, a Casino operations manages of PAGCOR was administratively charged for dishonesty, grave misconduct and loss of confidence for having facilitated a check of P5000.

Rilloraza was dismissed from PAGCOR, an on appeal to the CSC was subsequently reinstated. PAGCOR appeals the decision and maintains that Rilloraza was a confidential employee and therefore could be fired at will.

WON Rilloraza is a confidential employee whose employment may be terminated by the appointing authority.

Yes he is a confidential employee but he is guilty of only simple negligence and must therefore be reinstated to his position.

It is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements, such as PD 1869 can be more be than an initial determination and are not conclusive in case of conflict. It must be so. Or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Art. XII Sec. 4 [now Art. IX-B Sec. (23) of the 1987 Constitution].

In other words, Sec. 16 of PD 1869 cannot be given a literal stringent application without compromising the constitutionally protected right of an employee to security of tenure.

Doc Avila: Note Justice Regalado’s comments

The classification of positions that amount to executive or legislative declarations are not conclusive upon the courts

The exemption provided for in PD 1869 refers to exemption from competitive examination.

Positions that are policy determining, primarily confidential or highly technical are exempt from competitive examinations as a means for determining merit and fitness. These positions are covered by security of tenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations.

Espanol Vs CSC

Espanol (Chief of the Engineering Division) competed with Orlando Bulseco (Chief Design Engineer) the position of Regional Manager of the National Irrigation Administration (NIA). Despite being lower in rank, Bulseco was appointed to the position. Espanol contested Bulseco’s appointment and claimed that he should have been appointed since he was “next-in-rank”.


WON Espanol (who was next in rank) had the right to be appointed to the vacant position

No he did not. An appointment is essentially a discretionary power and must be performed according to the best lights of the appointing authority, the only condition being that the appointees shall possess the qualifications required by the law.

Art. VIII of PD 807 provides:“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 the appointment thereto as previously determined by the appointing authority and approved by the respondent commission”

In this case, both Espanol and Bulseco met the minimum qualifications for the position.

The concept of next-in-rank does not import any mandatory or preemptory requirement. The rule 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 position.

To apply the next-in-rank rule peremptorily would impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for the appointment.

Pineda Vs Claudio

Jovito Claudio, the City Mayor of Pasay appointed Villa, a state prosecutor in the DOJ as Chief of Police of Pasay. The Civil Service Commissioner held the appointment in abeyance until other persons who had a preferential right to the appointment had been considered. This included Pineda, the deputy chief of police. The CSC eventually upheld the appointment of Villa. Failing to secure a favorable ruling from the CSC, Pineda now appeals to the Supreme Court, contending, principally that, as deputy chief, he was next in rank to the position of Chief of Police and that it was mandatory on the part of the city mayor to appoint him to the position.

WON it is a mandatory and ministerial duty on the part of the Mayor to appoint Pineda (an officer next in rank) to the position of Chief of Police

No it is not. The Civil Service Act does not peremptorily require the mayor to promote the officer next in rank. It means that as far as practicable, the person next in rank should be promoted, otherwise, the vacancy may be filled by transfer, reinstatement, reemployment or certification, as the appointing power sees fit, provided the appointee is certified to be qualified and eligible, which is the basic requirement in the Civil Service Act.

The principle of seniority and next-in0rank embodied in Sec. 23, with its corollary requirements to set forht the special reason/s in case the officer next in rank is not appointed to the vacant position applies only to cases of promotion.

Therefore, when the appointing power chooses to fill the vacancy not by promotion but by transfer, reinstatement, reemployment or certification, he is under no duty whatsoever to explain his action.

The reason for this distinction is that when a person who is

a junior jumps over his senior, the ranking is disturbed and the person next in rank is actually bypassed and so it is reasonable to require the appointing power to give his “special reason/s”.

In case of a transfer, reinstatement, reemployment or certification – the person next in rank is not really bypassed because the person appointed is one who holds a position of equivalent rank as the vacant position. To the appointee, the new position is hardly a higher one.

Garcia Vs Chair, supra

Garcia’s automatic reinstatement to the government service entitles him to back wages. This is meant to afford relief to Garcia who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from service. To rule otherwise would be to defeat the very intention of executive clemency.

Gloria Vs De Guzman

Cerillo was temporarily appointed to the position of Board Secretary of the Philippine Air Force College of Aeronautics. The Board of Trustees thereafter revoked her appointment by reason of loss of confidence. Cerillo thereafter filed a petition for mandamus with the Regional Trial Court to compel the Board of Trustees to reinstate her to her position.

WON Cerillo’s action for mandamus is proper

No it is not.

Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority and whether or not the applicant enjoys the confidence and trust of the appointing power.

Reappointment to a position that is discretionary cannot be subject of an application for the writ of mandamus. Such discretionary power of appointment cannot be controlled (not even by the Court) as long as it is exercised properly by the appointing authority.

The termination of Cerillo’s appointment was proper and legal, it being the consequence of the Board of Trustee’s power to appoint.

Sison Vs. Pangramuyen

Sison (Chief Deputy Assessor) and Maliwanag (Senior Deputy Assessor) were both considered for the position of Assistant City Assessor of Olongapo City. After a recommendation made by the Civil Service Commission (CSC), Mayor Pangramuyen thereafter appointed Maliwanag to the said position. After his appeal was denied by both the Regional Director and CSC, Sison contested the validity of the appointment and claimed that at the time of Maliwanag’s appointment, he (Sison) was next in rank and also had superior educational and appropriate civil service eligibilities over Maliwanag.

WON Maliwanag’s appointment was valid

Yes it was. The Supreme Court respected the findings of the Civil Service Commission (CSC), and noted that the latter is primarily charged with the administration of Civil Service Law and rules, absent the showing of grave abuse of discretion.


Sison’s arguments were based mostly on the organizational charts and the description of positions by the CSC. These charts do not carry the approval of the Mayor as Department Head and are therefore not controlling.

Eugenio Vs. Torrijos

Eugenio (Educational Supervisor of the Education and Training Division of the National Science Development Board) contested the appointment of Torrijos (Librarian Documentation in the Philippine Textile Research Institute) to the position of Assistant Chief of the Scientific Library Documentation Division (SLDD).

The office of the SLDD was created as a result of the implementation of the Integrated Reorganization Plan of the National Science Development Board.

Eugenio claims that she has a preferential right over the position being next in rank.

WON Eugenio had a preferential right over the vacancy in the newly created office

No she did not. No person could claim to be next-in-rank to a newly created position, as at the time of the creation of the office, there was no established ranking of positions as yet. Such being the case, the contested position is open to all qualified NSDB personnel.

Discretion should be granted to those entrusted with the responsibility of administering the offices concerned – the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. In this case, Torrijos was deemed to be a qualified eligible and could therefore be validly appointed to the position.

Debulgado Vs. CSC

The incumbent Mayor of the San Carlos, Negros Occidental, appointed his wife (who had been in the City Government service for 32 years) as head of the Office of General Services. The CSC recalled the approval of the appointment and found it to be a nepotic appointment. Debulgado questions this decision and maintains that the prohibition against nepotic appointments is applicable only to original appointments and not promotional appointments

WON the appointment was a nepotic appointment, and therefore invalid

Yes it was. A promotional appointment is covered by the legal prohibition against nepotism (under Sec. 59 of the revised Administrative Code).

The following however are exempted from the operation of the rules on nepotism

1. Persons employed in a confidential capacity2. Teachers3. Physicians4. Members of the Armed forces of the Philippines

By providing for a list of exemptions, a textual examination of Sec. 59 reveals that the prohibition was cast in comprehensive and unqualified terms.

The purpose of Sec. 59 is precisely to take out of the discretion of the appointment and recommending

authority the matter of appointment or recommending for appoint a relative.

De Guzman Vs COMELEC

De Guzman filed a petition for certiorari and prohibition questioning the validity of Sec. 44 of the Voter’s Registration Act of 1996, providing for the Reassignment of Election Officers, for being violative of the constitutional guarantee on security of tenure of civil servants.

Sec. 44 provides that no election officer shall sit in an office in pa particular municipality for more than 4 years. Any officer who has served at least 4 years in a particular city or municipality shall be deemed automatically re-assigned by the COMELEC.

WON the Voters Registration Act of 1996, providing for unconsented transfers, violates the constitutional guarantee to security of tenure

No it does not. As held in Sta. Maria v. Lopez, the rule that outlaws unconsented transfers applies only to an appointed officer and not to a particular station. It does not prohibit a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the qualities of the agency.

The guarantee of security of tenure under the Constitution is not a guarantee of perpetual employment. It only means that an employee cannot be dismissed or transferred from the service for causes other than those provided by law and after due process is accorded to the employees. What is seeks to prevent is the capricious power to dismiss.

Monsanto Vs Factoran, supra

WON Monsanto may automatically be reinstated to her position after she obtained the Pardon

No she may not. Monsanto’s guilt and punishment were expunged by her pardon, and disability was likewise removed but pardon cannot go beyond that. She may apply for reappointment to the office which was forfeited by reason of her conviction.

Philippine Retirement Authority Vs Rupa

The Philippine Retirement Authority (PRA) filed a compliant against its employee, Rupa, after numerous instances of office quarrels and complaints. The Civil Service Commission found Rupa guilty of the grave offense of Conduct Grossly Prejudicial to the best interest of service for neglecting to promptly process the request of 2 Indian retires. Consequently, Rupa was suspended. On appeal, the CSC absolved RUPA of the charges and found her liable only for the less grave offense of simple neglect of duty.

WON Rupa was guilty of Gross Neglect of duty and may therefore be dismissed from employment

No she was not, she committed only simple neglect of duty, and should therefore have only been suspended. Mere delay in the performance of one’s function has been consistently considered as a less grave offense of simple neglect of duty.


Gross Neglect of Duty Simple Neglect of DutyFlagrant and culpable refusal or unwillingness of a person to perform a duty

Disregard of a duty resulting from carelessness or indifference.

Doc Avila: The PRA should have given more ground for Rupa’s suspension, while there might be cause against Rupa, the PRA did not have the right to automatically terminate her employment.

Manuel Vs. Calimag

A complaint for serious misconduct was filed against Judge Calimag, for allegedly having caused the sale of a carnapped motor vehicle. Judge Calimag was able to secure the conditional release of the case by executing under oath that he would hold himself criminally or civilly liable for violation of any of the conditions in the conditional release. The plaintiff in the case alleges that the judge committed serious misconduct providing for the conditional release of the vehicle.

WON the judge is guilty of serious misconduct

No he is not. Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is misconduct such as affect his performance of his duties as an officer and not only as such as affects his character as a private individual. In such cases, it is necessary to separate the character of the man from the character of the officer.Misconduct, misfeasance or malfeasance warranting removal from office of an officer must have direct relation and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office.

Manuel failed to present evidence showing that the acts complained of were related to the Judge’s official duties. Selling a car is not even remotely related to or connected with the discharge of his offical functions.

GSIS vs CSC

Salazar questions the validity of the termination of her employment from the GSIS, claiming that she had been granted security of tenure. She first questioned the order before the Review Committee which then referred her case to both the Merit Systems Promotion Board (MSPB) and the Civil Service Commission (CSC). The CSC directed her reinstatement but the MSPB had a contrary ruling and affirmed the termination. Salazar thereafter filed a motion for reconsideration of the MSPB’s order in lieu of the CSC’s ruling. The MSPB thereafter set aside its ruling and ordered the Salazar’s reinstatement.

GSIS then appealed this ruling but was denied, and on appeal to the Supreme Court, the GSIS maintained that the MSPB had no jurisdiction to rule over Salazar’s motion for reconsideration

Which among the MSPB or CSC has jurisdiction over Salazar’s appeal

It is the MSPB and not the Civil Service Commission that is vested with jurisdiction to hear and try cases appealed to it by those aggrieved by personnel actions of appointing authorities.

The Civil Service Commission, under the Constitution, is the single arbiter of all contests relating to the Civil Service.

BUT

PD 1409, creating the MSPB provides that the MSPB shall take cognizance of appeals from parties aggrieved by decisions of the appointing officers involving personnel action. The Commission therefore cannot take original cognizance of the cases specifically provided for under PD 1409.

In this case, Salazar’s appeal was endorsed by the review Committee to the MSPB and CSC. In the absence of a decision by the MSPB, the CSC cannot legally assume jurisdiction over the appeal.

Doc Avila: Therefore, the appeal on decisions regarding personnel action should be as follows:

1) Department Head 2) MSPB 3) CSC 4) Supreme Court

Mantala Vs. Salvador

Dr. Mantala was temporarily appointed to the position of Division Chief of the Monitoring and Evaluation Division of the TB Control Service, Office of Public Health of the DOH. Dr. Regino filed a formal protest with the Civil Service Commission (CSC) against the Dr. Mantala’s appointment, alleging that she (Regino) should have been appointed to the position. The CSC ruled against Dr. Regino, and on appeal to the Merist System Promotion Board (MSPB), Regino won. DOH appealed the decision of the MSPB to the CSC. Pending appeal, the DOH made Mantala’s appointment permanent. Subsequently, the CSC dismissed the MSPB’s ruling and upheld Mantala’s appointment. Regino then filed a petition for Quo Warranto in the Regional Trial Court which then ruled in her favor.

Mantala now appeals the ruling of the RTC on the ground of jurisdiction

WON the CSC has exclusive jurisdiction over Mantala’s appointment

Yes it does. Disciplinary cases and cases involving “personnel actions” affecting employees in the Civil Service, including “appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation” as well as employment status and qualification standards are within the exclusive jurisdiction of the CSC.

The CSC is the central personnel agency of the Government with the power and authority to:

1. Administer the civil service2. Promulgate its own rules3. Render decision in any case or matter brought

before it within 60 days from the date of the submission for decision or resolution.

The CSC’s rules on administrative disciplinary and protest cases provide for the Commission’s exercise of final and exclusive appellate jurisdiction over all cases decided by the MSPB involving contested appointments or promotions.

Protest Cases – Are those involving appointments made in favor of another next-in-rank employee who is not qualified; those made in favor of one who is not next-


in0rank, or by reinstatement or by original appointment if the employee making the protest is not satisfied with the reasons given by the appointing authority for such appointment.

1. Preventive Suspension

Gloria Vs. CA

The case arose from dismissal of several public school teachers who staged a strike to question the legality of their termination from employment. Pending investigation, the teachers were preventively suspended. The trial court eventually ruled in favor of the teachers and ordered their reinstatement and the payment of their back wages. DECs Secretary Gloria moved for a reconsideration of this decision insofar as the Court of Appeals ordered the payment of the teacher’s salaries while they were preventively suspended.

WON the teachers are entitled to compensation during their preventive suspension

Yes they are, but only for the period exceeding 90 days, during appeal.

The court first made a distinction and noted that there are 2 kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension – (1) preventive suspension pending investigation and (2) preventive suspension pending appeal is the penalty imposed by the disciplining authority is suspension or dismissal, and after review the respondent is exonerated.

Preventive suspension pending investigation is not a penalty, it is a measure intended to enable the disciplining authority to investigate charges against respondents by preventing the latter from intimidating or in any way influencing witnesses against him.

Employees who are preventively suspended pending investigation are not entitled to the payment of their salaries, even if they are not exonerated. The reason given is that salary and perquisites are the reward of express or implied service s and therefore cannot belong to one who could not lawfully perform such service.

Employees who are considered preventively suspended pending appeal are entitled to payment of their salaries if they are subsequently found innocent. Preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed.

Doc Avila: What the law authorizes is preventive suspension for a period not exceeding 90 days, beyond that the period is illegal.

Orbos Vs. Bungbung

The Philippine Ports Authority (PPA) Police Force filed a complaint with the Administrative Action Board against its Manila Port District Manager, Bungbung for dishonesty and conduct prejudicial to the best interest of service. Bungbung filed several motions and injunctions against his preventive suspension. On appeal to the Court of Appeals, the CA ordered the immediate reinstatement of Bungbung together with the payment of his salaries. The PPA appeals this decisions and argues that the 90 day preventive period of suspension had been interrupted by

the filing of the several injunctions and hence could not have been completed, therefore the payment of wages and back salaries is premature.

WON there was an interruption in the 90 day suspension period

Yes there was. Restraining orders or preliminary injunctions inhibiting proceedings in the administrative case, obtained by the suspended respondents from the courts of justice interrupt the 90-day period of preventive suspension and should be excluded in the reckoning of its permissible duration.

Upon the lapse of the balance of the period of the preventive suspension, Bungbung shall have the right to reinstatement but they are not entitled to the payment of back salaries during the period of their preventive suspension not exceeding 90 days.

Deloso Vs. Sandiganbayan

Amador Deloso, Governor of Zamboanga was charged with the violation of the Anti-Graft Law (RA 3019) for having allegedly awarded licenses to operate fish corrals in the municipal waters of Botolan (at that time, he was the incumbent Mayor). After due investigation, Deloso was preventively suspended pursuant to Sec. 13 of RA 3019. The order however does not indicate the duration Deloso’s suspension. The Sandiganbayan denied Deloso’s plea on the ground that its calendar could not accommodate an earlier date to set trial.

WON Deloso may be suspended indefinitely

No he may not. In the given case, Delos’s term of Governor is for only 3 years. The order of suspension does not have a definite period so that Deloso may be suspended for the rest of his very short term. Considering that the Sandiganbayan denied his plea for an earlier setting if the trial, an extended suspension is highly possible.

The preventive suspension which initially may be justified becomes unreasonable thus raising a question on due process. Implicit in the right to suffrage of the people is the right to the services of the people whom they elected. Also, even in cases if an acquittal, an indefinite preventive suspension would already have nullified the elective officials right to hold office. The preventive suspension thus becomes a penalty without a finding of guilt.

Sandiganbayan’s order of preventive suspension without a definite period is struck down. Deloso’s suspension should be limited to 90 days under Sec. 42 of PD 807 (The Civil Service Decree)

WON under Sec. 13 of RA 3019, an official can only be preventively suspended with regard to the office he was still holding at the time of the charge

Deloso contends that as the acts complained of were done while he was still a Mayor, he could no longer be prevented from discharging his functions as governor. The Supreme Court however maintained that the provision on preventive suspension applies to any office that the officer charged maybe holding, and not only the particular office under which he was charged.

Bautista Vs. Peralta

Bautista was administratively charged with dishonesty and violation of office regulation in the course of his


employment at the National Waterworks and Sewerage Authority. He was consequently preventively suspended pending the resolution of the administrative investigation. After 5 years of preventive suspension, Bautista was thereafter found guilty of the offense charged and was dismissed from the NWSA. After successfully appealing his case, Bautista was reinstated to his position but he was not given back wages during the 5 years that he was suspended.

WON Bautista is entitled to back wages during his preventive suspension

Yes he is. Preventive suspension in administrative cases is not a penalty in itself. It is designed merely as a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated.

Denying Bautista his back wages would in effect increase the 2 months of suspension meted out to him and convert the preventive suspension into a penalty in itself.

Lastimosa Vs. Vasquez

An administrative complaint for grave misconduct, insubordination, gross neglect of duty was filed against Gloria Lastimosa, the First Assistant Provincial Prosecutor of Cebu. Despite the Ombudsman’s order to set the case for preliminary investigation, Lastimosa refused the directive and was subsequently placed under preventice suspension. Lastimosa questions the validity of the suspension order as there was no prior notice or hearing that was communicated to her. Lastimosa also maintains among others that the Office of the Ombudsman has no jurisdiction over the case against the mayor because the crime involved (rape) was not committed in relation to a public office.

WON the Office of the Ombudsman has power to call on the provincial prosecutor to assist it in the prosecution of the case

Yes it does. The power of the Ombudsman has been held to include investigation and prosecution of any crime committed by a public official regardless of whether the acts or omissions complained of are related to, or connected with, or arise from the performance of his official duty. It is enough that the act was committed by a public official.

WON Lastimosa is entitled to notice and hearing

No she is not. Suspension is a preliminary step in an administrative investigation. Being a mere preliminary step and not being a penalty, prior notice and hearing is not required. (citing Nera v. Garcia).

WON Lastimosa should be suspended for only 90 days

Lastimosa claims that her preventive suspension of 6 months is over and beyond the period provided by law. The Supreme Court however held that the 90-days cap applies only to cases where the law is either silent or expressly limits the period of suspension to 90 days. In the given case, Lastimosa was preventively suspended under Sec. 24 of the Ombudsman Act which specifically provides for a duration of “not more than 6 months”.

Garcia Vs. Mojica

A complaint was filed against Mayor Garcia and 8 other city officials of Cebu City for the alleged anomalous purchase of asphalt from F.E. Zuellig. The Ofc of the Ombudsman issued an order placing the said officials under preventive suspension without pay for a maximum period of 6 months. The said contracts were entered into four days before the local election. Garcia was reelected as Mayor.

WON the Deputy Ombudsman committed GAD when he set the period of preventive suspension at 6 months.

YES. Under Sec. 74 of LGC, preventive suspension may be imposed when, among other factors, the evidence of guilt is strong and the period must not exceed 6 months. The determination of WON the evidence of guilt is strong rests with the Ombudsman. In this case, the imposition of the 6 month suspension is unwarranted because the purpose for the suspension, which was to enable the investigating authority to gather documents without intervention from Garcia, was already achieved during the nearly month-long suspension of Garcia.

WON a public official maybe suspended before the issues are joined.

YES. Administrative complaints filed before the Ombudsman are distinct from those initiated under the LGC. There is nothing in the LGC that would indicate that it has repealed, expressly or impliedly, the pertinent provisions of the Ombudsman Act. There could be preventive suspension even before the charges against the official are heard, or before the official is given an opportunity to prove his innocence. Preventive suspension is merely a preliminary step in an administrative investigation.

WON the Ombudsman can hold Garcia administratively liable considering that the latter was reelected?

NO. A reelected local official may not be held administratively liable for acts committed during his prior term of office. Although the deliveries of the asphalt were made during the second term of Garcia, the contract was perfected on the date it was signed- 4 days before the election. Any culpability Garcia may have in signing the contract became extant on the day that it was signed.

Espiritu Vs. Malgar

A complaint was filed against Mayor Malgar for, among others, grave misconduct, oppression and conduct prejudicial to the best interest of the public service before the DILG Secretary. Another complaint was filed with the Presidential Action Center, Ofc of the Pres. This was forwarded to the Governor with a request for prompt action. The Sangguniang Panlalawigan recommended to the Governor that Mayor be preventively suspended for 45 days pending the investigation of the administrative complaint. Mayor was placed under preventive suspension. So Mayor filed “Petition for Certiorari with Preliminary Injunction with prayer for Restraining Order before the RTC. RTC judge issued a writ of preliminary injunction enjoining Gov from implementing the Order of suspension.

WON the Governor has the power to suspend Mayor.


YES.Citing Sec. 63, Chap IV of the LGC, the provincial governor is authorize by law to preventively suspend the municipal mayor at anytime after the issues had been joined and any of the following grounds were shown to exist:1. When there is reasonable ground to believe that the

respondent has committed the act or acts complained of;

2. When the evidence of culpability is strong;3. When the gravity of the offense so warrants; or4. When 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.

The Mayor’s recourse to the RTC is premature for failure to exhaust administrative remedies. He should have sought relief first from the Sec of DILG. As a general rule, the office or body that is invested with the power of removal or suspension should be the sole judge of the necessity and sufficiency of the cause. Unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard for the principle of separation of powers demand that the action of said officer or body should be left undisturbed.

2. Civil Service, Right to Self Organization,

ART III, Sec. 8The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

MPSTA Vs. Laguio

Some 800 public school teachers held mass-concerted action to press for, among others, the immediate payt of their chalk, clothing allowances and 13th month pay. DECS Sec. issued an order directing them to return to work within 24 hours or face dismissal. However, the teachers did not heed the Sec’s call so the latter filed administrative complaints against the former.

Held: The teachers’ resort to the SC for prohibition is premature. Their remedy is not to halt the administrative proceedings but to take part, assert and vindicate their rights therein and if adjudged guilty, appeal to the CSC; or if pending said proceedings, immediate recourse to judicial authority was believed necessary because the Sec acted with grave abuse or in excess of his jurisdiction, to apply, not directly to the SC, but rather to ht RTC, where there would be an opportunity to prove relevant facts warranting corrective relief.

SSSEA Vs. CA

WON employees of the SSS have the right to strike.

NO. The Constitution recognizes the right of government employees to organize. But it is silent as to whether such recognition includes the right to strike. EO 180 provides that the Civil Service law and rules governing concerted activities and strikes in the govt service shall be observed, subject to any legislation that may be enacted by Congress. Memo Circ No. 6 s. 1987 if the Civil Service Commission enjoins all govt officers and employees from staging strikes, demonstrations and other forms of mass actions. SSS employees are covered by the Civil Service Laws; hence, this prohibition applies to them too.

But the employees may negotiate where the terms and conditions of employment involved are not among those fixed by law. They may, thru their unions, either petition the Congress for the betterment of the terms and conditions of their employment, which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those that are not fixed by law. TUP Vs. NHA

Trade Union of the Phils and Allied Services filed a petition for the conduct of a certification election to determine the exclusive bargaining agent of the workers in Natl Housing Corp. This was dismissed by the med-arbiter. On appeal, this was reversed by the BLR Director. But, this order was set aside by the Officer in charge.

WON the employees of NHC have the right to self-organization.

Yes. The right to form unions is explicitly recognized and granted to both the govtl and private sectors. This is enshrined in the Bill of Rights as well as in the 2nd

paragraph of Sec.3 ART XIII on Social Justice and Human Rights and in Paragraph 5 Sec. 2 ART IX-B of the Constitution. Moreover, under the present Constitution, the civil service now covers only GOCCs with original charters and not those incorporated under the Corporation Code. NHC, being a GOCC without an original charter, is governed by the Labor Code. Under Art 244 of the Labor Code, employees of govt corps established under the Corpo Code shall have the right to organize and bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law.

In so far as certification elections are concerned, the distinction between the two types of GOCCs and the laws governing employment relations therein have been rendered academic by the 1987 Constitution and the Labor Code. Whether the employees of NHC are covered by the Labor Code or by the civil service laws, a certification election may be conducted.

V. SCOPE AND EXTENT OF AUTHORITY OF PUBLIC OFFICERS

A. DurationB. Where exercisedC. How exercisedD. Types of Duties

Discretionary


Lamb Vs. Phipps

Held: Discretion maybe defined as 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. When applied to public functionaries, discretion means a power or right conferred upon them by law, of acting officially, under certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.

Ministerial

Binamira Vs. Garrucho

Binamira was designated Gen Mgr of the Phil Tourism Authority by Gonzales, the Minister of Tourism and Chairman of the PTA Board. Almost 4 years since his designation, the new Secretary of Tourism, Garrucho, demanded Binamira’s resignation. Pres. Aquino designated Garrucho as GM since the designation of Binamira was invalid because PD 564 requires that designation shall be made by the President and not by the Secretary. Binamira claimed security of tenure.

WON Binamira’s designation by the Minister of Tourism was valid.

NO.PD 564 provides that the GM of the PTA shall be appointed by the President. There is a difference between appointment and designation. Appointment is the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. On the other hand, designation connotes merely the imposition by law of additional duties on an incumbent official. Appointment involves the exercise of discretion, which because of its nature, cannot be delegated. Hence, it was not possible for Minister Gonzales to assume that discretion as an alter ego of the President.

Assuming arguendo that the power conferred on the President could be validly exercised by the Secretary (doctrine of qualified political agency?), such doctrine does not apply in this case. The doctrine presumes the acts of the Department Head to be the acts of the President when performed and promulgated in the regular course of business and such acts are valid only if not disapproved or reprobated by the Chief Executive. In this case, the act of Minister Gonzales were reprobated by the President upon the latter’s designation of Garrucho as GM of the PTA.

Lamb Vs. Philipps

A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer, and gives him the right to decide or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment.

VI. SALARY AND BENEFITSA. Definitions

i. Salary

ii. Wage

GSIS Vs. CSC, supra

B. Right to CompensationC. Restrictions on CompensationD. Honoraria and per Diems, Se. 267

and 268, COA Gov’t Auditing Rules and Regulations

Santiago Vs. COA

Santiago was employed in the COA as State Auditor IV with a monthly salary of P7,219.00. He was later designated s Asst GM for Finance and Administration of the MIAA. The salary for such position was P13,068.00. MIAA issued a resolution stating among others, that Santiago’s compensation from MIAA shall be the difference between the salary of Asst GM of MIAA and that of State Auditor IV of the COA. When Santiago retired from govt service, COA paid his retirement benefits on the basis of his monthly salary as State Auditor IV. Sol Gen argued that additional compensation received by Santiago was merely an honorarium and not a salary, such that if it’s a mere honorarium it should not be included in the computation of the retirement benefits under Sec. 9 of EO 966.

WON the retirement benefits shall be computed on the basis of his salary as State Auditor IV.

No. Honorarium is defined as something given not as a matter of obligation but in appreciation for services rendered, a voluntary donation in consideration of services that admit of no compensation in money. The additional compensation given to Santiago was in the nature of a salary because it was received by him as a matter of right in recompense for his services rendered as Acting Asst GM.

As to the argument that Santiago was merely designated and not appointed as Asst GM, the SC ruled that in Sec. 9 of EO 966, the term “appointment” was used in a general sense to include “designation.” This interpretation is reasonable considering that the provision includes in the highest salary rate “compensation for substitutionary services or in an acting capacity.” Such would not always need a permanent appointment. It cannot be said that his second office is merely an extension of his job as State Auditor IV because the former was distinct and separate from the latter. For such additional services, he was entitled to additional compensation, which should be included in the highest basic salary rate for purposes of computing his retirement benefits.

E. Other Benefits, Cruz p. 152-155F. Retirement, Cruz, p. 156-159

i. GSIS1. compulsory2. optional

Cena Vs. CSCIssue: May a govt employee who has reached the compulsory retirement age of 65 years, but who has rendered 11 yrs, 9 mos and 6 days of govt service, be allowed to continue in the service to complete the 15 year service reqt to enable him to retire with the benefits of an old-age pension under the Revised GSIS Act?


Held: Yes. The powers granted to the CSC by the Administrative Code of 1987 do not vest upon it the authority to limit to only 1 year the extension of service of an employee who has reached the compulsory retirement age of 65 without having completed 15 years of service, when said limitation has no relation to or connection with the provision of the law supposed to be carried into effect. Also a general law such as the Admin Code cannot modify or alter a specific law such as the Revised GSIS Act, otherwise, the intent and purpose of the provisions on retirement and pension of the said ACT would be rendered nugatory. It should be noted that under the GSIS Act, if the employee has less than 15 years of service, he shall be allowed to continue in the service to complete the 15 years.

ii. Local Government Officials, Civil Code Art 32, RA 7160 Sec. 340; 342

iii. Ministerial Officersiv. Liability for Acts of

Subordinatesv. Remedies

G. Rights and Privileges

VII. TERMINATION OF OFFICIAL RELATIONS

Modes

1. Expiration of Term

Paredes Vs. Abad

Held: Sec. 9 Art XVII of the transitory provision of the 1973 Constitution made indefinite the 4 year term of elective provincial, city and municipal officials as it provided for a hold-over. Such that those who were duly elected shall continue in office until otherwise provided by law or decreed by the President. They hold their offices under the term to which they have been elected, although the same is now indefinite.

A term of ofc is different from the right to hold ofc. A “term” of ofc is the period during which an elected officer or appointee is entitled to hold office, perform its functions and enjoy its privileges and emoluments. On the other hand, a “right” to hold ofc is the just and legal claim to hold and enjoy the powers and responsibilities of the ofc.

Nueno Vs. Angeles

Manila was still under the Japanese occupation so the general election to elect the Members of the Municipal Board of the city was not held as mandated by the Constitution. The President of the Commonwealth appointed Angeles et al and 4 of those elected in the previous election as members of the Board. Nueno et al alleged that since they were elected in the last elections, their term did not yet expire because they were not able to serve their term completely due to the Japanese occupation.

WON Nueno et al are entitled to hold-over as mems of the Municipal Bd notwithstanding the expiration of their term of office.

No. Term of office must be distinguished from tenure. Term refers to the time during which the officer may claim to hold the office as of right, and fixes the interval after which several incumbents shall succeed another. Tenure refers to the term during which the incumbent actually hold the office. The term of office is not affected by the hold-over. Since their term expired in 1943, their ofc became vacant. Until the elections be held, under CA No. 357, the President has the power to fill the temporary vacancies.

Lecaroz Vs. Sandiganbayan

Lenlie Lecaroz was the outgoing chairman of the Kabataang Barangay . However, in the 1985 elections, he did not run as he was already overage, and Jowil Red won. Red was then appointed by Pres Marcos as member of the Sangguniang Bayan of Santa Cruz. However, he was not allowed to sit in the Sanggunian by Mayor Lecaroz.

WON Lecaroz can hold on to the ofc after the expiration of his term.

Yes. When applied to a public officer, the concept of hold-over implies that the office has a fixed term and the incumbent is holding onto the succeeding term. The law usually provides that a person appointed for a fixed term shall remain in ofc not only for that term but until their successors have been elected and qualified. And where this provision is found, the ofc does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it.

Although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after the expiration of his term in case his successor fails to qualify, it does not say that he is proscribed from holding over. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise, it is reasonable to assume that the law-making body favors the same.

Since Red never qualified for the post due to his invalid oath taking, Lecaroz remained KB rep to the Sanggunian, albeit in a carry-over capacity, and was a de jure officer entitled to receive the salaries and all of the emoluments appertaining to the position.

2. Resignation

Estrada Vs. Desierto

WON Erap resigned as President of RP.

Yes he did. Resignation is a factual question and its elements are:1. there must be an intent to resign; and2. the intent must be coupled with acts of

relinquishment

There is no form governing the validity of a resignation. As long as the resignation is clear, it must be given legal effect.

Using the totality test – totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue- the SC held that Erap resigned as Pres. This was shown in the following acts:

1. He acknowledged the oath-taking of GMA as pres of RP;


2. He emphasized that he was leaving the Palace for the sake of peace and in order to start the healing process of the nation;

3. He expressed his gratitude to the people for the opportunity to serve them;

4. he assured that he will not shirk from any future challenge that may come ahead in the same service of our country; and he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity.

Ortiz Vs. Comelec

Ortiz was appointed commissioner of the COMELEC by Pres. Marcos. Together with 2 other commissioners, they sent a letter to Pres. Aquino saying that they are placing their position at her disposal. Aquino accepted their resignation. However, COMELEC ruled that that they are not entitled to retirement benefits because they resigned from their position.

WON Ortiz resigned.

No. Ortiz’s separation from govt service as a result of the reorganization ordained by the Aquino administration may not be considered ‘resignation’ in contemplation of law. Resignation is the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment.

A courtesy resignation cannot be properly interpreted as resignation in the legal sense because it is not necessarily a reflection of a public official’s intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power. Hence, a stringent interpretation of courtesy resignation must be observed, particularly in cases involving constitutional officials.

Ortiz’s case should be placed in the same category as one holding a primarily confidential position whose tenure ends upon his superior’s loss of confidence in him.

3. Abandonment

Floresca Vs. Quetulio

Floresca is not entitled to his previous position as pre-war justice because he has abandoned it when he refused to assume the said post after being required by the proper authorities to do so. Also, he subsequently accepted other employments. In his application submitted to the committee in charge of passing upon government positions in Ilocos Norte, he made it clear that he wanted to be appointed to any position other than that of the justice of peace. To reinstate him in his previous position would be to allow a govt official to subordinate public interest to personal comfort and convenience.

City of Manila Vs. Subido

Mayor Villegas submitted to the Commissioner of Civil Service about 500 appointments of for Manila. But Subido refused to take action saying that Villegas is no longer Mayor as he assumed the position of Director for NAWASA.

WON Villegas abandoned his position as Mayor upon joining the NAWASA Board.

No. Villegas did not abandon his post as Mayor as he was merely designated as Acting Director of NAWASA. Also, Subido has no authority to indirectly oust an incumbent official by refusing to approve any appointment extended by the latter. The law provides that an official may be ousted by the filing of a quo warranto proceeding by the Sol Gen or by the party who claims to be entitled to the office.

Santiago Vs. Agustin

Santiago was an elected member and the President of the Municipal Bd of the City of Manila. He was appointed as Acting Mayor by the Gov Gen. However, his appointment was not confirmed by the Phil Senate. So he reassumed the office of member of the Municipal Bd. But a preliminary injunction was issued restraining him from discharging the duties of the said ofc. In the meantime, Agustin was appointed by the Gov Gen to Santiago’s ofc.

WON Santiago’s position was vacant

No. A public ofc may become vacant by abandonment. To constitute as such, the abandonment must be total, and under such circumstances as clearly to indicate an absolute relinquishment. Temporary absence is not sufficient.

In the case at bar, Santiago did not abandon his ofc as he never took the oath of ofc as City Mayor. In fact, he indicated to the Municipal bd his intention to fill the new ofc temporarily and then return to his position as member of the Bd.

4. Acceptance of Incompatible Office

Canonizado Vs. Aguirre

Canonizado was a commissioner of the National Police Commission. But due Sec. 8 of RA 8551, he was removed from office. Subsequently, the SC declared the said provision as unconstitutional for being violative of his constitutionally guaranteed right to security of tenure. During the pendency of the case, Canonizado was appointed as Inspector General of the Internal Affairs Service of the PNP. By accepting the said position Exec. Sec. Aguirre contend that Canonizado is deemed to have abandoned his claim for reinstatement to the NAPOLCOM since the offices of NAPOLCOM Commissioner and that as Inspector General of the IAS are incompatible.

Held: Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. To constitute as abandonment, two requisites must be met: 1) an intention to abandon; and 2) an overt or external act by which the intention is carried into effect.

A person holding a public office may abandon such office by non-user or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. But nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform. On the other hand, acquiescence refers to the agreement of the officer in his wrongful removal or discharge. But, where there is no willfull desire or intention to abandon the office, the public officer vacates it in deference to the requirements of a statute which is later declared to be unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover


the office. In this case, Canonizado was compelled to vacate his office on the strength of Sec. 8 of RA 8551.

Canonizado’s acceptance of the second position did not result in the abandonment of his claim to reinstatement to the NAPOLCOM. The incompatibility rule states that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. The incompatibility contemplated is not the mere physical impossibility in the performance of duties of the two offices, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. This does not apply in this case because at no point did Canonizado discharge the functions of the two offices simultaneously.

Zandueta Vs. Dela Costa

Zandueta was presiding over the 5th Branch of CFI Manila by virtue of the appointment issued to him on June 2, 1936. On Sept 8, he received a new ad interim appointment issued in accordance with CA 145 to discharge the ofc of judge of CFI with authority to preside over the 5th branch of CFI Mla and CFI Palawan.

WON Zandueta abandoned his first appointment when he accepted his second appointment.

Yes. The territory over which Zandueta could exercise jurisdiction is wider in his second appointment. This showed the incompatibility between the two appointments. In accepting this appointment and by taking the necessary oath and in discharging the duties, Zandueta abandoned his appointment dated June 2.

The rule of equity provides that when a public official voluntarily accepts an appointment to an office newly created or reorganized by a law, qualifies for the discharge of the functions thereof by taking the necessary oath, and enters into the performance of his duties by executing acts inherent in said newly created or reorganized office and receiving the corresponding salary, he will be considered to have abandoned the office he was occupying by virtue of his former appointment.

By accepting his second appointment, he is estopped from questioning the constitutionality of the law by virtue of which he has been appointed.

5. Removal

Ingles Vs. Mutuc

Ingles et al, who are civil service eligibles, received a communication from Exec. Sec. Mutuc advising them that their services with the Govt are terminated.

Held: The positions of Ingles et al (as secretaries in the President’s Private Ofc) do not indicate that they their positions are “primarily confidential” in nature. The compensation attached and the designation given suggest the purely, or, at least, mainly clerical nature of their work. The burden of proof to show that the position of Ingles et al belong to positions which are policy determining, primarily confidential and highly technical rests with the defendant.

The incumbent of a primarily confidential position holds office at the pleasure of the appointing power. So when

such pleasure turns into displeasure, the incumbent is not “removed” or “dismissed” from office, but rather, his “term” merely “expires.”

Lacson Vs. Romero

Lacson was appointed as provincial Fiscal of Negros Oriental. Subsequently, he was appointed as provincial fiscal of Tarlac while Romero was appointed as fiscal of Neg. Or. But, Lacson neither accepted nor assumed the office of fiscal of Tarlac.

WON Lacson is entitled to his position as Provincial Fiscal of Neg. Or.

Yes. For the appointment as fiscal to be complete, the following reqts must concur: a) nomination by the Pres.; b) confirmation by the CA; and c) acceptance of the appointee by his assumption to the office. Since Lacson did not accept the post as fiscal of Tarlac, he continues as fiscal of Neg. Or. and no vacancy in the said position was created by his nomination and confirmation as fiscal of Tarlac.

The position of a provincial fiscal is included in the Civil Service. Hence, he could not be removed except for a just cause. His transfer to Tarlac was equivalent to his removal as fiscal of Neg. Or, and such removal was illegal and unlawful for lack of valid cause as provided by law and the Constitution.

Cruz Vs. Navarro

Rodriguez was exonerated from the administrative cases filed against him and the SC has ordered his reinstatement to his previous position. Despite of this order, the Sec. of Health issued an order relieving Rodriguez of his position as Chief of the National Mental Hospital, and reassigning him on temporary detail to the Bureau of Medical Services.

Held: Although the general rule is that, public officials maybe temporarily assigned or detailed to other duties even over his objection without necessarily violating his fundamental and legal rights to security of tenure in the civil service for the good of public service and whenever public interest demands. But such cannot be undertaken when the transfer of the employee is with a view to his removal and if the transfer is resorted to as a scheme to lure the employee away from his permanent position because such attitude is improper as it would in effect result in a circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service.

Cuevas Vs. Bacal

Bacal holds the rank of CESO III and was appointed to the position of Chief Public Attorney in the Public Attorney’s Ofc, which has a CES Rank Level I. She was subsequently transferred to the Ofc of the Regional Director of the PAO without her consent.

Held: Bacal’s appointment to the position of Chielf Public Attorney cannot be considered permanent because she does not have the rank appropriate for such position. A permanent appointment can be issued only to a person who meets all the reqts for the position to which she is appointed, including the appropriate eligibility prescribed.

Also, appointments, assignments, reassignments, and transfers in the Career Executive Service are based on rank. Hence, security of tenure in the career executive


service is thus acquired with respect to rank and not to position. Within the Career Executive Service, personnel can be shifted from one office or position to another without violation of their right to security of tenure because their status and salaries are based on their ranks and not on their jobs. In this case, Bacal did not acquire security of tenure by the mere fact that she was appointed to the higher position of Chief Public Atty since she was not subsequently appointed to the rank of CESO I.

6. Impeachment

7. Forfeiture

Perez Vs. Provincial Board

Perez was nominated twice to the position of provincial fiscal of Nueva Ecija and his confirmation was bypassed twice too. Still he took his oath of office pursuant to his first appointment. The Provincial Bd passed a resolution ordering the Provincial Treasurer to stop the payment of his salaries as acting provincial fiscal.

The issue of whether or not the Provincial Bd has the power to enact a Resolution not recognizing Perez’s assumption to office as acting provincial fiscal was rendered moot and academic when Perez filed his certificate of candidacy for the office of the mayor in the local elections. The mere filing of a certificate of candidacy constitutes forfeiture of his right to the controverted office under Sec. 29 of the Election Code of 1978.

PNOC Vs. NLRC

While holding the position as Geothermal Construction Secretary, Pineda filed his certificate of candidacy for the position of councilor of the Municipality of Kananga. Although he was elected and assumed office as councilor, he continued working for PNOC-EDC. Eventually, PNOC-EDC terminated his employment. So, Pineda filed a complaint for illegal dismissal.

WON an employee in a GOCC without an original charter falls within the scope of Sec. 66 of the Omnibus Election Code.

Yes. In the review of the Omnibus Election Code, Congress did not distinguish between the two classes of GOCCs- whether incorporated under an original charter or a general law- as regards the rule that any employee in GOCCs shall be considered ipso facto resigned from office upon the filing of his certificate of candidacy. The SC held that a GOCC does not lose its character as such on the basis of how it was created, and that its employees, even if not covered by the Civil Service but by the Labor Code, are nonetheless “employees in GOCCs,” and come within the ambit of Sec. 66 of the OEC, declaring them ipso facto resigned from office upon filing of their cert of candidacy. Hence, Sec. 66 of the OEC constitutes just cause for the termination of employment in addition to those set forth in the Labor Code.

8. Recall, Const. Art. X, Sec. 3; RA 7160 Secs. 69-75

Garcia Vs. COMELEC

Some mayors, vice mayors and members of the 12 municipalities of the province of Bataan constituted

themselves into a Preparatory Recall Assembly to initiate the recall election of Governor Garcia. A resolution was passed for the recall of Garcia on the ground of loss of confidence. Garcia filed before the COMELEC a petition to deny due course to the said resolution alleging that it failed to comply with the substantive and procedural requirements. This was dismissed by the COMELEC and a recall election was scheduled thereafter. Garcia filed a petition for certiorari and prohibition before the SC alleging that Sec 70 of the Local Govt Code is unconstitutional because the people have the sole right WON to initiate recall proceedings and that it violated the right of elected local officials to equal protection of law.

Held: There are two reasons why the alternative mode of initiating the recall process thru an assembly was adopted: 1) to diminish the difficulty of initiating recall thru the direct action of the people; and 2) to cut down on its expenses.

There is nothing in the Constitution that says that the people have the “sole and exclusive” right to decide on whether to initiate a recall proceeding. On the contrary, the Constitution mandates that Congress enact a local govt code which shall provide for a more responsive and accountable local govt structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum. Pursuant to this mandate, Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people.

PRAC is initiation by the people, albeit indirectly. The people can act thru their representatives. Also, the PRA resolution of recall merely starts the whole process.

The equal protection clause is not violated as the composition of the PRA is politically neutral. Its membership is not apportioned to political parties. It includes all the elected officials in the province concerned. Also, the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are representatives of the people and as such, loss of confidence cannot be premised on mere differences in political party affiliations.

9. AbolitionDe la Llana Vs. AlbaDela Llana et al (judges) questioned the validity of BP 129. Said law mandated that justices and judges of inferior courts from the CA to municipal circuit courts, unless appointed to the inferior courts established by BP129, would be considered separated from the judiciary.

Held: The abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. So that the abolition of an office would not amount to illegal removal of the incumbent, the abolition must be done in good faith.


Dario Vs. Mison

Pursuant to the executive orders and directives issued by the President on the reorganization of various government offices, Mison, as Commr of Customs, issued a Memo containing guidelines on the Implementation of Reorganization Executive Orders. He also constituted a Reorganization Appeals Board charged with adjudicating appeals from removals under the said Memo. He then issued notices to various customs officials terminating their services and that they are performing their functions on a hold-over capacity. 394 officials and employees of the BOC were given individual notices of separation. The CSC promulgated a ruling ordering the reinstatement of the 279 employees who appealed before it.

Held: Mison’s reorganization of the BOC was invalid. The SC made a distinction between removals from separations arising from abolition of office not by virtue of the Constitution as a result of the reorganization carried out by reason of economy or to remove redundancy of functions and removals undertaken to comply with clear and explicit constitutional mandates. In the former, the government must prove GOOD FAITH, while in the latter, the govt is not hard put to prove anything simply because the Constitution allows it.

Reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. In this case, there is no dismissal or separation because the position itself ceases to exist. But if the abolition is nothing else but a separation or removal done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition take place and whatever “abolition” is done is VOID AB INITIO.

In this case, good faith was belied by the fact that Mison replaced the 394 Customs personnel with 522 employees.

Larin Vs. Exec Sec.

The Sandiganbayan convicted Larin, then Asst Commissioner of the BIR and his co-accused for violations of the Tax Code. An Executive Committee was created to investigate the administrative charge against Larin. Meanwhile, Pres. Ramos issued EO 132, streamlining the BIR. The Specific Tax Service, where Larin was the Asst Commr, was abolished by the said executive order. Thereafter, Larin was found guilty of grave misconduct in the administrative charge and was imposed the penalty of dismissal with forfeiture of his leave credits and retirement benefits. While the petition questioning his removal from office is pending before the SC, the SC set aside his conviction in the criminal cases. The subject of the Criminal Cases are the very same acts for which Larin is held to be administratively liable.

Held: The position of Asst Commr of the BIR is part of the Career Executive Service. Under the law, Career Executive Service officers are appointed by the President and as such, they are under the direct disciplining authority of the President. This power of removal is not absolute. Under the Admin Code of 1987, career service is characterized by security of tenure, as distinguished from non-career service whose tenure is coterminus with that of the appointing authority or subject to his pleasure, or limited to a period specified by law or to the duration of a particular project for which purpose the employment was made.

Although administrative cases are independent from criminal actions for the same act or omission, the acquittal of Larin in the criminal case necessarily carries with it the dismissal of the administrative action against him because of the categorical and clear finding of the Court that the acts for which he was administratively held liable are not unlawful and irregular.

Mendoza Vs. Quisumbing

Held: Any reorganization in Govt must follow the bona-fide rule. The executive implementers of the policy of reorganization required to abide by the intent and purpose stated in the grant of power and to follow the guidelines set out for them.

The reorganizations embodied in this consolidated petition were set aside because the heads of the departments and agencies concerned have chosen to rely on their own concepts of unlimited discretion and progressive ideas on reorganization.


SLIDES FROM PROF. AVILA’s LECTURE

Casting and Counting

Board of Election Inspectors (BEI)The primary function of the BEI for each precinct is to conduct the voting and counting of votes in their respective polling places.

Composition (§ 13, R.A. No. 6646)1. Chairman - public school teacher

2. Member - public school teacher

3. Poll Clerk - public school teacher

Composition (§ 2, R.A. No. 8436)

For the purpose of the May 11, 1998 elections, there shall be special members composed of:

a 4th member in each precinct; and,a Comelec representative who is authorized to operate the counting machine.

Both shall conduct the counting and recording of votes of the national ballots in the designated counting centers.

Disqualification (§ 167, BP Blg. 881)

Relationship - No person shall serve as chairman or member of the BEI if he is related within the 4th civil degree of consanguinity or affinity:

to any member of the BEI; or,

to any candidate to be voted for in the polling place or his spouse.

CASTING OF VOTES

Voting hours?7:00 a.m. to 3:00 p.m., except when there are voters present within 30 meters in front of the polling place who have not yet cast their votes

The voting shall continue but only to allow said voters to cast their votes without interruption (§ 190, B.P. Blg. 881).

Voter verifies if his name is on the list Chairman delivers the ballot Voter chooses from the list of candidates Voter secretly fills his ballot Voter fills his ballot Chairman detaches the coupon then

deposits the folded ballot in the compartment for valid ballots

Persons allowed in and around the polling place

Members of the BEI Watchers Comelec representatives Voters casting their votes


Voters waiting for their turn to get inside the booths

Voters waiting for their turn to cast their votes whose number shall not exceed 20 at any one time (§ 192, B.P. Blg. 881).

Persons not allowed to enter or stay inside the polling place?

Any officer or member of the AFP and PNP

Any person belonging to any extra-legal police agency, special forces, reaction forces, strike forces, home defense units, barangay tanod, or other similar forces or para-military forces, including special forces, security guards, special policeman, and all other kinds of armed or unarmed extra-legal police officers

Any barangay official except to vote or when serving as a watcher or member of the BEI (§ 192, B.P. Blg. 881).

Under the Manual System, how does a voter fill his ballot?

By writing in the proper space for each office the name of the individual candidate for whom he desires to vote (§ 195, B.P. Blg. 881).

Manual System – Official BallotManual System – Official Ballot

Under the Automated Election System, how does a voter fill his ballot?

By completely blackening the oval before the candidate name of his choice. Automated System – Proposed Official BallotAutomated System – Proposed Official BallotAutomated System – Proposed Official BallotAutomated System – Proposed Official BallotAutomated System – Proposed Official BallotAutomated System – Proposed Official BallotAutomated System – Proposed Official BallotAutomated System – Proposed Official BallotAutomated System – Proposed Official BallotAutomated System – Proposed Official Ballot

Procedure for challenging an illegal voter?

1. Any voter, or watcher may challenge any person offering to vote:

for not being registered; for using the name of another; or,

for suffering from existing disqualification.

2. The BEI shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter (§ 199, B.P. Blg. 881).

3. The voter’s failure or inability to produce his voter's affidavit upon being challenged, shall not preclude him from voting if:

his identity be shown from the photograph, fingerprints, or specimen signatures in his approved application in the book of voters; or,

he is identified under oath by a member of the BEI and such identification shall be reflected in the minutes of the BEI (§ 199, B.P. Blg. 881).

Book of VotersBook of Voters

Is there a required “record of challenges”?Yes.

The poll clerk shall keep a prescribed record of challenges and oaths taken in connection therewith and the resolution of the BEI in each case and, upon the termination of the voting, shall certify that it contains all the challenges made (§ 202, B.P. Blg. 881).

Is there a prohibition on premature announcement of voting?

Yes. No member of the BEI shall, before the termination of the voting, make any announcement as to:

whether a certain registered voter has already voted or not

how many have voted or how many so far have failed to vote

any other fact tending to show or showing the state of the polls

how a person voted, except as witness before a court (§ 205, B.P. Blg. 881).


COUNTING OF VOTES

1. Opening of the ballot box2. Removal of excess ballots3. Removal of marked ballots4. Reading and Recording5. Alteration and Correction in the ERs6. Announcement of the result7. Issuance of Certificate of Votes8. Delivery of the ballot boxesElection ReturnElection ReturnElection Return

What are the so-called “rules for the appreciation of ballots”?

These are the rules enumerated under § 211 of B.P. Blg. 881 that should be observed by the BEI in the reading of the ballots.

Under these rules, it is presumed that every ballot is valid unless there is clear and good reason to justify its rejection since the object of the election is to obtain the expression of the voter's will.

What are some examples of these rules?1. If there are 2 or more candidates with the same

full name, first name or surname and one of them is the incumbent, and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent (No. 2, § 211 of B.P. Blg. 881).

2. When on the ballot is written a single word which is the first name of a candidate and which is at the same time the surname of his opponent, the vote shall be counted in favor of the latter (No. 5, § 211 of B.P. Blg. 881).

3. When in a space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter (No. 9, § 211 of B.P. Blg. 881).

4. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid (No. 16, § 211 of B.P. Blg. 881).

5. If the candidates voted for exceed the number of those to be elected, the ballot is valid, but the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered (No. 18, § 211 of B.P. Blg. 881).

Counting – Manner of Counting (§ 210, BP Blg. 881)1. Unfold the ballots and form separate piles of 100 ballots each

2. BEI chairman - takes the ballots of the first pile one by one and READS the names of candidates voted for and the offices for which they were voted

The watcher should be able to read the names and see to it that the chairman reads the vote as written on the ballot.

Clear the table of all unnecessary writing paraphernalia!

3. Poll clerk - records on the ER each vote as the names are read

4. Third member – on the Tally Board

5. BEI chairman - signs and affixes his thumbmark at the back of the ballot immediately after it is counted


Check the recording of the votes on the ELECTION RETURN and the Tally Board.

See to it that the same are correctly accomplished.

After finishing the first pile of 100 ballots:

1. BEI determines the total number of votes recorded for each candidate

2. The sum is noted on the Tally Board and on the Election Return. “In case of discrepancy such RECOUNT as may be necessary shall be made”.

Demand for a recount now.

After all the ballots have been read, the BEI shall sum up the totals recorded for each candidate.

The aggregate sum shall be recorded both on the Tally Board and on the Election Return.

More Tips

Election Returns and Paper Seals have serial numbers!

DifferentSeparately printed

Ballot boxes and the metal seals have serial numbers.

Manual System - Election ReturnManual System - Election Return Manual System - Election ReturnManual System - Election ReturnManual System - Election ReturnManual System - Election ReturnManual System - Election ReturnManual System - Election ReturnManual System - Election ReturnManual System - Election ReturnManual System - Election ReturnManual System - Election ReturnManual System - Election ReturnAutomated System – Proposed Election ReturnAutomated System – Proposed Election ReturnAutomated System – Proposed Election ReturnAutomated System – Proposed Election ReturnAutomated System – Proposed Election ReturnAutomated System – Proposed Election Return

BEI to issue a certificate of the number of votes received by the candidates (§ 215, B.P. Blg. 881)

After the announcement of the results of the election and before leaving the polling place, it shall be the duty of the BEI to issue a certificate of the number of the votes received by a candidate upon request of the watchers. All the members of the BEI shall sign the certificate.

Certificate of Votes (§ 16, R.A. 6646)

The certificate of votes shall contain the number of votes obtained by each candidate written in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of voters who voted in the precinct and the date and time issued, and shall be signed and thumbmarked by each member of the BEI.

Certificate of Votes as evidence (§ 17, R.A. 6646)

The certificate of votes shall be admissible in evidence to prove tampering, alteration, falsification or any anomaly committed in the election returns concerned, when duly authenticated by testimonial or documentary evidence presented to the BOC by at least 2 members of the BEI who issued the certificate.

Failure to present any certificate of votes shall be a bar to the presentation of other evidence to impugn the authenticity of the election returns.

CONTINUING REGISTRATION OF VOTERS

Case:

Romualdez vs. RTC (Sept. 14, 1993)

Residency Requirement

Philip Romualdez is the son of Kokoy Romualdez and a nephew of Imelda Marcos.

1980 – he constructed his house in Barangay Malbog, Tolosa, Leyte. Later, he became the Barangay Captain.

1986 EDSA Revolution – he “fled” the country and sought “asylum” in the U.S.

Dec. 23, 1991 – departed from the U.S. for RP and immediately returned to Barangay Malbog, Tolosa, Leyte.

Feb. 1, 1992 (or after 40 days) – he registered anew as a voter of Precinct No. 9 of Malbog, Tolosa, Leyte, for the May 11, 1992 elections.

His registration as a voter was challenged before the MTC via a Petition for Exclusion because he had “just recently” arrived in RP.

In view of the “1 year” and “6 months” residency requirements, is Romualdez qualified to register as a voter for the 1992 elections?

Yes because he did not voluntarily abandon his “residence” in RP nor established his “domicile” elsewhere.

The term “residence” as used in election law is synonymous with “domicile”.


“Domicile” denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return.

The fixed permanent residence or domicile, in the case of Romualdez, was established in the early 1980’s to be at Malbog, Tolosa, Leyte.

Residence, however, may be lost by adopting another choice of domicile.

To lose the “old” residence and acquire a new domicile by choice, there must concur:

Residence or (actual) bodily presence in the new locality;

Intention to remain there (animus manendi) for an indefinite period of time; and,

Intention to abandon the old domicile (animus non revertendi) which should be voluntary.

Case:

Marcos vs. Comelec (Sept. 18, 1995)Residency Requirement

Imelda Romualdez-Marcos was born in Manila, in 1938 - When she was 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City).

1952 - She went to Manila to work with her cousin, Daniel Z. Romualdez, in his office in the House of Representatives.

1954 - She married Congressman Ferdinand E. Marcos of Ilocos Norte and registered there as a voter.

1959 - When FM was elected Senator, they lived together in San Juan, Rizal where she registered as a voter.

1965 - When FM was elected President, they lived together in Malacanang Palace and registered as a voter in San Miguel, Manila.

1978 onwards - She served as a member of the Batasang Pambansa and Governor of Metro Manila.

February 1986 - She claimed that she and her family were abducted and kidnapped to Honolulu, Hawaii.

November 1991 - She came back to Manila.

1992 - She ran for election as President of the Philippines and filed her COC wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila.

January 28, 1995 - She registered as a voter of Tolosa, Leyte.

March 8, 1995 - She filed her COC for the position of Representative of the First District of Leyte.

March 23, 1995 - Congressman Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a candidate for the same position, sought her disqualification on the ground that she did not meet the constitutional requirement for residency.

May 14, 1995 - the canvassing was completed. The results:

Marcos - 70,471 votes Montejo - 36,833 votes

Does Imelda Romualdez Marcos satisfy the one (1) year residency requirement mandated by Article VI, § 6 of the 1987 Constitution?

Yes, Marcos held various residences for different purposes during the last four decades. None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte.

Domicile means an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return”.

Residence , in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country.

Residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established, it is residence.

It is thus, quite perfectly normal for an individual to have different residences in various places.

A man may have a residence in one place and a domicile in another.

A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence.


Absence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of residence. The mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile.

Registration of a voter in a place other than his residence of origin not sufficient to constitute abandonment of such residence.

It finds justification in the natural desire and longing of every person to return to his place of birth. This strong feeling of attachment… must be overcome by positive proof of abandonment for another.

Domicile of origin is not easily lost.

The Comelec was directed to order the BOC to proclaim Marcos as the duly elected Representative of the First District of Leyte.

Case:

Aquino vs. Comelec (Sept. 18, 1995)Residency Requirement

March 20, 1995 – Butz Aquino filed his COC for Representative for the new 2nd District of Makati City.

April 24, 1995 - Petition to disqualify Aquino filed on the ground that he lacked the residence qualification.

May 8, 1995 - Elections were held with the following results:

Aquino - 38,547 votes Agusto Syjuco - 35,910

votes

Aquino must prove that he has established not just residence but domicile of choice.

Aquino, in his COC for the May 11, 1992 elections, indicated not only that he was a resident of San Jose, Concepcion, Tarlac in 1992 but that he was a resident of the same for 52 years immediately preceding that election.

At that time, his COC stated that he was also a registered voter of the same district.

From data furnished by Aquino himself to the Comelec at various times during his political career, what stands consistently clear and unassailable is that this domicile of origin of record up to the time of filing of his most recent COC for the 1995 elections was Concepcion, Tarlac.

Aquino’s connection with the 2nd District was an alleged lease agreement of condominium unit in the area.

The fact that Aquino himself claims that he has other residences in Metro Manila coupled with the short length of time he claims to be a resident of the condominium unit in Makati (and the fact, of his stated domicile in Tarlac) indicate that his sole purpose in transferring his “physical residence" is not to acquire new residence or domicile "but only to qualify as a candidate for Representative of the Second District of Makati City."

Aquino’s assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost.

To successfully effect a change of domicile he must prove

an actual removal or an actual change of domicile,

a bona fide intention of abandoning the former place of residence and establishing a new one; and

definite acts which correspond with the purpose.


These requirements are hardly met by the evidence adduced by Aquino. In the absence of clear and positive proof, the domicile of origin is deemed to continue.

ABSENTEE VOTINGRA No. 9189: The Overseas Absentee Voting Act of 2003

Enacted into law February 10, 2003

The Congress shall provide xxx a system for absentee voting by qualified Filipinos abroad (§ 2, Art. V, 1987 Constitution).

Overseas absentee voters may vote for? President Vice-president Senators Party-list representatives

Disqualifications The following shall be disqualified from

voting : Those who have lost their Filipino

citizenship Those who expressly renounced their

Philippine citizenship and who pedged allegiance to a foreign country;

Those who convicted in a final judgment of an offense punishable by imprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code. The Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments;

d) An immigrant or a permanent resident recognized as such in the host country, unless:he/she executes, upon registration, an affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

e) A citizen of the Philippines abroad declared insane or incompetent by competent authority in the Philippines or abroad.

Requirements for Registration a) A valid Philippine passport or

certification of the DFA that the applicant submitted documents sufficient to warrant issuance of a passport, or is a holder of a valid passport but cannot produce it for a valid reason;

b) Accomplished registration form c) AFFIDAVIT in the case of immigrants

(declaring the intention to resume actual physical permanent residence within 3 years)

Registration Procedure In person Qualified Filipino citizens may apply for

registration with the Election Registration Board of the city or municipality where they were domiciled immediately prior to their departure from the Philippines, or with the representative of the Commission at the Philippine embassies, consulates and other foreign service establishments that have jurisdiction over the locality where they temporarily reside

The registration form shall be transmitted within (5) days to the Commission, which shall coordinate with the Election Officer of the city or municipality of the applicant's stated residence for verification, hearing and annotation in the permanent list of voters. (Sec. 6, RA 9189)

The election officer shall set the app;lication for hearing

All petitions for exclusion must be filed within 210 days before election day with the court; court must decide within 15 days on the basis of documents submitted; if court does not decide on time, ruling of the election registration board is deemed affirmed

If disapproved – petition for inclusion within five days with the court If approved, Certificate of Registration is

issued

Application to Vote in Absentia Every qualified citizen of the Philippines

abroad previously registered as a voter may in every national election, file with the embassy, consulate or other foreign service establishment an application to vote in absentia (11.1).

Application may be done personally or by mail. (11.2)


Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be made available at no cost to the overseas absentee voter Application to Vote in Absentia. —

The application shall be transmitted by the embassy, consulate or other foreign service establishment shall transmit to the Commission within five (5) days from receipt.

Requirements for Registration a) A valid Philippine passport or

certification of the DFA that the applicant submitted documents sufficient to warrant issuance of a passport, or is a holder of a valid passport but cannot produce it for a valid reason;

b) Accomplished registration form c) AFFIDAVIT in the case of immigrants

(declaring the intention to resume actual physical permanent residence within 3 years)

How does an absentee voter register? Every application to vote may be done

personally at, or by mail to, the embassy, consulate or foreign service establishment, which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections.

How does an absentee voter vote? Voting: Personal Appearance

The overseas absentee voter shall personally accomplish his/her ballot at the embassy or consulate or at any polling place designated and accredited by the Comelec.

The overseas absentee voter shall cast his ballot within 30 days before the day of elections. In the case of seafarers, they shall cast their ballots anytime within 60 days before the day of elections.

Voting: By Mail

For the May, 2004 elections, the Comelec shall authorize voting by mail in not more than 3 countries (Canada, Japan and United Kingdom per Comelec Resolution No. 6179 dated May 26, 2003).

Only mailed ballots received by the Philippine embassy, consulate and other foreign service establishments before the close of voting on the day of elections shall be counted.

How are the votes counted and canvassed? Counting and Canvassing:

The counting and canvassing of votes shall be conducted on site in the country where the votes were actually cast.

The Comelec shall ensure that the start of counting in all polling places abroad shall be synchronized with the start of counting in the Philippines.

The Certificates of Canvass and the accompanying SOVs as transmitted via facsimile, electronic mail and any other means of transmission equally safe, secure and reliable shall be the primary basis for the national canvass.

Case:

Makalintal vs. Comelec (July 2003)Absentee Voting

§ 5(d) of Republic Act No. 9189 provides that the following shall be disqualified from voting under this Act:

An immigrant or a permanent resident who is recognized as such in the host country, unless he executes, upon registration, an affidavit xxx declaring that he shall resume actual physical permanent residence in RP not later than 3 years from approval of his registration. Such affidavit shall also state that he has not applied for citizenship in another country.

Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

A “green card” holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines (Caasi vs. Court of Appeals, November 8, 1990).

Citing Caasi, Makalintal argued that § 5(d) is unconstitutional because it violates § 1, Article V of the 1987 Constitution which requires that the voter must be a resident in RP for at least 1 year and in the place where he proposes to vote for at least 6 months immediately preceding an election.

Does § 5(d) allowing the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residency requirement in § 1 of Article V of the Constitution?

Supreme Court: NO.


Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee. However, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile.

As finally approved into law, § 5(d) specifically disqualifies an immigrant or permanent resident who is “recognized as such in the host country” because immigration or permanent residence in another country implies renunciation of one’s residence in his country of origin.

However, the same Section allows an immigrant and permanent resident abroad to register as voter for as long as he executes an affidavit to show that he has not abandoned his domicile.

The affidavit required in § 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under § 5(d) violates the Constitution that proscribes “provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise.”

To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain.

CONTINUING REGISTRATION OF VOTERSWhat is “registration”?

Registration is

the act of accomplishing and filing a sworn application for registration

by a qualified voter before the election officer of the city or

municipality wherein he resides and including the same in the book of

registered voters upon approval by the Election Registration Board (ERB).

Why register? Registration is an indispensable precondition to

the right of suffrage.

To exercise the right to vote, a citizen is obliged by law to register under the provisions of Republic Act No. 8189, otherwise known as the Voter’s Registration Act of 1996.

How does one register prior to the Voter’s Registration Act of 1996? On the 7th and 6th Saturdays before a regular

election or on the 2nd Saturday following the day of the proclamation calling for a new special election, plebiscite or referendum, any person desiring to be registered as a voter shall accomplish in triplicate before the BEI a voter's affidavit (§ 126, B.P. Blg. 881).

Upon receipt of the voter's affidavit, the BEI shall examine the data therein. If it finds that the applicant possesses all the qualifications and none of the disqualifications of a voter, he shall be registered. Otherwise, he shall not be registered (§ 129, B.P. Blg. 881).

What is the policy of the State in enacting the Voter’s Registration Act of 1996? To systematize the method of registration in

order to establish a clean, complete, permanent and updated list of voters.

How does one register under the Voter’s Registration Act of 1996? Under a system of continuing registration, the

personal filing of application shall be conducted daily in the office of the Election Officer during regular office hours.

No registration shall, however, be conducted during the period starting 120 days before a regular election and 90 days before a special election.


DATA CAPTURING MACHINESContinuing Registration of Voters Data Capture Workstation

Continuing Registration of Voters Digital PhotographContinuing Registration of Voters Digital Signature Card

Digital FingerprintsContinuing Registration of Voters Digital SignatureContinuing Registration of Voters Left ThumbContinuing Registration of Voters Left Index FingerContinuing Registration of Voters Right ThumbContinuing Registration of Voters Right Index Finger

What are the penalties for violating the Voter’s Registration Act of 1996? Violation of any of the provisions of R.A. No.

8189 is considered an election offense

Penalties

Imprisonment of not less than 1 year but not more than 6 years.

Political party - fine of not less than P 100,000 but not more than P 500,000.

Suffer disqualification to hold public office and deprivation of the right of suffrage.

Shall not be subject to probation.

If he is a foreigner, he shall be deported after the prison term has been served.

CHALLENGES TO THE RIGHT TO REGISTERWhat are the modes of challenging the right to register?1. Challenge the Application for Registration (§

18, RA No. 8189)

2. Petition for Exclusion of Voters from the Permanent List of Voters (§ 35, RA No. 8189)

3. Annulment of Book of Voters (§ 39, RA No. 8189)

Safety mechanisms that gives a measure of protection against flying voters, non-qualified registrants, and the like.

What is the remedy of a person whose application for registration has been disapproved by the ERB or whose name has been stricken out from the list of voters?

File a Petition for Inclusion (§ 34, RA No. 8189)Challenges to Applications for Registration (§ 18, RA No. 8189)

Who may file? - Any voter, candidate or representative of a registered political party.

The Challenge and oppositions thereto will be heard by the ERB.

Physical presence of the applicant concerned is mandatory where objections against his application have been filed for him to rebut or refute evidence presented in opposition thereto (§ 17, RA No. 8189).

Petition for Exclusion (§ 35, RA No. 8189) Who may file? - Any registered voter,

representative of a political party or the Election Officer

When? – At any time except 100 days prior to a regular election.

The 100 days prohibitive period serves the purpose of securing the voter’s substantive right to be included in the list of voters.

Annulment of Book of Voters (§ 39, RA No. 8189)

Who may file? - Any voter or Election Officer or duly registered political party

Where to file? - The Comelec

Grounds? - The book of voters was: not prepared in accordance with RA

8189; or, prepared through fraud, bribery,

forgery, impersonation, intimidation, force or any similar irregularity; or,

contains data that are statistically improbable.

Petition for Inclusion of Voters in the List (§ 34, RA No. 8189) Who may file? - Any person whose application

for registration has been disapproved by the ERB or whose name has been stricken out from the list.


When? - At any time except 105 days prior to a regular election.

The petition shall be decided within 15 days after filing.

What court has original and exclusive jurisdiction over all cases of inclusion and exclusion of voters? The MTC

Decisions of the MTCs may be appealed to the RTC within 5 days from receipt of notice thereof.

The RTC shall decide the appeal within 10 days from the time it is received and the decision shall immediately become final and executory. No MR shall be entertained.

Case:

Domino vs. Comelec (July 19, 1999)Powers of the Metropolitan/Municipal Trial Courts in Inclusion and Exclusion Proceedings

1995 - Juan Domino filed his COC for Congressman in the 3rd District of QC for the 1995 elections.

June 22, 1997 – Domino registered as a voter of Precinct No. 4400-A, Old Balara, Quezon City.

October 22, 1997 - Domino sought the cancellation before the MTC of QC of his registration as voter in QC and applied for the transfer of his registration from QC to Sarangani.

January 18, 1998 - the MTC declared him a resident of the Province of Sarangani, approved and ordered the transfer of his voter’s registration from Precinct No. 4400-A of Old Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani.

March 25, 1998 - Juan Domino filed his COC as Congressman for the Lone Legislative District of Sarangani for the May 1998 elections.

A Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed on the ground that Domino is not a resident of Sarangani and/or he lacks the 1 year residency requirement.

Presented as evidence was Domino’s Voter’s Registration Record dated June 22, 1997 indicating Domino’s registration at Precinct No. 4400-A, Old Balara, Quezon City.

During the elections, Domino garnered the highest number of votes.

Whether or not the judgment of the MTC declaring Domino as resident of Sarangani is final, conclusive and binding upon the whole world, including the Comelec.

No, it does not preclude the Comelec, in the determination of Domino’s qualification as a candidate, to pass upon the issue of compliance with the residency requirement.

Except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata.

The factual findings of the MTC and its resultant conclusions in the exclusion proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction are not conclusive upon the Comelec.

Moreover, the MTC exceeded its jurisdiction when:

it declared Domino a resident of Sarangani; and,

approved and ordered the transfer of his voter’s registration from Precinct No. 4400-A of Barangay Old Balara, QC to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani.

It is not within the competence of the MTC, in an exclusion proceedings, to declare the challenged voter a resident of another municipality.

The jurisdiction of the lower court over exclusion cases is limited only to “determining the right of the voter to remain in the list of voters” or to “declare that the challenged voter is not qualified to vote in the precinct in which he is registered,” specifying the ground of the voter’s disqualification.

The MTC has no power to order the change or transfer of registration from one place of residence to another. That is the function of the ERB (§ 12, R.A. No. 8189).

What are the penalties for violating the Voter’s Registration Act of 1996? Violation of any of the provisions of R.A. No.

8189 is considered an election offense

Penalties

Imprisonment of not less than 1 year but not more than 6 years.

Political party - fine of not less than P 100,000 but not more than P 500,000.

Suffer disqualification to hold public office and deprivation of the right of suffrage.


Shall not be subject to probation.

If he is a foreigner, he shall be deported after the prison term has been served.

Certificate of Candidacy

A formal manifestation to the whole world of the candidate's political creed or lack of political creed.

Sinaca vs. Mula

Statement of a person seeking to run …certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated.

Sinaca vs. Mula

No person shall be eligible for any elective public office unless he files a sworn

certificate of candidacy within the period fixed herein.Sec. 73, BP 881

Effect of failure to file:

• Votes in favor of the candidate void.

• Candidate has no right to contest the election.

Deadline for Filing:

– Not later than the day before the date of the beginning of the campaign period. (Sec. 7, RA 7166)

– If filed beyond the deadline – not valid (Gador v. COMELEC, 96 SCRA 431)

– Certificate which did not include the position for which the candidate is running may be corrected. (Conquilla v. COMELEC, 332 SCRA 861)

Effect of multiple filings for more than one office:

– Not eligible for any one of them.– Before deadline, the candidate may

withdraw all except one (Sec. 73, OEC)

Defects, General Rule:Prior to the election – Strict construction,

requirements are mandatory.After the election – Liberal construction,

merely directory

OATH

– Certificate must be sworn. (Sec. 73, OEC)

– The election of a candidate cannot be annulled because of formal defects in his certificate, such as lack of oath. (De Guzman vs. Board of Canvassers, 48 Phil 211)

Name

– Civil Registrar/Baptismal Certificate

– May include stage/screen name or a nickname by which he is generally known (sec. 74, OEC)

– 2 or more with same name – state paternal and maternal surnames, except incumbent (equity of incumbent)

Disqualification

– Insane/incompetent

– Final judgment for –

– Insurrection or rebellion

– Offense for which he was sentenced to a

penalty of more than 18 months

– Crime involving moral turpitude

– Permanent resident/immigrant to a foreign country unless he waives his status.

Removal

– Insane/incompetent – declaration of removal of status of being insane/incompetent

– Conviction

– Plenary pardon

– Amnesty

– Lapse of 5 years after service of sentence

Disqualifications under the Local Government Code– Those sentenced by final judgment of

an offense involving moral turpitude or an offense punishable by imprisonment of at least one year, within 2 years after service of sentence.

– Those removed from office as a result of an administrative case

– Convicted by final judgment of violating his oath of allegiance to the Republic

– Those with dual citizenship– Fugitives from justice– Permanent resident/immigrant to a

foreign country (Caasi vs. CA, 191 SCRA 229)

– Insane or feebleminded


Disqualifications under the Revised Adm Code-Municipal Office

– Eccleciastics (Pamil vs. Teleron)

– Persons receiving compensation from municipal or provincial funds

– Contractors for public works of the municipality (Sec. 2175 RAC)

Effect of FilingSECTION 66. Candidates holding appointive office

or positions. — Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

SECTION 67. Candidates holding elective office. — Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

[F]orfeiture is automatic and permanently effective upon the filing of the certificate of candidacy for another office. Only the moment and the act of filing are considered. Once the certificate is filed, the seat is forever forfeited.

Monroy vs CA, 20 SCRA 620Dimaporo vs Mitra, 202 SCRA 779

An appointive public official is considered resigned upon filing of his certificate. (Sanciangco vs Rono)

Includes government appointive officials in GOCCS under the Corporation Code (PNOC Energy Dev’t. Corporation vs. NLRC)

Substitution

• Substitution is governed by Sec. 77 of the Omnibus Election Code.

• Grounds for Substitution:

– Official candidate:

• Dies

• Withdraws

• Is disqualified for cause

Who may substitute: only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the

candidate who died, withdrew or was disqualified.

The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and 'mid-day of election day, said certificate maybe filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.


Certificate of Candidacy

• Two opposing factions of the LAKAS-NUCD-UMPD filled in separate candidates for the position of mayor of the Municipality of Malimano, Surigao del Norte. One faction headed by Robert Z. Barbers nominated Grachil G. Canoy, while the other group lead by Francisco T. MATUGAS endorsed the candidacy of Teodoro F. Sinaca, Jr. • Miguel H. Mula, a candidate for vice-mayor and belonging to the "BARBERS Wing," filed before the COMELEC a petition for disqualification against TEODORO which was docketed as SPA 98-021. On 8 May 1998, the Second Division of the COMELEC issued a resolution disqualifying TEODORO as candidate for mayor of Malimono, Surigao del Norte. It ordered the cancellation of his certificate of candidacy because of prior conviction of bigamy, a crime involving moral turpitude.

Sinaca vs. Mula

• On 10 May 1998, TEODORO filed a MOR of the aforesaid resolution. On the same date, petitioner Emmanuel D. Sinaca, an independent candidate, withdrew his certificate of candidacy for Sangguniang Bayan Member, joined and became a member of the LAKAS party and was nominated by the LAKAS "MATUGAS Wing" as the substitute mayoralty candidate for the Municipality of Malimono, Surigao del Norte.

• On the basis of said nomination, EMMANUEL filed his certificate of candidacy attaching his certificate of nomination as LAKAS mayoralty candidate signed by Governor Francisco T. MATUGAS, the party provincial chairman.

• On 11 May 1998, MULA filed another petition for disqualification, this time against EMMANUEL. MULA contended that the nomination of EMMANUEL as substitute candidate was illegal on the following grounds:

• a) Before he filed his Certificate of Candidacy as LAKAS candidate, SINACA was an independent candidate. Being so, he cannot rightfully substitute the disqualified one;

• b) Sinaca’s nomination bore only the approval of Matugas and without consent of Mr. Barbers who has also a say on nomination of candidates within his jurisdiction.

• c) Substitution generally takes place when by reason of a candidate's disqualification the party to which he belongs loses such representation. In this case, the disqualification did not prejudice LAKAS because Mr. Garchil G. Canoy is still there representing the party after the disqualification. states:

• The COMELEC’s 2nd Division dismissed the petition for disqualification and upheld the candidacy for mayor of EMMANUEL on the ground that Matugas was clothed with authority to nominate the Sinaca as substitute candidate for the position of mayor of Malimono, Surigao del Norte, vice the disqualified candidate.

• On 6 October 1998, the COMELEC en banc issued a Resolution which set aside the resolution of the Second Division and disqualified EMMANUEL, for the following reasons:

• Sinaca was an independent candidate for councilor at the time he filed his certificate of candidacy for mayor as a substitute of a disqualified candidate. Thus, he did not belong to the same political party as the substituted candidate.

• The substitution of disqualified mayoralty candidate Teodoro F. Sinaca, Jr. by respondent Emmanuel D. Sinaca was not valid because the latter was an independent candidate for councilor prior to his nomination as substitute for a Lakas party member.

• On 6 October 1998, the COMELEC en banc set aside the resolution of the 2nd Div. and disqualified EMMANUEL, for the following reasons:

• Sinaca was an independent candidate at the time he filed his certificate of candidacy for mayor as a substitute of a disqualified candidate. Thus, he did not belong to the same political party as the substituted candidate.

• The substitution of disqualified mayoralty candidate Teodoro F. Sinaca, Jr. by respondent Emmanuel D. Sinaca was not valid because the latter was an independent candidate for councilor prior to his nomination as substitute for a Lakas party member.

• The rule on substitution of an official candidate of a registered or accredited political party who dies, withdraws or is disqualified for any cause after the last day for the filing of certificates of candidacy is governed by Sec. 77 of the Omnibus Election Code which provides:


• If after the last day for … filing…, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and 'mid-day of election day, said certificate maybe filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. Sinaca vs. Mula

• The fact that EMMANUEL was an independent candidate prior to his nomination is immaterial. What is more significant is that he had previously withdrawn his certificate of candidacy before he filed his certificate of candidacy as a substitute for TEODORO at which time he was, for all intents and purposes, already deemed a member of the LAKAS "MATUGAS wing.

• Even the fact that EMMANUEL only became a member of the LAKAS party after the disqualification of TEODORO, will not affect the validity of the substitution. There is nothing in the Constitution or the statute which requires as a condition precedent that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such. Section 77 of the Omnibus Election Code only mandates that a substitute candidate should be a person belonging to and certified by the same political party as the candidate to be replaced. Votes cast for the substituted candidate

• In case of valid substitutions after the ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot.

• For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter.

• If the substitute candidate has the same family name, the above rule shall not apply.

» Sec 12 RA No. 9006 Opposition against filing of Certificates of Candidacy

• Petition to deny due course

• Petition to cancel certificate of candidacy

• ONLY GROUND: ANY MATERIAL REPRESENTATION CONTAINED IN THE CERTIFICATE IS FALSE.

• Petition must be verified

Petition to deny due coursePetition to cancel certificate of candidacy

• NATURE OF PETITION: Similar to QUO WARRANTO• WHY? Basis is qualification

• Two instances questioning qualifications: Sec. 78, Sec. 253

SECTION 253.Petition for quo warranto. — Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. (Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec. 189, par. 2, 1978 EC)

• Period of filing: 25 days from the time of filing of the Certiciate of Candidacy and shall be decided, after due process and hearing, not later than 15 days before the election. Sec. 78, BP 881.

• 15 d. period merely directory (Aznar vs. COMELEC, 185 SCRA 703; Loong vs. COMELEC, 216 SCRA 760)

ONLY GROUND: ANY MATERIAL REPRESENTATION CONTAINED IN THE CERTIFICATE IS FALSE.

• Meaning:

• False statement as to residence (Abella vs. Lazarrabal);

• False statement as to citizenship (Labo vs Comelec 211 SCRA 297)

Test: Is there intent to deceive? Salcedo vs. COMELEC, 312 SCRA 447 – using husband’s surname even when marriage is void.

• NATURE OF PETITION: Similar to QUO WARRANTO• WHY? Basis is qualification

• Two instances questioning qualifications: Sec. 78, Sec. 253

SECTION 253.Petition for quo warranto. — Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election.


(Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec. 189, par. 2, 1978 EC)

• NATURE OF PETITION: Similar to QUO WARRANTO

• WHY? Basis is qualification

• Failure to file within the 25-day pd. Under Sec. 78 – not completely helpless – file a petition for quo warranto within 10 days from proclamation.

NUISANCE CANDIDATESGROUNDS:• Certificate has been filed to put the

election process in mockery or disrepute;

• Candidacy filed to cause confusion by the similarity of names of a registered candidate;

• Other circumstances indicating that the candidate has no bona fide intention to run

Documents

The Pub Off Reviewer