thelawstudentdiaryph.files.wordpress.com...! Reviewer!onLaw!onPublic!Officers! AlbertoC.!Agra,!AteneoLaw!School 1 REVIEWER ON THE LAW ON PUBLIC OFFICERS Alberto C. Agra and Sarah Lou

Reviewer on Law on Public Officers Alberto C. Agra, Ateneo Law School

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REVIEWER ON THE LAW ON PUBLIC OFFICERS

Alberto C. Agra and Sarah Lou Ysmael Arriola Ateneo Law School February 15, 2013

Part 1. Definitions, Distinctions, and Classifications

A. Meaning of office 1. “Office” may be defined as a position or function by virtue of which a person is

employed in another’s affairs, either by being appointed, elected, or appointed during the pleasure of the appointing power or for a fixed term (63A Am. Jur. 2d 667).

B. Meaning of public office

a. It refers to the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public (MECHEM, A Treatise on the Law of Public Officers and Officers, pp. 1-2 (1890); see Aparri v. Court of Appeals, 127 SCRA 231 (1984).

b. It is a charge, station or employment conferred by appointment or election by

government (Metchalf & Eddy v. Mitchell, 269 U.S. 514, 70 L. Ed. 384, 46 S. Ct. 172).

C. Purpose and Nature of Public Offices 1. It is created to effect the end for which government has been instituted, which is the

common good, and not for profit, honor, or private interest of any person, family, or class of persons.

2. A public office is a public trust created in the interest and for the benefit of the people.

D. Public office is a public trust. 1. Holders are regarded as public servants. The powers delegated to them are held in trust

for the people and are to be exercised in behalf of the government or all citizens. 2. Holders are subject to highest standards of accountability and service.

E. Public office is not a property.

1. Holder are subject to removal or suspension according to law. a. Proprietary claim to public office is precluded. b. However, the officer is not to be denied due process of law by the abolition of the

office before expiration of term or by his removal/suspension according to law or by the passage of a statute limiting or reducing his compensation.

c. An officer has no property rights in the books and papers pertaining to his office.

2. Holders are without any vested right in any public office. a. Except constitutional offices which provide for special immunity on salary and

tenure, no one can be said to have any vested right to an office or its salary, let alone an absolute right to it. (Sangguniang Bayan of San Andres, Catanduanes v. Court of Appeals, 284 SCRA 270 (1998))

3. Holder’s right in nature of privilege entitled to protection.


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a. An office may be considered property within the protection of due process in controversies relating to the question as to which of two persons is entitled thereto, as well as concerns about one’s constitutional right to security of tenure.

4. Holder’s right to personal claim. a. Public office is personal to the incumbent or appointee. As such, it is not property

which passes to his heirs upon death.

Segovia v. Noel (47 Phil., 543 [1925]) S, a justice of the peace, was ordered by the Secretary of Justice to vacate the post when he became 65 years old as per Act No. 3107. The said law amended Section 203 of the Administrative Code by stating that “justices of the peace…are to serve until they reach the age of 65”. N, the auxiliary justice, acted as justice of the peace. S filed for quo warranto. S should not step down as per Act No. 3107. The Act did not amend the Administrative Code which provides that “a justice of the peace having the requisite legal qualifications shall hold office during good behavior unless his office be lawfully abolished or merged into the jurisdiction of some other justices”. A statute operates only prospectively unless otherwise provided by the express terms of the statute or by necessary implication. The right to an office is not vested but such right shall be taken away only when the terms of the law is clear in which the purpose is stated.

F. Public office is not a contract. a. It creates no contractual relation between the holder and the public. b. It exists by virtue of some law expressly or impliedly creating it. c. It generally entitled the holder to compensation for performance of his public duties.

However, salary is a mere incident and forms no part of the office. It is not a necessary criterion for determining the nature of the position (Laurel v. Desierto, 381 SCRA 48 (2002); Serana v. Sandiganbayan, 212 SCRA 224 (2008)).

G. Public Office and Public Contract distinguished

As to Public Office Public Contract

Creation A public office is an incident of sovereignty.

A contract originates from the will of the parties and subject to the limitations imposed by law.

Object A public office’s object is to carry out governmental and sovereign functions even those not bound by contract.

A contract imposes obligations only upon those who entered it.

Subject Matter and Scope In a public office, there is tenure, duration and continuity.

In a contract, there are terms defining and limiting the rights and obligations of the parties.

H. Public Office and Public Employment distinguished


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As to Public Office Public Employment Key Considerations There is a delegation of some

of the sovereign functions of government to a public office. Every public office may be an employment.

No such delegation of sovereign functions to public employment. Every public employment is not an office.

Manner of Creation A public office is created by law with duties involving the exercise of some portion of the sovereign power.

Public employment lacks such elements of a public office.

I. Essential elements of a public office:

a. It is created by the Constitution or by law or by some body or agency to which the power to create the office has been delegated;

b. It must be invested with an authority to exercise some portion of the sovereign power of the State to be exercised for public interest;

c. Its powers and functions are defined by the Constitution, or by law, or through legislative authority;

d. The duties pertaining to a public office are performed independently, without control of a superior power other than law, unless they are those of an inferior or subordinate officer, created or authorized by the legislature and placed by it under the general control of a superior officer or body; and

e. It is continuing and permanent in nature and not occasional or intermittent (State v. Taylor, 144 N.W. 2d. 289).

J. Creation of public office

a. Generally, a public office is created by some constitutional or statutory provision or by

authority conferred by it.

b. By the exercise of Congress of its legislative function. Except for such offices created by the Constitution, the legislative department has the primary discretion to determine whether additional public offices shall be created, or whether these duties shall be attached to and become ex officio duties of existing offices.

c. By the President in so far as bureaus, agencies, or offices in the executive department are concerned, in the exercise of the continuing authority to reorganize the administrative structure of the Office of the President (Buklod ng Kawaning EIIB v. Zamora, 360 SCRA 718 (2001)).

K. Modification or abolition of public offices

1. The power to create an office generally includes the power to modify or abolish it; as

well as the power to fix the number of positions and the salaries and emoluments of the holders thereof and provide funds for the offices created.


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2. Office created by Congress a. Unless prohibited by the Constitution, Congress may control, modify, consolidate,

or abolish public offices created by it whenever such course may seem necessary, expedient, or conducive to the public good.

3. Offices created by the Constitution

a. Constitutional offices may be modified or abolished by the people through a constitutional provision, and such offices are beyond the power of the legislature to alter or discontinue. However, the mere mention of an office in the Constitution does not necessarily endow the office with constitutional status which prevents its abolition by Congress (63A Am. Jur. 2d 687-688).

L. Exercise of sovereign powers and functions

1. One of the most important criteria of public office a. “Public office” implies an authority to exercise some portion of the sovereign power

of the State in making, executing, or applying the law. 2. Authority conferred by law

a. The authority to exercise some portion of the sovereign power is bestowed by law. Unless the powers conferred are of this nature, the position is not a public office.

3. Extent of authority not material a. It is the duties of an incumbent’s office which makes him a public officer and not the

extent of his authority. 4. Presumption of regularity of official acts

a. Public officers enjoy the presumption of regularity in the exercise of their functions, and the presumption may be overthrown only be clear and convincing proof to the contrary. However, the presumption does not apply when an official’s acts are not within the duties specified by law, particularly when his acts properly pertain or belong to another entity, agency, or public official (Reyes, Jr. v. Belisario, 596 SCRA 31 (2009)).

Laurel vs. Desierto (381 SCRA 48 [2002]) The most important characteristic in determining whether a position is a public office or not, is the delegation to an individual of some of the sovereign functions of the government, i.e. executive, legislative or judicial functions to be exercised for the benefit of the public. Petitioner, Laurel, was appointed as the Chairperson of the National Centennial Commission (NCC) created under Executive Order No. 128. The NCC is tasked to undertake the preparations for the celebration of the Philippine Independence. Such occasion is said to be a vehicle in showcasing Filipino heritage and identity, which is mandated under Article XIV of the 1987 Constitution. The NCC, therefore, performs an executive function in implementing the supreme law of the land. The inescapable conclusion is that "NCC is a public office and petitioner, as its Chair, is a public officer." That the petitioner did not receive a salary is of no moment because compensation is a mere incident of public office. As NCC chair, petitioner is occupying an honorary office as distinguished from a lucrative office albeit it is still a public office. "Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc body" makes said commission less of a public office."

Serana vs. Sandiganbayan, et. al. (G.R. No. 162059, January 22, 2008)


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"As an investment in an individual of some portion of the sovereign functions of the government to be exercised by him for the benefit of the public makes one a public officer." Petitioner Serana, as the student regent of the University of the Philippines-Diliman is deemed a public officer because a perusal of the existing charter of UP would show that the Board of Regents, where petitioner is a member, exclusively exercises the powers of administration of the University. The fact that Serana does not receive any salary as a student regent is of no moment because compensation is not a essential element of public office.

Go vs. Sandiganbayan et. al. (G.R. No. 172602, 13 April 2007) The fact that petitioner, Go, is not a public officer would not automatically exclude him from the application of Section 3(g) of RA 3019 or The Anti Graft Law. Section 3(g) penalizes public officers who enter into a transaction in behalf of the government, which is manifestly and grossly disadvantageous to the latter, regardless of whether such public officers profited or will profit thereby. To say otherwise could do violence with the avowed policy of the said law to "repress certain acts of public officers and private persons." "Private persons, when acting in conspiracy with public officers, may be indicted and if found guilty be held liable for the pertinent offenses under Section 3 of RA 3019."

Javier vs. Sandiganbayan, et. al. (G.R. 147026-27, 11 September 2009) Petitioner was invested by law with some portion of the sovereign functions of the government and is therefore a public officer. She is the representative of the private sector in the National Book Development Board (NBDB), which is a statutory agency created by RA 8047. The primary purpose of the said law is to ensure the development of the book publishing industry and the NBDB is tasked to supervise the implementation of the same. Further, pursuant to the Anti-Graft Law, petitioner is a public officer since she was appointed by the President to the Governing Board of the NBDB. The fact that she was not receiving a salary is inconsequential because under the Anti-Graft Law, "the nature of one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer." Also, petitioner is a public officer under the Revised Penal Code considering that she takes part in the performance of public functions in the government. During her tenure, she took pat in the formulation of the implementing rules and regulations of RA 8047.

M. Tenure and duration 1. Existence of definite tenure is immaterial.

a. The duration of tenure need not be for a fixed period, but may be at the pleasure of the appointing power (63A Am. Jur. 2d 670).

2. Continuance of office holder is immaterial. a. The duties attached to the position continue although the officer holder may change.


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3. Permanence of office is immaterial. a. If the other elements are present, it makes no difference whether there can be but

one act or a series of acts to be done – whether the office expires as soon as the one act is done, or is to be held for years or during good behavior.

N. Meaning of officer/public officer/employee/public official

1. “Officer” is one who holds a public office. Under the Administrative Code of 1987, it

refers to a person whose duties involve the exercise of discretion in the performance of the functions of the government.

2. “Public officer” is such an officer as is required by law to be elected or appointed, who has a designation or title given to him by law, and who exercises functions concerning the public, assigned to him by law (63A Am. Jur. 2d 670). Under the Revised Penal Code, any person who takes part in the performance of public functions or performs public duties is deemed a public officer. The RPC definition, therefore, eliminates the standard distinction between “officer” and “employee”.

3. “Employee” includes any person in the service of the government or any of its agencies, divisions, subdivisions, or instrumentalities.

O. Officer and employee distinguished

1. In the law of public officer a. The definition of public officer is imbued with greater importance, dignity, and

independence of his position. In addition, a public officer must be invested by law with a portion of the sovereignty of the State and authorized to exercise functions of an executive, legislative, or judicial character.

2. Under the Revised Penal Code

a. Any person who takes part in the performance of public functions or performs public duties is deemed a public officer.

Azarcon vs. Sandiganbayan, et. al., (268 SCRA 747 [1997]) By signing the receipt for the truck constructively distraint by the Bureau of Internal Revenue, petitioner, Azarcon, became the custodian of such properties with an obligation to preserve the same and not allow any person to remove it without the authority of the BIR. This designation, however, did not make him a "public officer" within the purview of the Revised Penal Code. Petitioner's appointment is neither by popular election nor by direct provision of law nor by competent authority. There is no provision in the National Internal Revenue Code that constitutes the private individual appointed by the BIR as depositary, a public officer. Further, nowhere is it provided in Article 222 of the RPC that a private individual falling therein as administrator or depositary of funds or property attached or seized by public authority, is to be deemed a public officer. Since petitioner is not a public officer but a private individual, the Sandiganbayan has no jurisdiction over him. Azarcon cannot be charged of malversation of public funds, absent an allegation that he is a co-pricipal, accomplice or accessory acting in conspiracy with a public officer.


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P. Meaning of public official 1. “Public Official” is defined as an officer of the Government itself, as distinguished from

the officers and employees of instrumentalities of the government. However, the term public official is ordinarily synonymously used with public officer.

Q. Classification of public offices/public officers

1. As to nature of functions

a. Civil Office(r) - covers any kind of public office, whether executive, legislative, or judicial, but excluding military offices.

b. Military office(r) - includes all offices in the armed forces which solely involve military functions.

2. As to creation

a. Constitutional office(r) – one created by the Constitution b. Statutory office(r) – one created by statute and over which Congress has full control.

3. As to the department of government to which it belongs

a. Legislative office(r) – one charged with functions involving mainly the enactment of laws.

b. Executive office(r) – one charged with functions involving mainly the execution or administration of laws.

c. Judicial office(r) – one charged with functions connected with the adjudication of actual justiciable controversies and the interpretation of laws.

4. As to the branch of government served

a. National office(r) – includes any office in the national or central government as distinguished from local governments.

b. Local office(r) – includes any office in the political subdivisions of the Philippines such as autonomous regions, provinces, cities, municipalities, barangays, and other forms of local government.

5. As to whether exercise of discretion is required

a. Quasi-judicial office(r) – includes any office (other than courts of justice) whose officers are charged with functions that are not strictly judicial but require the exercise of discretion or judgment.

b. Ministerial office(r) – includes any office whose officers are charged with the duty to execute mandates lawfully issued by their superior.

6. As to compensation

a. Lucrative office(r) – any office to which salary, compensation or fees are attached. b. Honorary office(r) – no compensation is attached.

Part 2. Eligibility and Qualifications

A. In General

1. Meaning of eligibility/eligible/ineligibility/ineligible a. “Eligibility” – state or quality of being legally fitted or qualified to be chosen.

Eligibility to a public office is of a continuing nature and must exist both at the commencement and during the occupancy of an office (Aguila v. Genato, 103 SCRA (1981)).


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b. “Eligible” – means being legally fitted or qualified to hold an office. Under the Administrative Code of 1987, it refers to one who obtains a passing grade in a civil service exam (Executive Order No. 292, Book V, Title I, Subtitle A, Chapter 1, Section 5(8)).

c. “Ineligibility” – refers to lack of qualifications required by law for holding public office.

d. “Ineligible” – may mean legally or otherwise disqualified to hold an office; disqualified to be elected to an office; disqualified to hold an office if elected or appointed to it.

2. Meaning of Qualification

a. It may refer to the endowment or accomplishment that fits one for office; or b. It may refer to the act which a person is legally required to do before entering upon

the performance of his duties.

3. Nature of right to hold public office a. Not a natural right

1. It exists only because of some law expressly or impliedly creating or conferring it.

b. Not a constitutional right 1. It is not a constitutional right but a political privilege that depends upon the favor

of the people and subject to reasonable conditions for the public good, lawful, and non-discriminatory terms laid down by law.

4. Power of Congress to prescribe qualifications

a. In general 1. Congress has the power to prescribe such qualifications which must have a

rational basis with the duties of the position in question, and not inconsistent with constitutional provisions.

b. Where office is created by Congress 1. Congress is empowered to specify qualifications and disqualifications as long as

these are not contrary to the Constitution. c. Where office is created by the Constitution

1. The constitutional criteria are exclusive and Congress has no power to require different qualifications for constitutional offices other than those qualifications laid in the Constitution, unless the Constitution expressly or impliedly gives the power to set qualifications.

d. Where qualifications prescribed by the Constitution 1. Congress may prescribe certain qualifications unless it appears that this is

prohibited.

Ignacio v. Banate, Jr. (153 SCRA 546 [1987]) Banate was designated as member of the Sangguniang Panglungsod to replace Ignacio who claims that Banate is not qualified because the latter is not an officer, much less, a member of the Katipunang Panglunsod as required under the Local Government Code. The appointment is not valid. Banata did not meet the qualifications required by law. An unqualified person cannot be appointed to position, even in an acting capacity.


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5. Power of Congress to prescribe disqualifications

a. In the absence of constitutional inhibition, Congress may prescribe disqualifications. In addition, Congress cannot remove a disqualification that the Constitution has attached to the position.

Vargas v. Rilloraza (80 Phil. 297 [1948]) Vargas questions the People Court’s Act which (1) disqualified justices who held office under the Philippine Executive Commission during the Japanese regime from adjudicating in cases where the “accused held offices under the two”; and (2) provided that the President may designate judges to temporarily serve in the Supreme Court when the number of justices who left does not constitute a quorum. The Act is repugnant to the Constitution. It added grounds for disqualification of a Supreme Court justice. It disqualified a majority of the members of the Supreme Court. In addition, the temporary composition of the Supreme Court is not allowed as the Supreme Court is a permanent institution as provided in the Constitution.

6. Construction of restrictions on eligibility a. Presumption in favor of eligibility

1. A strong public policy exists in favor of eligibility. Hence, the right to public office should be strictly construed against ineligibility. However, statutes declaring qualifications are to receive liberal construction does not mean that courts could give an unreasonable construction to uphold the right to hold office.

b. Basis of presumption 1. A strong public policy exists in favor of eligibility to public office. A

constitutional provision, where the language and context allow, should be construed as to preserve this eligibility as ambiguities are to be resolved in favor of eligibility to office.

c. Rule of liberal construction 1. The right to public office should be strictly construed against ineligibility.

However, while statutes declaring qualifications are to receive liberal construction, it does not mean that courts should give unreasonable construction in order to uphold the right of one to hold office.

7. Time of possession of qualifications

a. Where time specified by Constitution or law 1. The candidate must possess the necessary qualifications at the time specified

by Constitution or law. b. Where Constitution or law is silent

1. The courts may take recourse to some other means to determine specifications such as through textual analysis of the terms used in the qualifications.

c. When qualification must always exist. 1. Eligibility to public office is of a continuing nature and must exist at the

commencement of the term and during the occupancy of the office (Aguila v. Genato, 103 SCRA 380 (1981)).


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2. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligiibilty especially if they mistakenly believed that the candidate was qualified. (Frivaldo v. Commission on Elections, 174 SCRA 245 (1989))

3. It has been held, however, that Section 39 of the Local Government Code on “Qualifications ot Elective Officials” does not specifiy any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least 1 year’s residence immediately preceding the day of election) and age (at least 23 years of age on election day).

8. Removal of disqualifications during term

a. Courts have not agreed on the effect of removal of disqualification after the commencement and during the term of office. Some courts hold that such removal validates the title of the incumbent. Other courts take the contrary view depending on the nature of the disqualification, mode of removing it, time of removal, etc.

Castañeda v. Yap (91 Phil. 819 [1923]) Elected Mayor Yap claimed that Castañeda was estopped from questioning his eligibility (Mayor Yao did not meet the minimum age requirement when he was proclaimed) because Castañeda failed to do it before or during the election. Castañeda is not estopped. A candidate’s eligibility is always subject to question. Under the applicable law at the time of the case was decided, the right of an elective municipal office can be contested only after proclamation. Good faith does not cure a candidate’s ineligibility, although it might be a good defense in a criminal prosecution.

B. Particular Qualifications and Disqualifications

1. Qualifications usually required of public officers a. Citizenship

1. Aliens are ineligible to public office, unless the privilege is extended to them by law.

b. Age 1. The age limit for certain offices may, by constitutional or statutory provision, be

placed beyond the age of majority.

c. Right of Suffrage 1. Only electors or voters are eligible for public office.

d. Residence

1. Statute may require that a candidate for election or appointment to an office of a political subdivision or unit be a resident or inhabitant thereof.

2. “Residence” and “Domicile” both mean an intention to reside in a fixed place and personal presence in that place, coupled with conduct indicative of that intention.


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e. Education

1. Some statutes prescribe educational qualifications for certain offices requiring persons possessing professional attainments.

f. Ability to read and write 1. The qualification may be lawfully made since there is no constitutional

prohibition against it especially where it has a reasonable relationship to the duties of the position in question.

g. Political affiliation 1. The Constitution and existing laws sometimes require membership in a political

party or group as a condition for eligibility to certain offices (Constitution, Article VI, Section 17, 18; Local Government Code, Section 45(b)).

h. Civil service exam 1. Qualifications in an appropriate exam for appointment to first and second level

positions in the career service is required under the Civil Service Law to ensure merit and fitness to perform the duties attached to the positions (Presidential Decree No. 807, Section 19(7)).

2. Religious qualifications prohibited.

a. Religious beliefs or opinions cannot be made a test of political right and privilege.

b. No religious test shall be required for the exercise of civil or political rights (Constitution, Article III, Section 5).

3. Power of Congress to impose property qualifications

a. View that law constitutional 1. Legislature has the power to impose property qualifications upon office holders,

unless inhibited by the constitution. This view holds that certain public officers may be required to be resident property owners without violating due process and equal protection laws.

b. View that law unconstitutional 1. This view holds that property ownership requirement runs against due process

and equal protection guarantees as there is no rational connection between qualifications for administering public affairs and ownership of real property.

2. The Supreme Court declared as unconstitutional a law requiring all candidates for public offices to post a surety bond equivalent to the one year salary or emoluments for the position for which they are candidates (Maquera v. Borra, 15 SCRA 7 (1965)).

4. Qualifications prescribed by the Constitution for certain officers

a. President and Vice-President

“No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.” (Constitution, Article VII, Section 2)


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b. Senators

“No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and resident of the Philippines for not less than two years immediately preceding the day of the election.” (Constitution, Article VI, Section 3)

c. Members of the House of Representatives

“No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.” (Constitution, Article VI, Section 6)

d. Members of the Supreme Court and lower collegiate court

“No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines.” (Constitution, Article VIII, Section 7(1)).

1. “A member of the judiciary must be a person of proven competence, integrity,

probity and independence.” (Constitution, Article VIII, Section 7(3)).

e. Chairman and Commissioners of the Civil Service

“The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment.” (Constitution, Article IX-B, Section 1(1)).

f. Chairman and Commissioners of the Commission on Elections

“There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years.” (Constitution, Article IX-C, Section 1(1)).


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g. Chairman and Commissioners of the Commission on Audit

“There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, certified public accountants with not less than ten years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years, and must not have been candidates for any elective positions in the elections immediately preceding their appointment. At no time shall all Members of the Commission belong to the same profession.” (Constitution, Article IX-D, Section 1(1)).

h. Chairman and Members of the Commission on Human Rights

“The Commission shall be composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law.” (Constitution, Article XIII, Section 17(2)).

i. Ombudsman and his deputies

“The Ombudsman and his deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding elections. The Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines.” (Constitution, Article XI, Section 8).

5. Qualifications prescribed by law for certain officers

a. Secretaries of Departments

“The Secretaries shall be citizens of the Philippines and not less than twenty-five years of age.” (Administrative Code of 1987, Book IV, Chapter 10, Section 45).

b. Presiding Justice and Associate Justices of the Court of Appeals

“The Presiding Justice and Associate Justices shall have the same qualifications as those provided in the Constitution for Justices of the Supreme Court.” (Batas Pambansa Blg. 129, Section 7).


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c. Judges of the Regional Trial Courts

“No persons shall be appointed Regional Trial Court judge unless he is a natural-born citizen of the Philippines, at least thirty-five years of age, and, for at least ten years, has been engaged in the practice of law in the Philippines requiring admission to the practice of law as an indispensable requisite.” (Batas Pambansa Blg. 129, Section 15).

d. Judges of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts

“No person shall be appointed judge of a Metropolitan Trial Court, Municipal Trial Court, or Municipal Circuit Trial Court unless he is a natural-born citizen of the Philippines, at least 30 years of age, and, for at least five years, has been engaged in the practice of law in the Philippines, or has held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite.” (Batas Pambansa Blg. 129, Section 26).

e. Elective local official 1. “An elective local official must be a citizen of the Philippines; a registered voter

in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

2. Candidates for the position of governor, vice-governor or member of the sangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must at least be twenty-three (23) years of age on election day.

3. Candidates for the position of mayor or vice-mayor of independent component

cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.

4. Candidates for the position of member of the sangguniang panlungsod or

sangguniang bayan must be at least eighteen (18) years of age on election day.

5. Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day.

6. Candidates for the sangguniang kabataan must be at least fifteen (15) years of age, but not more than twenty-one (21) years of age on election day.” (Local Government Code (R.A. No. 7160), Section 39.)

f. Members of the Board of Election Inspectors

“No person shall be appointed Chairman, member, or substitute member of the Board of Election Inspectors unless he is of good moral character and irreproachable reputation, a registered voter of


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the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six months of imprisonment, or if there is a pending information against him for any election offense. He must be able to speak and write English or the local dialect.” (Omnibus Election Code, Section 166)

SUMMARY OF QUALIFICATIONS

President and VP Senators Members of the

House of Representatives

Members of the Supreme Court, lower collegiate courts

Citizenship Natural-born Natural-born Natural-born Natural-born Age 40 years 35 years 25 years 40 years Residency Philippines, at least 10

year Philippines, at least 2 year

District, at least 1 year -

Right to suffrage Resident voter Resident voter Resident voter - Educational or professional background

Read and write Read and write Read and write 15 years or more, judge or engaged in practice of law in the Philippines

Others Person of proven competence, integrity, probity and independence

CSC Chair and

Commissioners COMELEC Chair and Commissioners

COA Chair and Commissioners

CHR Chair and Commissioners

Ombudsman and his Deputies

Composition Chairman + 2 Com

Chairman + 6 Com

Chairman + 2 Com

Chairman + 4 Com

Citizenship Natural-born Natural-born Natural-born Natural-born Natural-born Age 35 years 35 years 35 years

-

40 years

Educational or professional background

Proven capacity for public administration

College degree holder BUT majority, including the Chair, lawyers in practice of law for at least 10 years

CPA not less than 10 years of auditing experience or lawyers in practice of law for 10 years No time all the same profession

Majority must be lawyers

Lawyers in practice for at least 10 years Recognized probity and independence

Disqualification Candidates for any elective position in election immediately preceding their appointment

Term of office and other qualify to be provided by law

Department

Secretary Presiding Justice and CA Assoc Justices

RTC Judge MTC, MCTC, MeTC Judge

Citizenship Citizen of the Philippines

Natural born Natural born Natural born

Age 25 years of age 40 years of age 35 years of age 30 years of age Educational or Professional background

- At least 15 years judge or practicing law in the Philippines

At least 10 years judge or practicing law in the Philippines

At least 5 years judge or practicing law in the Philippines

Gov & VGov,

Member of Mayor & VMayor of Independent

Member of Sangguniang

Punong Barangay or Member of

Member of Sangguniang


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Sangguniang Panlalawigan,Mayor, VMayor, Member of Sangguniang Panglungsod of Highly Urbanized Cities

Component Cities, Component Cities, Municipalities

Panglungsod or Sangguniang Bayan

Sangguniang Barangay

Kabataan

Citizenship Citizen of the Philippines

Citizen of the Philippines




Right of Suffrage Registered Voter Registered Voter Registered Voter Registered Voter Registered Voter Age 23 years 21 years 18 years 18 years At least 15 but

not more than 21 Educational or Professional background

Read and write Filipino or any local language or dialect





6. Disqualifications to hold public office

a. Causes of disqualification to hold public office 1. Mental or physical incapacity

a. Law requires a public officer to be in possession of his mental faculties.

b. Blindness may not necessarily disqualify a person from public office if he possesses the other qualifications imposed by law.

2. Misconduct or crime

a. Persons convicted of crimes involving moral turpitude are usually disqualified from holding public office.

b. The wording or the applicable constitutional or statutory provisions determines whether the ineligibility to hold office because of a crime results from mere commission or arises only after prosecution and conviction.

c. A violation of a municipal ordinance to qualify as a “crime” must involve at

least a certain degree of evil doing, immoral conduct, corruption, malice, or want of principles reasonably related to the requirements of the public office.

3. Impeachment

a. Persons subject to impeachment: 1. President 2. Vice-President 3. Members of the Supreme Court 4. Members of Constitutional Commission 5. Ombudsman

b. Judgment in impeachment cases is limited to removal from office and disqualification to hold any office under the Republic of the Philippines but the convicted person shall still be subject to prosecution, trial and punishment according to law. (Constitution, Article XI, Section 3(7).

Estrada vs. Desierto (356 SCRA 108)


17

Section 3(7), Article XI of the 1987 Constitution does not require that petitioner should first be convicted in the impeachment proceedings before he can face prosecution for the criminal offenses filed before the Office of the Ombudsman. Instead, the said constitutional provision provides for two things: first, judgment in impeachment is limited only to removal from office and disqualification from holding any other office in the government; and second, the party convicted may still be held liable under prosecution and punishment according to law. Further, the impeachment proceedings have become moot and academic due to petitioner's resignation. The impeachment court is now functus officio. It is unreasonable to demand that petitioner should first be impeached before criminal cases may be filed against him because the same would result to a perpetual bar from prosecution.

4. Removal or suspension from office

a. Removal from office bars the removed officer from being elected or appointed to fill the vacancy for the unexpired term but it does not disqualify him to take some other office or be elected or appointed to a new term of the same office.

5. Previous tenure of office

a. President – is absolutely disqualified for any re-election regardless of the length of his service. A person who succeeded as President is disqualified for re-election if he has served for more than 4 years. (Constitution, Article VII, Section 4)

b. Chairman and Commissioners of the Civil Service Commission, Commission on Elections, and Commission on Audit – are appointed by the President without reappointment.

c. Ombudsman and his Deputies – are not qualified to run for any office in the election immediately succeeding their cessation from office.

6. Consecutive terms

a. Vice-President – shall not serve for more than 2 successive terms. Voluntary renunciation of the office shall not be considered an interruption of the service for the full term for which he was elected. (Constitution, Article VII, Section 4)

b. Senator – shall not serve for more than 3 consecutive terms (Constitution, Article VI, Section4)

c. Members of the House of Representatives – shall not serve for more than 3 consecutive terms. (Constitution, Article VI, Section 7)

d. Elective officials (except barangay officials) – shall not serve for more than 3 consecutive terms (Constitution, Article X, Section 8)

7. Holding more than one office

a. No constitutional right to holding incompatible offices. b. A person who accepts and qualifies for a second and incompatible office is

deemed to vacate, or, by implication, to resign from the first office.

8. Relationship with the appointing power

“The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as members of the Constitutional Commissions, or the


18

Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus of offices, including government-owned or controlled corporations and their subsidiaries.” (Constitution, Article VII, Section 13)

a. Appointments should be based solely on merit and fitness, uninfluenced by any personal or filial consideration.

b. Restriction is not applicable to: 1. Members of family who contracted marriage with anyone in position

already 2. Persons employed in a confidential capacity 3. Teachers 4. Physicians 5. Members of the Armed Forces of the Philippines

9. Office newly created or the emoluments of which have been increased

Senators and members of the House of Representatives are prohibited from being appointed to any office which may have been created or the emoluments thereof increased during the term for which they were elected. (Constitution, Article VI, Section 13)

a. “Emolument” does not refer to the fixed salary alone but includes such fees and compensations which the incumbent is entitled to receive by law.

10. Being an elective official

“No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.” (Constitution, Article IX-B, Section 7)

a. Prohibition seeks to minimize the “spoils system”

b. The disqualification exists only during the tenure in office (versus term of office) of the elective official.

c. Elective official must forfeit his seat if he decides to accept appointment in

another public office or position during his term.

11. Having been a candidate for any elective position

“No candidate who has lost in any election, shall within one year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in any of its subsidiaries.” (Constitution, Article IX-B, Section 6)


19

Members of the Civil Service Commission, Commission on Elections, and Commission on Audit are also prohibited by the Constitution to become candidates for any elective position in the elections immediately preceding their appointment. (Constitution, Article IX-B, Section 1(1); Article IX-C, Section 1(1), Article IX-D, Section 1(1))

12. Under the Local Government Code a. The following are disqualified from running for any elective local position:

1. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence;

2. Those removed from office as a result of an administrative case; 3. Those convicted by final judgment for violating the oath of allegiance to

the Republic; 4. Those with dual citizenship; 5. Fugitive from justice in criminal or non-political cases here or abroad; 6. Permanent residents in a foreign country or those who have acquired

the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

7. Insane or feeble-minded.

b. With respect to the appointment of elective and appointive local officials and candidates who lost in an election, the Code provides that they cannot, within 1 year after such election, be appointed to any office in the government or government-owned or controlled corporations or in any of its subsidiaries (except losing candidates in barangay elections).

“(a) No elective or appointive local official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or -controlled corporations or their subsidiaries. (b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to any office in the government or any government-owned or -controlled corporations or in any of their subsidiaries.” (Republic Act No. 7160, Section 94)

Part 3. Acquisition of Right or Title to Office

A. In General 1. Modes of commencing official relations

a. The selection of persons for public office can only be obtained in the manner prescribed by the Constitution or by law, generally through either: 1. Election 2. Appointment


20

2. Meaning of “Appointment”

a. It is the act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office (versus being elected in office by popular vote). (Borromeo v. Mariano, 41 Phil. 322 (1921)

b. It is equivalent to filling a vacancy in an office. (Conde v. National Tobacco Corp., 15 SCRA 118 (1961)

c. It is the nomination or designation of an individual to an office. (Borromeo v.

Mariano, 41 Phil. 322 (1921)

3. Where appointing power resides a. Inherently belongs to the people

1. The selection of persons for public office is primarily a prerogative of the people but they cannot always be called upon to act immediately when the selection is necessary. Thus, it can be said that the power of the people to select has been conferred by them to the Constitution or laws.

b. Entrusted to designated elected and appointed public officials

c. The appointment of public officials is generally belongs to the executive department, but appointments may also be made by the Congress or the courts to the extent that it is incident to the discharge of their respective functions. (Government v. Springer, 50 Phil. 259 (1927)

d. The power to appoint carries with it the power or remove or discipline. (Aguirre, Jr. v.

De Castro, 321 SCRA 95 (1999); Bagatsing v. Herrera, 65 SCRA 434 (1975); Lacson v. Romero, 84 Phil. 740 (1949)

4. Appointing power generally regarded as an executive function

a. Where power exercised by executive department 1. The power of appointment is intrinsically an executive function. Under the

principle of separation of powers, the creation of a public office is a legislative function; the appointment of persons to office is an executive function; and the legislature may confer this appointing power on the President or another public officer or board within the executive department.

b. Where power exercised by other departments 1. Appointments to office by one department do not involve an encroachment

upon the function of any other branch.

5. Power to appoint discretionary a. Power of courts to review appointment

1. Unless gravely abused, the courts will not review the appointment or reappointment of a public officer. It cannot be subject to a write of mandamus to compel the exercise of such discretion.

2. The appointing power has the prerogative to select, according to his judgment, persons whom he thinks is best qualified among those who have the necessary qualifications and eligibilities, provided, however, that it be exercised in good faith and not in a malicious, harsh, oppressive, vindictive or wanton manner or


21

out of malice or spite. (Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, 140 SCRA 22 (1985)

b. Power of the Civil Service Commission to revoke appointment

1. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position; neither does it have authority to direct the appointment of a substitute of its choice or a successful protestant.

2. The Commission has the power to recall or revoke an appointment initially approved if such appointment is void from the beginning due to fraud on the part of the appointee or because it was issued in violation of law. (Debulgado v. Civil Service Commission, 236 SCRA 184 (1994)

Concepcion v. Paredes (42 Phil. 599 [1921]) The Philippine legislature has no power to enact laws which expressly or impliedly diminish the authority conferred by the Act of Congress on the Chief Executive.

Reyes v. Abeleda (22 SCRA 825 [1968]) A person next-in-rank, competent and qualified to hold the position, is entitled to a vacancy occurring in any competitive or classified position in the government. If there are 2 or more persons under equal circumstances, seniority must be given preference.

Cuyugkeng v. Cruz (108 Phil. 1147 [1960]) JC questioned the appointment of PC as members of the Board of medical Examiners since his name was not included in the list made by the Executive Council of the Philippine Medical Association pursuant to Section 13 of Republic Act No. 2382. The appointment of PC was valid but the members of the Supreme Court had three views. The first view believes that Section 14 is unconstitutional because it would constitute a reduction and impairment of the appointing power vested in the President by the Constitution. Moreover, inclusion in the list is not one of the requirements in Section 14. The second view is that Section 13 is unconstitutional but is merely directory in nature. Third view says that it is not necessary to pass upon the constitutionality of Section 13 or to determine whether it is merely directory or mandatory. The appointment is sanctioned by Section 15, for in cases of conflicts between 2 provisions of the same statute, the latter one prevails.

6. Power may be absolute or conditional a. Absolute – where the choice of the appointing authority is conclusive if it falls upon

an eligible person. No further consent or approval is necessary.


22

b. Conditional – where assent or approval by some other officer or body, such as the

Commission on Appointments, is necessary to complete the appointment.

7. Restrictions on the power to appoint a. Generally

1. Persons to be appointed to a public office should possess the required qualifications and be selected solely with a view to the public welfare.

b. Under the Constitution 1. Appointments by the President are subject to the following Constitutional

provisions: a. “The spouse and relatives by consanguinity of affinity within the fourth civil

degree of the President shall not, during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.” (Constitution, Article VII, Section 13)

b. “Two months immediately before the next presidential elections up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.” (Constitution, Article VII, Section 15)

c. “The Congress, may, by law, vest the appointment of other officers lower in

rank in the President alone, in the court, or in the heads of departments, agencies, commissions or boards.” (Constitution, Article VII, Section 16)

d. “The Supreme Court shall have the following powers: x x x Appoint all

officials and employees of the judiciary in accordance with the Civil Service Law.” (Constitution, Article VIII, Section 5(6))

e. “The Members of the Supreme Court and judges of lower court shall be

appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.” (Constitution, Article VIII, Section 9)

f. “The Constitutional Commissions shall appoint their officials and employees

in accordance with law.” (Constitution, Article IX-A, Section 4)

g. The Members of the Civil Service Commission, Commission on Elections, and Commission on Audit shall be appointed “without reappointment x x x. 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.” (Constitution, Article IX-B, Section 1(2); Article IX-C, Section 1(2); Article IX-D, Section 1(2).

h. “No candidate who has lost in any election shall, within one year after such

election, be appointed to any office in the government or any government-


23

owned or controlled corporations or in any of their subsidiaries.” (Constitution, Article IX-B, Section 6)

i. “The officials and employees of the Office of the Ombudsman, other than

the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law.” (Constitution, Article XI, Section 6)

j. “The Ombudsman and his Deputies shall be appointed by the President

from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.” (Constitution, Article XI, Section 9)

c. Under existing laws

1. Restrictions on the power to appoint are normally found in the provisions prescribing the qualifications and disqualifications to a public office. Unless prohibited by the Constitution, Congress may add qualifications or disqualifications to those provided in the Constitution but may not supersede them.

8. When appointment deemed complete

a. Not subject to confirmation 1. When the power of appointment is absolute, the formal evidence of appointment

(i.e., the commission) may issue at once.

b. Subject to confirmation 1. Where the confirmation of some other officer of body is required, the

commission can be issued only when confirmation is obtained.

c. Approval by the Civil Service Commission 1. Appointments to positions in the Civil Service must be submitted to the

Commissioner for approval. The attestation of the CSC merely assures the eligibility of the appointee and is actually not necessary to complete the appointment.

d. Effects of completed appointment 1. Appointing officer’s power over the office is terminated in all cases where by law

the officer is not removable by him. The right to the office is in the appointee. Appointment to a position already filled cannot be made.

9. Acceptance of appointment precedes acceptance by the appointee and is entirely

distinct from it a. Not necessary to completion or validity of appointment

1. When the appointing officer acts within his authority, the appointment is complete whether it is accepted or refused.

b. Necessary to possession of office 1. Acceptance is not necessary to give validity to an appointment but it is

necessary to enable the appointee to have full possession, enjoyment, and responsibility of an office. (Magana v. Auditor-General, 107 Phil. 900 (1960)

10. Form of acceptance


24

a. Express – may be done verbally, in writing, by taking the oath of office, or posting of bond.

b. Implied – when, without formal acceptance, the appointee exercises or performs the duties and functions of an office.

11. Obligation of elected or appointed individual to accept office

a. Generally not subject to compulsion 1. A person may not be compelled to accept a public office.

2. Exceptions:

a. “The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.” (Constitution, Article II, Section 4)

b. “The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office.” (Revised Penal Code, Article 234)

c. Male inhabitants of a certain age may be required to assist in preserving the

peace and order of the community. (U.S. v. Pompeya, 31 Phil. 245 (1915))

b. Obligation in the nature of a social duty 1. Every person who enters into civil society must have a social duty to share in the

public burdens by accepting and performing the duties of public offices to which he may be lawfully chosen.

12. Necessity of written appointment

a. View that appointment should be evidenced by a writing 1. The appointment must be evidenced in a way that the public may know when

and in what manner the duty has been performed because appointment to office affects the public and not merely private rights.

b. Contrary view 1. The right of the appointee to be inducted depends upon the fact of

appointment, and not on his ability to establish the fact of appointment by production of the written appointment where the law does not provide a specific manner in which the appointment shall be made.

Venecia v. Peralta (8 SCRA 692 [1963]) Venecia was appointed acting chairman of NAWASA in 1961 by the President. He, however, said that he was appointed ad interim, and took his oath of office as such. The Commission on Appointments confirmed the appointment. Less than a year after, Peralta was appointed ad interim by the new President to the same position. Venecia’s oath and confirmation did not imply a prior ad interim appointment. The only reliable evidence on the matter is that Venecia was appointed only as acting Chairman, and this could not ripen into a permanent one even with the confirmation by the Commission on Appointments


25

because there was no valid nomination or recess of appointment. It was incumbent upon Venecia to prove that he was indeed appointed ad interim, and the better rule requires some kind of written memorial that could render title to public office indubitable.

13. Revocation of appointment

a. Where appointment final and complete 1. General rule is that once appointment to an office is made and complete, it is

not subject to reconsideration or revocation, except if the officer is removable at the will of the appointing power.

b. Where appointee has assumed position 1. The moment an appointee assumes a position in the civil service under a

completed and approved appointment, he acquires a legal, not merely an equitable right, which is protected by statute and the Constitution and can only be revoked or removed for cause and with previous notice and hearing.

c. Where protestant more qualified than appointee 1. As long as the appointee possesses the minimum required qualifications, he

cannot be removed even if protestant is more qualified than the first appointee.

B. Appointments by the President 1. Power of appointment of the President

a. “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 forced from the rank of colonel or naval captain and other officers whose appointments are vested in him in this Constitution. He shall also appoint other officers of the Government whose appointments are not otherwise provided 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, 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 disapproval by the Commission on Appointments or until the next adjournment of the Congress.” (Constitution, Article VII, Section 16)

b. Four groups of officials whom the President is authorized to appoint: 1. Heads of executive departments, ambassadors, other public ministers and

consuls, officers of the armed forces from the rank of colonel or naval captain, regular members of the JBC, SC and judges, Chairman and Commissioners of the COMELEC and Commission on Audit, Members of the regional consultative commission

2. All other officers whose appointments are not otherwise provided by law.

3. Those whom the President may be authorized by law to appoint.

4. Other officers lower in rank whose appointments the Congress, by law, vests in the President alone.


26

2. Confirmation of appointments by Commission on Appointments a. Only the officers in the first group above require the consent or confirmation of the

Commission on Appointments. Congress cannot, by law, require confirmation of appointments of other officers.

b. The President appoints the members of the SC, judges of the lower courts including the Sandiganbayan, the Tanodbayan and his deputies from a list made by the Judicial and Bar Council. These do not require confirmation of the Commission on Appointments. Same rule applies if the Vice-President is appointed to a cabinet position.

c. The Administrative Code also vests in the President the power to appoint the

Chairman and members of the Commission on Human Rights, which is likewise not subject to confirmation of the Commission on Appointments. (Administrative Code, Book V, Chapter 13, Title II, Subtitle A, Section 4; Bautista v. Salonga, 172 SCRA 160 (1989))

3. Appointments by other officials

a. Article VII, Section 16 of the Constitution vests in the courts, heads of departments, agencies, commissions, or boards the power to appoint officers lower in rank in their respective offices. “Lower in rank” refers to officers subordinate to those enumerated officers upon whom the power of appointment may be vested.

4. Kinds of Presidential appointments

a. Regular 1. Those appointments made while Congress is in session. 2. These are actually mere nominations which are subject to confirmation by the

Commission on Appointments.

b. Ad interim 1. Those made while Congress is not in session or is in recess.

c. Permanent

1. Those which subsist until lawfully terminated.

d. Temporary or Acting 1. Those which last until a permanent appointment is made.

Appointments which are required to be submitted to the Commission on Appointments are either regular or ad interim and are permanent in nature.

5. Ad interim appointments

a. These are appointments made by the President while Congress is in recess, thus, the Commission on Appointments may only deliberate upon such appointments when Congress goes into session.

b. The President is usually aided by the Commission on Appointments’ advice when it comes to appointments. In the case of ad interim appointments, however, the President acts alone and the system of checks and balances vital to our system of government is not in place.

c. Ad interim appointments, however, are necessary due to the existence of situations

where there is a clear and present urgency caused by an impending obstruction or


27

paralysis of the functions assigned to office to be filled if no immediate appointment is made.

d. An ad interim appointment is permanent in nature and not a mere temporary or

acting appointment even if it is subject to confirmation by the Commission on Appointments. However, it may be recalled or revoked by the President before confirmation.

Rosales v. Yenko (15 SCRA 766 [1965]) R was appointed ad interim Chairman of the Board of Examiners, but his appointment papers were not released to him. The Civil Service Commission informed him that his appointment had been recalled and the President instead appointed Y as acting Chairman. The ad interim appointment of R is invalid, illegal and does not subsist. Since his appointment was never released, it is incomplete and there was in fact and in law no ad interim appointment that could be validly transmitted to and acted upon by the Commission on Appointments.

6. Temporary or acting appointments a. Generally, the power to appoint vested in the President includes temporary or acting

appointments, unless otherwise provided by law. (Cabiling v. Pabualan, 14 SCRA 274 (1965))

b. Since acting appointments are temporary, they cannot be validly confirmed by the Commission on Appointments because confirmation presupposes a valid nomination of ad interim appointment. (Valencia v. Peralta, 8 SCRA 692 (1963))

c. A person appointed in an acting capacity has no personality to bring a quo warranto

action against the permanent appointee to the position as he is not entitled to the office. (Sevilla v. Court of Appeals, 209 SCRA 637 (1992); Rules of Court, Rule 66, Section 6)

d. A person appointed in an acting capacity has no fixed tenure of office and his

appointment can be terminated at the pleasure of the appointing power. However, such appointments cannot be used to circumvent the security of tenure principle in the Constitution and Civil Service Law. (Civil Service Commission v. Darangina, 513 SCRA 648 (2007); Gayatao v. Civil Service Commission, 210 SCRA 183 (1992))

e. An unqualified person cannot be appointed even in an acting capacity. (Ignacio v. Banate, Jr., 153 SCRA 546 (1987))

7. Designations

a. Designation is merely the imposition of new or additional duties upon an officer to be performed by him in a special manner while performing the functions of his permanent office.

b. It presupposes that the officer is already in service by virtue of an earlier appointment. It is revocable and temporary in character and does not confer security of tenure.


28

c. It does not entitle the officer designated to additional benefits or the right to claim salary attached to the position. Neither can the Commission on Appointments validly act upon it, as there is no appointment issued. (Dimaandal v. Commission on Audit, 291 SCRA 322 (1998)

8. Steps in the appointing process

a. Nomination 1. It is the exclusive prerogative of the President and Congress may only limit such

prerogative in cases where concurrence of the Commission on Appointments is needed and where legislature is vested with the power to prescribe the qualifications to a given appointive office. (Manalang v. Quitoriano, 94 Phil. 903 (1954))

Rafael v. EACIB (21 SCRA 336 [1967]) Republic Act No. 3137 created the Embroidery and Apparel Control and Inspection Board (EACIB), Section 2 of which provides the composition of the Board. The validity of the Act was attacked on the ground that while Congress may create an office, it cannot specify who the President can appoint therein. Section 2 of Republic Act No. 3137 does not deprive the President of his power to appoint. Where no appointments are necessary, and officials occupy another position in an ex-oficio capacity, the President is not deprived of his constitutional power to make appointments even if Congress prescribes which officials should occupy the said ex-oficio positions.

b. Confirmation 1. The power to confirm or reject certain appointments belongs to Congress

through the Commission on Appointments since it is a check on the executive.

2. A confirmation cannot be reconsidered after the President has been notified of the confirmation and has completed the appointment by issuing a commission the appointee even if the rules of the confirming body provide for reconsideration.

c. Issuance of commission 1. “Commission” is the written authority from a competent source given to the

officer as his warrant for the exercise of the powers and duties of the office. It is the written evidence of the appointment.

2. When a person is elected to office, his right as established as a result of the election and does not depend upon the issuance of a commission. Issuance of a commission to an elected officer is merely a ministerial act and not a part of the act of appointment. Instead, the elected officer is entitled to a certificate of election.

C. Appointments in the Civil Service

1. The Civil Service System a. Scope - all branches, subdivisions, instrumentalities and agencies of the

government including GOCCs with original charter. This covers the administrative


29

personnel of the entire government system, both national and local, including the military.

b. Purpose – to enable the national and local government and all its instrumentalities and agencies to render more efficient services to the public by enabling them to obtain efficient public servants. The Civil Service system seeks to establish a merit system of fitness and efficiency as the basis of appointments.

2. Classifications of positions in the Civil Service

a. Career Service 1. Characteristics of career service:

a. Entrance is based on merit and fitness which is determined by competitive examinations or are based on highly technical qualifications

b. Security of tenure

c. Opportunity for advancement to higher career positions

2. Career service includes: a. Open career positions for appointments requiring prior qualification in an

appropriate examination;

b. Closed career positions which are scientific or highly technical in nature. These include faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit system

c. Positions in the Career Executive Service (i.e., Undersecretary, Assistant

Secretary, Bureau Director, Assistant Bureau Director, Chief of Department Service, and other officers of equivalent rank as may be identified by the Career Executive Service Board and appointed by the President);

d. Career officers other than those in the Career Executive Service who are

appointed by the President (i.e., Foreign Service Officers in the Department of Foreign Affairs);

e. Commissioned officers and enlisted men of the Armed Forces

f. Personnel of government-owned and controlled corporations whether

performing governmental or proprietary functions who do not fall under non-career services; and

g. Permanent laborer, whether skilled, semi-skilled, or unskilled.

b. Non-Career Service

1. Characteristics of non-career service: a. Entrance on bases other than those of the usual test of merit and fitness

b. Tenure which is limited to a period specified by law or coterminous with that

of the appointing authority or subject to his pleasure or limited to the duration of a particular project

2. Non-career service includes:


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a. Elective officials and their personal or confidential staffs

b. Department heads and other officers of cabinet rank and their staffs

c. Chairmen and members of commissions and boards with fixed terms of office and their staffs

d. Contractual personnel (i.e., 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, within a specific period and shall not exceed 1 year, and performs with minimum direction and supervision)

e. Emergency and seasonal personnel (Presidential Decree No. 807 (1975),

Sections 5 and 6; Executive Order No, 292, Book V, Title I, Sections 7 and 9)

f. Casual employees (employment is not permanent but occasional, unpredictable, sporadic and brief in nature) (Chua v. Civil Service Commission, 206 SCRA 65 (1992))

3. Classes of positions in the career service

a. Three major levels of positions in the career service appointment requiring examinations: 1. Clerical, trades, crafts, and custodial service positions

2. Professional, technical, and scientific positions

3. Career Executive Service (officials of this level have no security of tenure and

may be removed anytime unless they have secured an eligibility from the Career Executive Service Board (CESB) and have been issued the Career Executive Service Officer (CESO) rank by the President upon recommendation of the CESB)

b. Requirements of competitive examinations

1. Entrance to the first two levels are through competitive examinations.

2. Entrance to the third level is prescribed by the CESB and does not require previous qualifications to the lower level.

3. For promotion to a higher position in one or more related occupational groups,

no examination is required within the same level. However, the candidate for promotion must have previously passed the examination for the level. (Presidential Decree No. 807 (1975), Section 7; Executive Order No, 292, Book V, Title I, Section 8)

4. Constitutional classification

a. Competitive - Those whose appointments are made according to merit and fitness as determined by competitive examinations.

b. Non-competitive – Those whose appointments do not take into account merit and fitness as determined by competitive examinations. These include positions which are policy-determining, primarily confidential, or highly technical in nature. (Constitution, Article XI-B, Section 2(2))


31

5. Determination of merit and fitness by competitive examinations

a. Generally, the selection of any appointee to any government position shall be made only according to merit and fitness to be determined, as far as practicable, by competitive examinations to perform duties and assume the responsibility of the position, without regard to any other consideration such as sex, color, social status, religion, or political affiliation.

b. In order to be competitive, the examination must be given under an objective standard of grading and must conform to measures and standards.

c. Denominating an examination as competitive does not make it competitive. The

examination must be competitive in substance, not merely in form.

d. Oral examinations may be deemed competitive where tests of manual or professional skill are necessary.

6. Exemption from rule of non-competitive positions

a. Though policy-determining, primarily confidential and highly technical positions are exempt from competitive examinations and still enjoy the operation of the principle: “no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law”.

b. Whether an administrative position is primarily confidential, policy-determining, or highly technical is the nature of the functions attached to the position.

c. Policy determining position

1. Its occupant is vested with the power of formulating policies for the government or any of its agencies, subdivisions or instrumentalities.

d. Primarily confidential position 1. Its occupant enjoys more than the ordinary confidence in his aptitude of the

appointing power but bears primarily such close intimacy which insures freedom of intercourse without embarrassment of freedom from misgiving of betrayal of personal trust on confidential matters of the State. More than ordinary confidence is required.

2. A position may be considered primarily confidential when the President, upon recommendation of the Civil Service Commissioner, has declared it to be. (Salazar v. Mathay, 73 SCRA 275 (1976))

3. It is the nature of the position which finally determines whether a position is

primarily confidential.

4. Primarily confidential appointee is not subject to removal at the pleasure of the appointing authority. Instead, termination of such an appointee’s official relation can be justified on the ground of loss of confidence, which involves no removal but merely the expiration of the term of office. (Hernandez v. Villegas, 14 SCRA 544 (1965))

e. Highly-technical position – Its occupant is required to posses skills or training in the

supreme or superior degree.


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7. Qualification standards in the Civil Service a. These are the minimum requirements for a class of position in terms of education,

training, experience, civil service eligibility, physical fitness, and other qualities required for successful performance. The degree of qualifications is determined by the appointing authority on the basis of qualification standards for the particular position.

b. Use of qualification standards

1. As basis for civil service examinations for positions in the career service

2. As guides in the appointment and other personnel actions in the adjudication of protested appointments

3. In determining training needs

4. As aid in the inspection and audit of the agencies’ personnel work programs

(Presidential Decree No. 807, Section 20)

c. Establishment, administration and maintenance of qualification standards 1. The department or agency, with the assistance and approval of the Civil Service

Commission and in consultation with the Wage and Position Classification Office, is responsible for the establishment, administration and maintenance of qualification standards.

d. Approval of qualification standards

1. Approval of the Civil Service Commission is required by law because it is the government’s central personnel agency entrusted with the enforcement of laws relative to the selection, promotion, and discipline of civil servants.

e. Offsetting of deficiencies

1. When necessary, education, experience or training may be used interchangeably to offset deficiencies, except the required eligibility. The decision as to when the conditions give rise to necessity to interchange education with experience or training and vice-versa rests upon the sound discretion of the appointing authority.

8. Kinds of appointment in the career service

a. Permanent 1. One which is issued to a person who meets all the requirements for the position

including the approp

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