Elections Reviewer For Finals

Election Laws: 2011 Finals Reviewer
This reviewer has two parts: 1. Outline based laws and cases 2. Discussion based Transcriptions ___________________________________________ Outline Based Laws and Cases III. COMMISSION ON ! CTIONS a. Co"position and #uali$ications %rt. I&' C' Sec. 1 (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be naturalborn 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. owever, a ma!ority thereof, including the Chairman, shall be members of the Philippine "ar who have been engaged in the practice of law for at least ten years. # chairman $ commissioners %ualifications& 'atural-born citizen - (ho are natural-born citizens) #. citizens of the Philippines from birth who do not need to perform any act to ac*uire or perfect their Philippine citizenship. +. Those who elect Philippine citizenship under ,rt. -., /ec #012. 3 least 14 years old College degree 5ust '6T have been candidates for any elective position in the immediately preceeding elections. Chairman& member of Phil. "ar 7 practiced law for 3 least #8 years 3 least ma!ority of commissioners member of Phil. "ar 7 practiced law for 3 least #8 years Term& 9 years without reappointment, inorder to assure the independence of comelec. -5ust not be engage in any other profession. -/alary is fixed by law and cannot be increased during tenure. as fiscal autonomy and there is assurance that approval of annual appropriations shall be automatic and regular. -:emovable only by impeachment. %rt. *II' Sec. 1+' par. 2 The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as 5embers of the Constitutional Commissions, or the 6ffice of the 6mbudsman, or as /ecretaries, ;ndersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Ca,etano vs. Monsod Practice of law means any activity, in or out of court, which re*uires the application of law, legal procedure, <nowledge, training and experience. =To engage in the practice of law is to perform those acts which are characteristics of the profession. >enerally, to practice law is to give notice or render any <ind of service, which device or service re*uires the use in any degree of legal <nowledge or s<ill.= -s teaching considered practice of law) 'o. ,ccording to ;./. !urisprudence teaching is not practice of law. There must be a client and lawyer relationship. b. %ppoint"ent and ter" o$ o$$ice o$ Co""issioners %rt. I&' C' Sec. 1(2) - The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on ,ppointments for a term of seven years without reappointment. 6f those first appointed, three 5embers shall hold office for seven years, two 5embers for five years, and the last 5embers for three years, without reappointment. ,ppointment to any vacancy shall be only for the unexpired term of the predecessor. -n no case shall any 5ember be appointed or designated in a temporary or acting capacity. b.1. Dis.uali$ications %rt. I&' %' Sec. / - The Constitutional Commissions shall appoint their officials and employees in accordance with law. b.2. Salar, %rt. &*III' Sec. 10 - ;ntil the Congress provides otherwise, the President shall receive an annual salary of three hundred thousand pesos? the .ice-President, the President of the /enate, the /pea<er of the ouse of :epresentatives, and the Chief @ustice of the /upreme Court, two hundred forty thousand pesos each? the /enators, the 5embers of the ouse of :epresentatives, the ,ssociate @ustices of the /upreme Court, and the Chairmen of the Constitutional Commissions, two hundred four thousand pesos each? and the 5embers of the Constitutional Commissions, one hundred eighty thousand pesos each. %rt. I&' %' Sec + - The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure. b.+. %ppoint"ent o$ personnel %rt. I&' %' Sec. / - The Constitutional Commissions shall appoint their officials and employees in accordance with law. b./. 1e"oval %rt. &I' Sec. 2 - The President, the .ice-President, the 5embers of the /upreme Court, the 5embers of the Constitutional Commissions, and the 6mbudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. ,ll other public officers and employees may be removed from office as provided by law, but not by impeachment. c. 2unctions 3a,tan vs Co"elec ;nder /ection +, ,rticle -A-C of the #BC9 Constitution, the C65EDEC exercises both administrative and *uasi-!udicial powers. The C65EDECEs administrative powers are found in /ection + 0#2, 012, 0F2, 042, 0$2, 092, 0C2, and 0B2 of ,rticle -A-C. The #BC9 Constitution does not prescribe how the C65EDEC should exercise its administrative powers, whether en banc or in division. The Constitution merely vests the C65EDECEs administrative powers in the =Commission on Elections,= while providing that the C65EDEC =may sit en banc or in two divisions.= Clearly, the C65EDEC en banc can act directly on matters falling within its administrative powers. -ndeed, this has been the practice of the C65EDEC both under the #B91 and #BC9 Constitutions. The C65EDECEs exercise of its *uasi-!udicial powers is sub!ect to /ection 1 of ,rticle -A-C which expressly re*uires that all election cases, including pre-proclamation controversies, shall be decided by the C65EDEC in division, and the motion for reconsideration shall be decided by the C65EDEC en banc. The C65EDEC is empowered in /ection +0$2, ,rticle -A-C of the #BC9 Constitution to =prosecute cases of violations of election laws.= The prosecution of election law violators involves the exercise of the C65EDECEs administrative powers. Thus, the C65EDEC en banc can directly approve the recommendation of its Daw Gepartment to file the criminal information for double registration against petitioners in the instant case. There is no constitutional re*uirement that the filing of the criminal information be first decided by any of the divisions of the C65EDEC. 'otes& administrative powers /ec. +. The Commission on Elections shall exercise the following powers and functions& 0#2 Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. 012 Gecide, except those involving the right to vote, all *uestions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. 0F2 Geputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the >overnment, including the ,rmed Horces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

042 :egister, after sufficient publication, political parties, organizations, or coalitions which, in addition to other re*uirements, must present their platform or program of government? and accredit citizensI arms of the Commission on Elections. :eligious denominations and sects shall not be registered. Those which see< to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall li<ewise be refused registration. Hinancial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections, constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. 0$2 Hile, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters? investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. 092 :ecommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. 0C2 :ecommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to, its directive, order, or decision. 0B2 /ubmit to the President and the Congress, a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. o /ection F. The Commission may, during the election period, supervise or regulate the en!oyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the >overnment or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. /uch supervision or regulation shall aim to ensure e*ual opportunity, and e*ual rates therefor, for public information campaigns and forums among candidates in connection with the ob!ective of holding free, orderly, honest, peaceful, and credible elections. The !urisdiction of the C65EDEC does not cover protests over the organizational set-up of the <atipunan ng mga barangay composed of popularly elected punong barangays as prescribed by law whose officers are voted upon by their respective members. The C65EDEC exercises only appellate !urisdiction over election contests involving elective barangay officials decided by the 5etropolitan or 5unicipal Trial Courts which li<ewise have limited !urisdiction. The authority of the C65EDEC over the <atipunan ng mga barangay is limited by law to supervision of the election of the representative of the <atipunan concerned to the sanggunian in a particular level conducted by their own respective organization. %d"inistrative 4owers c.1 n$orce election laws 0#2 Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. c.2 Decide ad"inistrative .uestions pertainin5 to elections' e6cept the ri5ht to vote 7%rt 8' C' Sec 2(+)9 012 Gecide, except those involving the right to vote, all *uestions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. Taule vs. /antos& ComelecEs power to enforce laws relative to the conduct of election, refers to Kpopular electionL 0local 0including barangay2 and national elections2 o Goes not apply to the election of the Hederation of ,ssociations of "arangay Councils 0as in this case2 or /M officials, so comelec does not have !urisdiction Election of /M officials fall under the G-D>
6ther examples of this power to enforce and administer laws& o Power of comelec to loo< into issues regarding the determination of location of polling places, appointment of official and inspectors registration of voters
'ote& constitutional prohibition that the right to vote is not part of comelec power --- no law can ever be passed transferring the inclusion or exclusion cases from the courts to comelec o Constitutional mandate that the right to vote is excluded from comelec powers because the disposition pertaining to rights is inherently !udicial Thus, tegistration of voters, annulment of list of voters belongs to comelec bu the determination of whether a person has the right to vote is with the 5TC
and ad!ucatory powers 0*uasi-!udicial2 /ec. +. The Commission on Elections shall exercise the following powers and functions& 0+2 Exercise exclusive original !urisdiction over all contests relating to the elections, returns, and *ualifications of all elective regional, provincial, and city officials, and appellate !urisdiction over all contests involving elective municipal officials decided by trial courts of general !urisdiction, or involving elective barangay officials decided by trial courts of limited !urisdiction. Gecisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. /ection 1. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including preproclamation controversies. ,ll such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. o
c.+. 4etition $or inclusion or e6clusion o$ voters 7%rt 8' C' Sec 2(:)9 upon a verified complaint or on its own initiative, file petitions in court for the inclusion and exclusion of voters c./. 4rosecute election law violators 7%rt 8' C' Sec 2(:)9; 34 <<1' Sec 2:=; .O. 1+/ Sec 11 investigate and prosecute 0where appropriate2 cases of violation of election laws including acts or omissions constituting election frauds, offenses and malpractices Section 2:=. Prosecution. - The Co""ission shall, through its duly authorized legal officers, have the e6clusive power to conduct preli"inar, investi5ation o$ all election o$$enses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government& Provided, however, That in the event that the Co""ission $ails to act on an, co"plaint within $our "onths $ro" his $ilin5' the co"plainant "a, $ile the co"plaint with the o$$ice o$ the $iscal or with the Ministr, o$ >ustice $or proper investi5ation and prosecution' i$ warranted. Sec. 11. 4rosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same& Provided, That in the event that the Commission fails to act in any complaint within two 0+2 months from filing, the complainant may file the complaint with the 6ffice of the Hiscal or with the Gepartment of @ustice for proper -nvestigation and prosecution, if warranted. The Commission may avail of the assistance of other prosecuting arms of the government.
-mportance of classifying the powers& because procedureJ remedies are different depending on whether it exercises ad!ucatory or administrative powers o "ayan vs. Comelec& re*uirement that decisions, ruling and final orders of comelec involving elective officials are re*uired first to go through various stages, plus the re*uirement that must go through comelec in division before proceeding en banc 0see /ec. 1, ,rt. B-C of the #BC9 Constitution2 pertains only to powers exercised by comelec in its *uasi!udicial powers
Taule v Santos

De >esus vs 4eople C65EDEC and not /" has !urisdiction to try election offices committed by public officer in relation to his office The grant to the C65EDEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the C65EDEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and ma<e a mere idle ceremony of the sacred right and duty of every *ualified citizen to vote. To divest the C65EDEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.

Co"elec vs Ta5le -t must be stressed that the C65EDEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. ## The Chief /tate Prosecutor, all Provincial and City Prosecutors, or their respective assistants are, however, given continuing authority, as deputies of the C65EDEC, to conduct preliminary investigation of complaints involving election offenses and to prosecute the same. This authority may be revo<ed or withdrawn by the C65EDEC anytime whenever, in its !udgment, such revocation or withdrawal is necessary to protect the integrity of the C65EDEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the C65EDEC. -n this case, when the C65EDEC nullified the resolution of the Provincial Prosecutor in -./. 'o. #-BB-#8C8, which was the basis of the informations for vote-selling, it, in effect, withdrew the deputation granted to the prosecutor. /uch withdrawal of the deputation was clearly in order, considering the circumstances obtaining in these cases where those who voluntarily executed affidavits attesting to the vote-buying incident and became witnesses against the vote-buyers now stand as accused for the same acts they had earlier denounced. (hat the Prosecutor did was to sabotage the prosecution of the criminal case against the =vote-buyers= and put in serious peril the integrity of the C65EDEC, which filed the said case for vote-buying. -f the Prosecutor had listened to the command of prudence and good faith, he should have brought the matter to the attention of the C65EDEC. 4eople vs 3asilla (e note that while /ection +$4 of the Code vests =exclusive power= to conduct preliminary investigation of election offenses and to prosecute the same upon the Comelec, it at the same time authorizes the Comelec to avail itself of the assistance of other prosecuting arms of the >overnment 0/ection +, ,rticle -A-C of the #BC9 Constitution? Executive 6rder 'o. #1F2. The contention of private respondents that the deputation by the Comelec of the prosecuting arms of the >overnment would be warranted only before the elections and only to ensure free, honest, orderly, peaceful and credible elections, that is, to perform the peace-<eeping functions of policemen, lac<s substance. There is nothing in /ection + 0F2 of ,rticle -A-C of the Constitution which re*uires such a pinched and niggardly interpretation of the authority of the Comelec to appoint as its deputies, officials or employees of other agencies and instrumentalities of the government. The prompt investigation and prosecution and disposition of election offenses constitute an indispensable part of the tas< of securing free, orderly, honest, peaceful and credible elections. The investigation and prosecution of election offenses are, in an important sense, more important than the maintenance of physical order in election precincts. (ithout the assistance of provincial and city fiscals and their assistants and staff members, and of the state prosecutors of the Gepartment of @ustice, the prompt and fair investigation and prosecution of election offenses committed before or in the course of nationwide elections would simply not be possible, unless, perhaps, the Comelec had a bureaucracy many times larger than what it actually has. 5oreover, the prosecution o$$icers desi5nated b, the Co"elec beco"e deputies or a5ents o$ the Co"elec and pro tanto sub?ect to the authorit,' control and supervision o$ the Co"elec in respect o$ the particular $unctions covered b, such deputation. The acts o$ such deputies within the law$ul scope o$ their dele5ated authorit, are' in le5al conte"plation' the acts o$ the Co"elec itsel$. The only limitation the Constitution itself places upon the ComelecIs authority over its deputies relates to the enforcement of such authority through administrative sanctions. /uch sanctions - e.g., suspension or re"oval "a, be reco""ended b, the Co"elec to the 4resident 0/ec. + NCO, ,rticle -A-C, #BC9 Constitution2 rather than directly imposed by the Comelec, evidently, to pre-empt and avoid potential difficulties with the executive department of the >overnment where the prosecution and other officers deputized are ordinarily located. 4eople vs Intin5 Goes a preliminary investigation conducted by a Provincial Election /upervisor involving election offenses have to be coursed through the Provincial Hiscal now Provincial Prosecutor, before the :egional Trial Court may ta<e cognizance of the investigation and determine whether or not probable cause exists) This means that the C65EDEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the @udge determine probable cause and for filing an information in court. This power is exclusive with C65EDEC. ence, the Provincial Hiscal, as such, assumes no role in the prosecution of election offenses. -f the Hiscal or Prosecutor files an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the C65EDEC. e does not do so under the sole authority of his office. -n the instant case, there is no averment or allegation that the respondent @udge is bringing in the Provincial Hiscal as a deputy of C65EDEC. e wants the Hiscal to =approve= the C65EDECIs preliminary investigation.
4eople vs Del5ado Issue: authority of the :egional Trial Court 0:TC2 to review the actions of the Commission on Elections 0C65EDEC2 in the investigation and prosecution of election offenses filed in said court is the center of controversy of this petition. ,side from the ad!udicatory or *uasi-!udicial power of the C65EDEC to decide election contests and administrative *uestions, it is also vested the power of a public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the Code before the competent court. Thus, when the C65EDEC, through its duly authorized law officer, conducts the preli"inar, investi5ation o$ an election o$$ense and upon a pri"a $acie $indin5 o$ a probable cause' $iles the in$or"ation in the proper court' said court thereb, ac.uires ?urisdiction over the case . Conse*uently, all the subse*uent disposition of said case must be sub!ect to the approval of the court. The C65EDEC cannot conduct a reinvestigation of the case without the authority of the court or unless so ordered by the court. The records of the preliminary investigation re*uired to be produced by the court must be submitted by the C65EDEC. The trial court may rely on the resolution of the C65EDEC to file the information, by the same to<en that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the issuance of the warrant of arrest. 'evertheless the court may re*uire that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest. The refusal of the C65EDEC or its agents to comply with the order of the trial court re*uiring them to conduct a reinvestigation in this case and to submit to the court the record of the preliminary investigation on the ground that only this Court may review its actions is certainly untenable. what is contemplated by the term @$inal orders' rulin5s and decisions@ o$ the COM ! C reviewable on certiorari b, the Supre"e Court as provided b, law are those rendered in actions or proceedin5s be$ore the COM ! C and taAen co5niBance o$ b, said bod, in the e6ercise o$ its ad?udicator, or .uasi-?udicial powers.= Thus' the decisions o$ the COM ! C on election contests or ad"inistrative .uestions brou5ht be$ore it are sub?ect to ?udicial review onl, b, this Court. c.=. 1eco""end pardon' a"nest,' parole' or suspension o$ sentence o$ election law violators 7%rt 8' C' Sec =9 favorable recommendation from the comelec to the President is re*uired c.:. DeputiBe law en$orce"ent a5ents and reco""end their re"oval $or violation o$ its orders 7%rt 8' C' Sec 2(/C<)9 deputize with the concurrence of the president o law enforcement agencies and instrumentalities of the government o including ,HP o for free, orderly, honest, peaceful and credible elections recommend to president the removal of any officer or employee it has deputized o imposition of any other disciplinary action for violation or disregard of or disobedience to its directive, order or decision c.0. 1e5istration o$ political parties' or5aniBations and coalitions and accreditation o$ citiBenDs ar"s N,rt B, C, /ec +042? /ec $,9,C? ,rt $, /ec 40+2O register after sufficient publication

present their platform or program of government religious denominations and sects shall not be registered refuse registration to those o which see< to achieve goals through violence and unlawful means or o refuse to uphold and adhere to the constitution or o which are supported by any foreign government cancel registration when accept financial contribution from foreign governments and their agencies free and open party system according to the free choice of the people for votes to be valid, the political party, organization or coalition shall be registered political parties, organizations or coalitions shall be entitled to appoint poll watchers in accordance with law but they shall not be represented in the votersE registration "E-, "6C or other similar bodies party list representatives shall constitute +8P of the total number of representatives including those under the party list for 1 consecutive terms, Q of the seats allocated to party list representatives shall be filled from the labor, peasant, youth, urban poor, indigenous cultural communities, women, youth and such other sectors as may be provided by law except the religious sector Petitioner filed the election protest 0Civil Case 'o. 1F1-5-B+2 with the :egional Trial Court, whose proceedings are governed by the :evised :ules of Court. /ection #, :ule #1, Part --- of the C65EDEC :ules of Procedure is not applicable to proceedings before the regular courts. ,s expressly mandated by /ection +, :ule #, Part - of the C65EDEC :ules of Procedure, the filing of motions to dismiss and bill of particulars, shall apply only to proceedings brought before the C65EDEC. c.1F. %d?udicator, 7%rt 8' C' Sec 2(2)9; + exclusive !urisdiction over all contests relating to elections, returns and *ualifications of all elective regional, provincial and city officials appellate !urisdiction over all contests involving elective municipal officials decided by :TC or involving elective barangay officials decided by 5TCs decide except the right to vote all *uestions affecting elections 0c.+.2 comelec may sit en banc or in + divisions and shall promulgate its rules of procedure in order to expedite disposition of election cases including preproclamation controversies all such election cases shall be heard and decided in division motions for reconsideration of decisions shall be decided by the commission en banc >avier vs Co"elec -n ma<ing the Commission on Elections the sole !udge of all contests involving the election, returns and *ualifications of the members of the "atasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners The C65EDEC en banc must hear and resolve a pre-proclamation controversy for "atasan members Canicosa vs Co"elec Petition should have first been heard by a division of C65EDEC and later by the C65EDEC en banc upon motion for reconsideration? provision applies only when the C65EDEC acts in the exercise of its ad!udicatory or *uasi-!udicial functions and not when it merely exercises purely administrative functions. -t is only in the exercise of its ad!udicatory or *uasi-!udicial powers that the C65EDEC is mandated to hear and decide cases first by Givision and then, upon motion for reconsideration, by the C65EDEC en banc. This is when it is !urisdictional. The C65EDEC exercises direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government re*uired by law to perform duties relative to the conduct of elections. -ts power of direct supervision and control includes the power to review, modify or set aside any act of such national and local officials. -t exercises immediate supervision and control over the members of the boards of election inspectors and canvassers. -ts statutory power of supervision and control includes the power to revise, reverse or set aside the action of the boards, as well as to do what the boards should have done, even if *uestions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to initiate motu proprio or by itself such steps or actions as may be re*uired pursuant to law. !aBatin vs Co"elec Petitioner has been proclaimed winner of the Congressional elections in the first district of Pampanga, has ta<en his oath of office as such, and assumed his duties as Congressman. Hor this Court to ta<e cognizance of the electoral protest against him would be to usurp the functions of the ouse Electoral Tribunal. The alleged invalidity of the proclamation 0which had been previously ordered by the C65EDEC itself2 despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound !udgment of the Electoral Tribunal. !aBatin vs G1 T The Constitution vests e6clusive ?urisdiction over all contests relating to the election, returns and *ualifications of the Me"bers o$ the Senate and the Gouse o$ 1epresentatives in the respective lectoral Tribunals N,rt. .-, /ec. #9O. The exclusive original !urisdiction of the C65EDEC is limited by constitutional fiat to election contests pertaining to elective regional,
3a5on5 3a,ani vs Co"elec >ive them the opportunity to be elected and to represent the specific concerns of their constituencies? and simply to give them a direct voice in Congress and in the larger affairs of the /tate. c.< 1e5ulation o$ public utilities and "edia o$ in$or"ation 7%rt 8' C' Sec /; Sec 89 superviseJ regulate franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges or concessions granted by the government or any subdivision, agency, or instrumentality thereof N4C vs Co"elec The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the en!oyment or utilization of the franchises or permits for the operation of media of communication and information. The fundamental purpose of such =supervision or regulation= has been spelled out in the Constitution as the ensuring of =e*ual opportunity, time, and space, and the right to reply,= as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with =public information campaigns and forums among candidates.= o Dimited in the duration of its applicability and enforceability o Dimited in the scope of application o Exempt from prohibition the purchase or donation to the Comelec The li"itation bears a clear and reasonable connection with constitutional ob?ective SES vs Co"elec ,ccording to the Court, /ection 4.F was invalid because of three reasons& o 0#2 it imposed a prior restraint on the freedom of expression, o 0+2 it was a direct and total suppression of a category of expression even though such suppression was only for a limited period, and o 012 the governmental interest sought to be promoted could be achieved by means other than the suppression of freedom of expression. c.8. 1ule-"aAin5 7%rt 8' %' Sec :9 commission en banc may promulgate own rules concernin5 pleadin5s and practice before it or before any of its offices such rules shall not diminish, increase or modify substantive rights %ruelo vs C% Constitutionally spea<ing, the COM ! C can not adopt a rule prohibitin5 the $ilin5 o$ certain pleadin5s in the re5ular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested on the /upreme Court 0Constitution, ,rt. .---, /ec. 4 N4O2.

provincial and city offices and its appellate !urisdiction to those involving municipal and barangay offices N,rt. -A-C, /ec. +0+2O. The power of the :ET, as the sole !udge of all contests relating to the election, returns and *ualifications of the 5embers of the ouse of :epresentatives, to promulgate rules and regulations relative to matters within its !urisdiction, including the period for filing election protests before it, is beyond dispute. -ts rule-ma<ing power necessarily flows from the general power granted it by the Constitution. Each electoral tribunal o B members 1 !ustice of /C to be designated by chief !ustice $ members of the senateJ : chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the partylist system represented therein Chairman will be the senior !ustice in the electoral tribunal so long as the Constitution grants the :ET the power to be the sole !udge of all contests relating to the election, returns and *ualifications of 5embers of the ouse of :epresentatives, an, $inal action taAen b, the G1 T on a "atter within its ?urisdiction shall' as a rule' not be reviewed b, this Court. ,s stated earlier, the power granted to the Electoral Tribunal is full, clear and complete and =excludes the exercise of any authority on the part of this Court that would in any wise restrict or curtail it or even affect the same. the Court declared that =NtOhe !udgment rendered by the ElectoralO Commission in the exercise of such an ac<nowledged power is beyond !udicial interference, except, in any event, upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law.= ;nder the #BC9 Constitution, the scope of the CourtIs authority is made explicit. The power granted to the Court includes the duty =to determine whether or not there has been a grave abuse of discretion amounting to lac< or excess of !urisdiction on the part of any branch or instrumentality of the >overnment= N,rt. .---, /ec. #O. Thus, only where such grave abuse of discretion is clearly shown shall the Court interfere with the :ETIs !udgment. -n the instant case, there is no occasion for the exercise of the CourtIs corrective power, since no grave abuse of discretion that would amount to lac< or excess of !urisdiction and would warrant the issuance of the writs prayed for has been clearly shown. 1oces vs G1 T The :ET is the sole !udge of all contests relating to the election, returns, and *ualifications of the members of the ouse of :epresentatives 1C and has the power to promulgate procedural rules to govern proceedings brought before it. 1B This exclusive !urisdiction includes the power to determine whether it has the authority to hear and determine the controversy presented, and the right to decide whether that state of facts exists which confers !urisdiction, as well as all other matters which arise in the case legitimately before it. F8 ,ccordingly, it has the power to hear and determine, or in*uire into, the *uestion of its own !urisdiction, both as to parties and as to sub!ect matter, and to decide all *uestions, whether of law or fact, the decision of which is necessary to determine the *uestion of !urisdiction. F# 6ne of the three essential elements of !urisdiction is that proper parties must be present. F+ Conse*uently, the :ET merely exercised its exclusive !urisdiction when it ruled that 5rs. ,ng Ping was a proper party to contest the election of :oces. There is no dispute that to support his motion to dismiss, :oces offered as evidence the C65EDEC resolutions denying due course to 5rs. ,ng PingIs C6C. -n doing so, :oces submitted to the :ET the admissibility and validity of these resolutions and the :ET cannot be faulted in reviewing the said resolutions especially $or the purpose o$ deter"inin5 whether 1oces was able to dischar5e his burden o$ provin5 that Mrs. %n5 4in5 is not the proper part, to assail his election. -n passing upon the C65EDEC resolutions especially for that purpose, it cannot be said that the :ET usurped the !urisdiction of the C65EDEC. (e hold that the :ET did not abuse its discretion in holding that 5rs. ,ng Ping is a proper party to contest the election of :oces. The C65EDEC en banc usurped the !urisdiction of the C65EDEC Hirst Givision when it issued :esolution 'o. $C+1 on 5ay C, +88F which ordered the deletion of 5r. ,ng PingIs name from the Certified Dist of Candidates and denied the spouses ,ng PingIs motions to withdraw and substitute despite the fact that& 0#2 the reglementary period of 5r. ,ng Ping to appeal had not yet expired? and 0+2 5r. ,ng Ping had filed a motion for reconsideration of the preceding order on 5ay #8, +88F within the five-day reglementary period. Nowhere is it provided in the law that the COM ! C en banc has the power to assu"e ?urisdiction "otu proprio over a petition to den, due course pendin5 be$ore a division o$ the Co""ission. That "otions $or reconsideration o$ the COM ! C division@s decisions' resolutions' orders or rulin5s "ust $irst be $iled in the Divisions be$ore the Co""ission en banc "a, taAe co5niBance thereo$.
-t is true that generally, the method of assailing a !udgment or order of the C65EDEC is via petition for certiorari. MendoBa vs Co"elec issue with the C65EDECIs appreciation of ballots even when the ballots and other election materials were no longer in its official custody and were outside its premises, authority and control -n this case, the C65EDEC has transferred possession, custody and !urisdiction over the ballots to the /ET, a tribunal separate and independent from the C65EDEC and over which the C65EDEC exercises no authority or !urisdiction. Hor the C65EDEC to still conduct proceedings on property, materials and evidence no longer in its custody violates the principle of separation of powers. C65EDEC under our governmental structure is a constitutional administrative agency and its powers are essentially executive in nature 0i.e., to enforce and administer election laws2, ## *uasi-!udicial 0to exercise original !urisdiction over election contests of regional, provincial and city officials and appellate !urisdiction over election contests of other lower ran<ing officials2, and *uasi-legislative 0rulema<ing on all *uestions affecting elections and the promulgation of its rules of procedure2. The C65EDECIs ad!udicative function is *uasi-!udicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its !urisdiction, to hold hearings and exercise discretion of a !udicial nature? #+ it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the basis of all these decides on the merits of the case and renders !udgment. #1 Gespite the exercise of discretion that is essentially !udicial in character, particularly with respect to election contests, C65EDEC is not a tribunal within the !udicial branch of government and is not a court exercising !udicial power in the constitutional sense? #F hence, its ad!udicative function, exercised as it is in the course of administration and enforcement, is *uasi-!udicial (e state at the outset that the C65EDEC did not lose !urisdiction over the provincial election contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and other election materials to the /ET. The Constitution conferred upon the C65EDEC !urisdiction over election protests involving provincial officials. The C65EDEC in this case has lawfully ac*uired !urisdiction over the sub!ect matter, i.e., the provincial election contest, as well as over the parties. ,fter its !urisdiction attached, this !urisdiction cannot be ousted by subse*uent events such as the temporary transfer of evidence and material records of the proceedings to another tribunal exercising its own !urisdiction over another election contest pursuant to the Constitution. This is the rule of adherence of !urisdiction. Thus, the !urisdiction of the C65EDEC over provincial election contest exists side by side with the !urisdiction of the /enate Electoral Tribunal, with each tribunal being supreme in their respective areas of concern 0the /enate election contests for the /ET, and the regional, provincial and city election contests for the C65EDEC2, and with neither one being higher than the other in terms of precedence so that the !urisdiction of one must yield to the other. -ncidentally, the C65EDEC authority to promulgate the above rule en!oys constitutional moorings? in the grant to the C65EDEC of its !urisdiction, the Constitution provided it with the accompanying authority to promulgate its own rules concerning pleadings and practice before it or before any of its offices, provided that these rules shall not diminish, increase or modify substantive rights. +C The Constitution additionally re*uires that the rules of procedure that the C65EDEC will promulgate must expedite the disposition of election cases, including pre-proclamation controversies. +B This constitutional standard is authority, no less, that the

C65EDEC can cite in defending its action. Hor ultimately, the appreciation of the "ulacan ballots that the C65EDEC undertoo< side by side with the /ETIs own revision of ballots, constitutes an exercise of discretion made under the authority of the above-cited C65EDEC rule of procedure. c.11. 1eview o$ decisions 7%rt 8' C' Sec 2(2)9; %rt 8' %' Sec 09 appellate !urisdiction over all contests involving elective municipal officials decided by :TC or involving elective barangay officials decided by 5TCs decisions, final orders or rulings of the commission on election contests involving elective municipal and barangay offices shall be final, executory and not appealable shall decide by a ma!ority vote of all its members any case or matter brought before it within $8 days from the date of its submission for decision or resolution deemed submitted for decision or resolution upon fling of the last pleading, brief or memorandum any decision or ruling may be brought to the /C on certiorari wJin 18 days from receipt of a copy thereof 2lores vs Co"elec the decision rendered by the 5unicipal Circuit Trial Court of Tayum, ,bra, should have been appealed directly to the Commission on Elections and not to the :egional Trial Court of ,bra. the provision of ,rticle -A-C, /ection +0+2 of the Constitution that =decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable= applies only to *uestions of fact and not of law. That provision was not intended to divest the /upreme Court of its authority to resolve *uestions of law as inherent in the !udicial power conferred upon it by the Constitution. unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the /upreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. Harces vs C% This provision is inapplicable as there was no case or matter filed before the C65EDEC. 6n the contrary, it was the C65EDECIs resolution that triggered this controversy. The =case= or =matter= referred to by the constitution must be something within the !urisdiction of the C65EDEC, i.e., "ust pertain to an election dispute. the settled rule is that =decision, rulings, order= of the C65EDEC that may be brought to the /upreme Court on certiorari under /ec. 9, ,rt. -A-, are those relate to the C65EDECIs e6ercise o$ its ad?udicator, or .uasi-?udicial powers involving =elective regional, provincial and city officials=. -n this case, what is being assailed is the C65EDECIs choice of an appointee to occupy the >utalac Post which is an administrative duty done for the operational set-up of an agency. The controversy involves an appointive, not an elective, official. ardly can this matter call for the certiorari !urisdiction of the /upreme Court. To rule otherwise surely burden the Court with trivial administrative *uestions that are best ventilated before the :TC, a court which the law vests with the power to exercise original !urisdiction over =all cases not within the exclusive !urisdiction of any court, tribunal, person or body exercising !udicial or *uasi-!udicial functions. D. 2iscal %utono", 0,rt B, ,, /ec 42 en!oy fiscal autonomy approved annual appropriations shall be automatically and regularly released I*. 2unda"ental 4rinciple %. 4eopleDs choice as $unda"ental consideration; 2nd placer rule Heroni"o vs 1a"os it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not ac*uired the ma!ority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the ma!ority of which have positively declared through their ballots that they do not choose him. !abo vs Co"elec he obtained only the second highest number of votes in the election, he was obviously not the choice of the people The fact that the candidate who obtained the highest number of votes is later declared to be dis*ualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, dis*ualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. owever, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, *ualified, or eligible, they should not be treated as stray, void or meaningless. Topacio v. 4aredes (2+ 4hil. 2+<) =,gain, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the election is *uite different from that produced by declaring a person ineligible to hold such an office. . . . -f it be found that the successful candidate 0according to the board of canvassers2 obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. -n the other case, there is not, strictly spea<ing, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole *uestion is the eligibility of the one receiving a plurality of the legally cast ballots.= Do"ino vs Oca"po Thus, the votes cast for Gomino were presumed to have been cast in the sincere belief that he was a *ualified candidate, without any intention to misapply their franchise. Thus, said votes cannot be treated as stray, void, or meaningless. -t is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is dis*ualified. -n every election, the peopleIs choice is the paramount consideration and their expressed will must, at all times, be given effect. (hen the ma!ority spea<s and elects into office a candidate by giving the highest number of votes cast in the election for that office, no one can be declared elected in his place -t would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not ac*uired the ma!ority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the ma!ority of which have positively declared through their ballots that they do not choose him. To simplistically assume that the second placer would have received the other votes would be to substitute our !udgment for the mind of the voters. e could not be considered the first among *ualified candidates because in a field which excludes the *ualified candidate, the conditions would have substantially changed. /ound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a ma!ority or plurality of the legal votes cast in the election. The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred from the dis*ualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who have obtained a plurality of votes and does not entitle the candidate receiving the next highest number of votes to be declared elected. -n such case, the electors have failed to ma<e a choice and the election is a nullity. To allow the defeated and repudiated candidate to ta<e over the elective position despite his re!ection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the peopleIs right to elect officials of their choice. if the electorate, fully aware in fact and in law of a candidateIs dis*ualification so as to bring such awareness within the realm of notoriety, would nevertheless cast their votes in favor of the ineligible candidate, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected,
Oca"po vs Crespo

there must be final !udgment be$ore the election for the votes of a dis*ualified candidate to be considered KstrayL hence, when a candidate has not yet been dis*ualified by final !udgment during the election day and was voted for, the votes cast in his favor cannot be declared stray to do so would amount to disenfranchising the electorate in whom sovereignty resides rationale& the people voted for him bona fide without any intention to misapply their franchise and in the honest belief that the candidate was then *ualified to be the person to whom they would entrust the exercise of the powers of the government Subse.uent dis.uali$ication o$ a candidate who obtained the hi5hest nu"ber o$ votes does not entitle the candidate who 5arnered the second hi5hest nu"ber o$ votes to be declared the winner -n >eronimo vs. :amos, #C if the winning candidate is not *ualified and cannot *ualify for the office to which he was elected, a permanent vacancy is thus created. The second placer is !ust that, a second placer R he lost in the elections, he was repudiated by either the ma!ority or plurality of voters. e could not be proclaimed winner as he could not be considered the first among the *ualified candidates. To rule otherwise is to misconstrue the nature of the democratic electoral process and the sociological and psychological underpinnings behind votersI preferences. 4art II !%ES ON 4I3!IC O22IC 1S I. %. INT1ODICTO1J CONC 4TS 4I3!IC O22IC %ND 4I3!IC O22IC 1S public officer S one who holds a public office %rt 11' 18<0 Constitution Sec 2b' 1% +F18 4ublic o$$icer includes elective and appointive officials and employees, per"anent or te"porar, whether in the classified, unclassified or exempt service N now career and non-carrierO receiving compensation, 5overn"ent even nominal $ro" the Elements of a public officer #. 5ust be treated by law or authority of law +. -t must possess a delegation of a portion of the sovereign powers of the government to be exercised for the benefit of the public The powers conferred and the duties to be discharged must be defined, directly, or impliedly by the legislature or through legislative authority The duties must be performed independently and without control of a superior power other than the law unless they be those of an inferior or subordinate office created or authorized by the legislature and placed by it under the general control of superior office or body -t must have some permanence and continuity and be only temporary or occasional 2ernandeB vs Sto To"as public o$$ice S the ri5ht' authorit, or dut, - created and con$erred b, law - by which for a 5iven period, either $i6ed by law or enduring at the pleasure of the creating power - an individual is invested with so"e portion o$ the soverei5n $unctions of government - to be exercised by him for the bene$it o$ the public 4ublic service re.uires the ut"ost inte5rit, and strictest discipline. Thus' a public servant "ust e6hibit at all ti"es the hi5hest sense o$ honest, and inte5rit, not onl, in the per$or"ance o$ his o$$icial duties but in his personal and private dealin5s with other people. 'o less than the Constitution sanctifies the principle that a public o$$ice is a public trust , and en?oins all public o$$icers and e"plo,ees to serve with the hi5hest de5ree o$ responsibilit,' inte5rit,' lo,alt,' and e$$icienc,. -n addition, the Code of Conduct and Ethical /tandards for Public 6fficials and Employees provide that every public servant shall at all times uphold public interest over his or her personal interest. "y his acts and misdeeds, respondent has undermined the publicIs faith in our courts and, ultimately, in the administration of !ustice. The same ma<e him unfit as a court employee. is employment must therefore be terminated at once Court personnel must adhere to the high ethical standards of public service in order to preserve the CourtIs good name and standing. Time and again, this Court has emphasized that the conduct re*uired of court personnel, from the presiding !udge to the lowliest cler<, must always be beyond reproach and must be circumscribed with the heavy burden of responsibility as to let them be free from any suspicion that may taint the !udiciary.
%rt. 2F+' 14C 4ublic o$$icer is any person who by direct provision of law, popular election or appointment by competent authority shall ta<e part in the performance of public functions in the government of the Phils. or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official of any ran< or class
1.
F.
4.
Characteristics #. -t is not a party and cannot be sub!ect of a contract Concerned CitiBens o$ !aoa5 Cit, vs %rBa5a being notoriously undesirable , court employee being a public servant "ust e6hibit the hi5hest sense o$ honest, and inte5rit, not only in the performance of his duties but also in his personal and private dealin5s with other people to preserve the court@s na"e and standin5. Therefore, it becomes imperative and sacred duty of each and everyone in the court to maintain its good name and standing as a true temple of !ustice.= 0Paredes vs. Padua, +++ /C:, C#2. The conduct and behavior o$ ever,one connected with the o$$ice charged with the dispensation of !ustice from the presidin5 ?ud5e to the lowliest clerA should be circumscribed with the heavy burden of responsibility. +. 1. -t is not a hereditable possession -t is personal to the holder (e consider that :esolution 'o. BF-19#8 has not abolished any public office as that term is used in the law of public officers. -t is essential to note that none of the = chan5es in or5aniBation= introduced by :esolution 'o. BF-19#8 carried with it or necessarily involved the ter"ination o$ the relationship o$ public e"plo,"ent between the Co""ission and an, o$ its o$$icers and e"plo,ees . (e find it very difficult to suppose that the #BC9 :evised ,dministrative Code having mentioned fourteen 0#F2 different =6ffices= of the Civil /ervice Commission, meant to freeze those 6ffices and to cast in concrete, as it were, the internal

or5aniBation o$ the Co""ission until it might please Congress to change such internal organization regardless of the ever changing needs of the Civil /ervice as a whole. To the contrary, the legislative authority had expressly authorized the Commission to carry out =changes in the organization,= =as the need Nfor such changesO arises.= ,ssuming, for purposes of argument merely, that legislative authority was necessary to carry out the <inds of changes contemplated in :esolution 'o. BF-19#8 0and the Court is not saying that such authority is necessary2, such legislative authority was validly delegated to the Commission by /ection #9 earlier *uoted. The legislative standards to be observed and respected in the exercise of such delegated authority are set out not only in /ection #9 itself 0i.e., =as the need arises=2, but also in the Geclaration of Policies found in "oo< ., Title -, /ubtitle ,, /ection # of the #BC9 :evised ,dministrative Code which re*uired the Civil /ervice Commission %ppoint"ents to the sta$$ o$ the Co""ission are not appoint"ents to a speci$ied public o$$ice but rather appoint"ents to particular positions or ranAs.

! M NTS: #. created by law or by authorit, o$ law +. possess a dele5ation o$ a portion o$ the soverei5n powers o$ 5overn"ent, to be exercised for the bene$it o$ the public 1. powers conferred and duties imposed must be de$ined' directl, or i"pliedl,, by the le5islature or b, le5islative authorit, F. duties "ust be per$or"ed independentl, and without the control o$ a superior power other than the law ;nless they be those of an inferior or subordinate office created or authorized by the legislature ,nd by it placed under the general control of a superior office or body 4. must have per"anence or continuit, Neither is the $act that the NCC was characteriBed b, .O. No. 12< as an Kad-hoc bod,K "aAe said co""ission less o$ a public o$$ice. The term o$$ice, it is said, embraces the idea of tenure and duration, and certainly a position which is "erel, te"porar, and local cannot ordinaril, be considered an o$$ice. =But,= says Chief @ustice 5arshall, =if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, R it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer.= ,t the same time, however, this ele"ent o$ continuance can not be considered as indispensable' $or' i$ the other ele"ents are present =it can ma<e no difference,= says Pearson, C.@., =whether there be but one act or a series of acts to be done, R whether the office expires as soon as the one act is done, or is to be held for years or during good behavior.= 6ur conclusion that petitioner is a public officer finds support in -n :e Corliss. +$ There the /upreme Court of :hode -sland ruled that the office of Commissioner of the ;nited /tates Centennial Commission is an =office of trust= as to dis*ualify its holder as elector of the ;nited /tates President and .icePresident. 0;nder ,rticle -- of the ;nited /tates Constitution, a person holding an office of trust or profit under the ;nited /tates is dis*ualified from being appointed an elector.2 To illustrate, the use of the term =includes= in /ection + 0b2 indicates that the definition is not restrictive. +C The %ntiHra$t and Corrupt 4ractices %ct is ?ust one o$ several laws that de$ine Kpublic o$$icers.K
Creation
#. constitution 0office of the president2 +. valid statutor, enact"ents 0 office of the insurance commissioner2 1. b, authorit, o$ law 0david commission2
!aurel vs Desierto salar, is not a necessar, ele"ent o$ public o$$ice the ele"ent o$ continuit, cannot be considered as indispensable $or public o$$ice 5echem describes the delegation to the individual o$ so"e o$ the soverei5n $unctions o$ 5overn"ent as =Nt9he "ost i"portant characteristic= in deter"inin5 whether a position is a public o$$ice or not the "ost i"portant characteristic which distin5uishes an o$$ice $ro" an e"plo,"ent is that the creation and con$errin5 o$ an o$$ice involves dele5ation to the individual o$ so"e o$ the soverei5n $unctions o$ 5overn"ent to be e6ercised b, hi" $or the bene$it o$ the public and that the so"e portion o$ the soverei5nt, o$ the countr, either le5islative' e6ecutive or ?udicial, attaches $or the ti"e bein5' to be e6ercised $or the public bene$it thus, unless the powers so conferred are of this nature, the individual is not a public officer The characteristics of a public office, according to 5echem ' include the dele5ation o$ soverei5n $unctions' its creation b, law and not b, contract' an oath' salar,' continuance o$ the position' scope o$ duties' and the desi5nation o$ the position as an o$$ice. 'CC performs executive functions? created by an Executive order; Clearl,' the NCC per$or"s soverei5n $unctions. It is' there$ore' a public o$$ice' and petitioner' as its Chair' is a public o$$icer. That petitioner alle5edl, did not receive an, co"pensation durin5 his tenure is o$ little conse.uence . , salar, is a usual but not a necessar, criterion for determining the nature of the position. -t is not conclusive. The salary is a "ere incident and $or"s no part o$ the o$$ice . (here a salary or fees is annexed, the office is provided for it is a na<ed or honorary office, and is supposed to be accepted merely for the public good. ence, the office of petitioner as 'CC Chair may be characterized as an honorar, o$$ice, as opposed to a lucrative o$$ice or an office of profit, i.e., one to which salary, compensation or fees are attached. +F "ut it is a public office, nonetheless.
Se5ovia vs Noel Though there is no vested ri5ht to an o$$ice , which may not be disturbed by legislation, yet the incumbent has, in a sense' a ri5ht to his o$$ice. I$ that ri5ht is to be taAen awa, b, statute' the ter"s should be clear in which the purpose is stated. Public office cannot be re5arded as the propert, of the incumbent. , public office is not a contract.
Corne?o vs Habriel 6rdinarily, a public official should not be removed from office without notice, charges, a trial, and an opportunity for explanation. -TC& we are dealing with an administrative proceeding and not with a !udicial proceeding Gue process of law is not necessarily !udicial process? much of the process by means of which the >overnment is carried on, and the order of society maintained, is purely executive or administrative, which is as much due process of law, as is !udicial process. (hile a day in court is a matter of right in !udicial proceedings, in ad"inistrative proceedin5s it is otherwise since the, rest upon di$$erent principles. In certain proceedin5s o$ an ad"inistrative character' the ri5ht to a notice and hearin5 are not essential to due process o$ law. , public o$$ice is not propert, within the sense of the constitutional guaranties of due process of law but is a public trust or a5enc,. 2or this petition to co"e under the due process o$ law prohibition' it would be necessar, to consider an o$$ice as propert,. public offices are "ere a5encies or trusts' and not propert, Power to suspend temporarily may be exercised without notice to the person suspended. 'otice and hearing are not prere*uisites to the suspension of a public officer under a statute which does not provide for such notice and hearing. The basic idea of government in the Philippine -slands, as in the ;nited /tates, is that of a popular representative government, the officers being mere agents and not rulers of
10

the people, one where no man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people whom he represents. =The suspension of an officer pending his trial for misconduct, so as to tie his hands for the time being, seems to be universally accepted as fair, and often necessary. . . . Notice and hearin5 are not prere.uisites to suspension unless re.uired b, statute and therefore suspension without such notice does not deprive the officer of property without due process of law. 'or is a suspension wanting in due process of law or a denial of the e*ual protection of the laws because the evidence against the officer is not produced and he is not given an opportunity to confront his accusers and crossexamine the witnesses.= =The safety of the state, which is the highest law, imperatively re*uires the suspension, pending his trial, of a public officer, R especially a custodian of public funds, R charged with malfeasance or nonfeasance in office. /uspension does not remove the officer, but merely prevents him, for the time being, from performing the functions of his office? and from the very necessities of the case must precede a trial or hearing. /uch temporary suspension without previous hearing is fully in accordance with the analogies of the law. -t is a constitutional principle that no person shall be deprived of his liberty or property except by due process of law, which includes notice and a hearing, yet it was never claimed that in criminal procedure a person could not be arrested and deprived of his liberty until a trial could reasonably be had, or that in civil actions ex parte and temporary in!unctions might not be issued and retained in proper cases, until a trial could be had, and the rights of the parties determined. (e have no doubt, therefore, of the authority of the legislature to vest the governor with power to temporarily suspend a county treasurer pending the investigation of the charges against him, of official misconduct.= IThe duty of suspension was imposed upon the >overnor from the highest motives of public policy to prevent the danger to the public interests which might arise from leaving such great powers and responsibilities in the hands of men legally dis*ualified. To leave them in full charge of their office until the next biennial session of the legislature, or pending litigation which might be continued for years, would destroy the very ob!ect of the law. NdO wJo appointment or election but under such circumstances of reputation or ac*uiescence as were calculated to induce people wJo in!ury to submit or invo<e his action supposing him to be an officer officer not eli5ible want o$ power in election or appointin5 bod, one acting under color of right and with apparent authority but who is not legally a corporate officer the corporation is bound b, all acts and contracts o$ an o$$icer de $acto in the sa"e wa, as it is with those i$ de ?ure o$$icer having not $urnished a re.uired bond or having taAen o$$ice under a statute later declared unconstitutional
NdO one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular may have reputation of being an officer he assumes to be but is not a good office in the point of law appointment is valid on its face one who continues in the exercise of the functions and duties of the office without legal authority or after his term or title has ended one who performs the functions of the officer in good faith and under color of right to the position involved polic, and purpose o protection o$ the public and individuals inso$ar as the, beco"e involved in the o$$icial acts o$ person dischar5in5 the duties o$ an o$$ice without bein5 law$ul o$$icers
Sa"pa,an vs DaBa -TC, congressman was a greencard holder and did not renounce his status as a permanent resident of ;/ ,ppropriate remedy was to cancel C6C or *uo warranto "ut term already expired ,s de facto officers, he cannot be "ade to rei"burse the $unds disbursed during his term of office because his acts were valid as those o$ a de ?ure o$$icer. ,s de facto officer, he is entitled to e"olu"ents $or actual services rendered.
%be?a vs Tanada (e also find as erroneous the substitution of the deceased :osauro :adovanIs widow, Ediltrudes :adovan, on the ground that private respondent had a counter-claim for damages. =4ublic o$$ice is personal to the incu"bent and is not a propert, which passes to his heirs= 0/antos vs. /ecretary of Dabor, ++ /C:, CFC N#B$CO? Ge la .ictoria vs. Comelec, #BB /C:, 4$# N#BB#O2. The heirs "a, no lon5er prosecute the deceased protestee@s counter-clai" $or da"a5es a5ainst the protestant $or that was e6tin5uished when death ter"inated his ri5ht to occup, the contested o$$ice 0Gela .ictoria, supra2.
3.
LINDS O2 4I3!IC O22IC 1S D >I1
3, ri5ht; b, ri5ht in law validly appointed an officer who exercises the duties of an office for which the holder has fulfilled all the *ualifications D 2%CTO
"D,CMEs ,n officer who e6ercises the duties o$ an o$$ice under the color o$ an appoint"ent or election but who has $ailed to .uali$, $or office for any one of various reasons as by being under the re*uired age, having $ailed to taAe oath
Heneral Mana5er vs Monserate -n this respect, while petitioner ,ninoIs appoint"ent to the contested position is void, as earlier discussed, he is nonetheless considered a de $acto o$$icer during the period of his incumbency. , de facto officer is one who is in possession o$ an o$$ice and who openl, e6ercises its $unctions under color o$ an appoint"ent or election' even thou5h such appoint"ent or election "a, be irre5ular. -n 5onroy vs. Court of ,ppeals, this Court ruled that a ri5ht$ul incu"bent o$ a public o$$ice "a, recover $ro" a de $acto o$$icer the salar, received b, the latter durin5 the ti"e o$ his wron5$ul tenure' even thou5h he (the de $acto o$$icer) occupied the o$$ice in 5ood $aith and under color o$ title . % de $acto o$$icer' not havin5 a 5ood title' taAes the salaries at his risA and "ust' there$ore' account to the de ?ure o$$icer $or whatever salar, he received durin5 the period o$ his wron5$ul tenure. -n the later case of Civil Diberties ;nion vs. Executive /ecretary, this Court allowed a de $acto o$$icer to receive e"olu"ents $or actual services rendered but only when there is no de jure officer, thus& =. . . in cases where there is no de ?ure o$$icer' a de $acto o$$icer who' in 5ood $aith' has had possession o$ the o$$ice and has dischar5ed the duties pertainin5 thereto' is le5all, entitled to the e"olu"ents o$ the o$$ice' and "a, in appropriate action recover the salar,' $ees and other co"pensations attached to the o$$ice.K
11

In $ine' the rule is that where there is a de ?ure o$$icer' a de $acto o$$icer' durin5 his wron5$ul incu"benc,' is not entitled to the e"olu"ents attached to the o$$ice' even i$ he occupied the o$$ice in 5ood $aith . ITC& This rule, however, cannot be applied s*uarely on the present case in view of its peculiar circumstances. :espondent had assumed under protest the position of ,dministrative 6fficer sometime in the latter part of #BCC, which position she currently holds. /ince then, she has been receiving the emoluments, salary and other compensation attached to such office. (hile her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office 0Givision 5anager2, she cannot recover full bac<wages for the period when she was unlawfully deprived thereof. /he is entitled only to bac<pay differentials for the period starting from her assumption as ,dministrative 6fficer up to the time of her actual reinstatement to her rightful position as Givision 5anager. /uch bac<pay differentials pertain to the difference between the salary rates for the positions of 5anager -- and ,dministrative 6fficer. The same must be paid by petitioner ,nino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on 'ovember 18, #BB9. 4I3!IC O22IC 1S: !IHI3I!ITJ %ND able to read and write Hilipino or any other local language or dialect.= -n addition, =candidates for the position of governor . . . must be at least twenty-three 0+12 years of age on election day.= Hrom the above, it will be noted that the law does not speci$, an, particular date or ti"e when the candidate "ust possess citiBenship, unli<e that for residence 0which must consist of at least one yearIs residency immediately preceding the day of election2 and age 0at least twenty three years of age on election day2. 4hilippine citiBenship is an indispensable re.uire"ent for holding an elective public office, and the purpose of the citizenship *ualification is none other than to ensure that no alien' i.e.' no person owin5 alle5iance to another nation' shall 5overn our people and our countr, or a unit o$ territor, thereo$. 'ow, an official be5ins to 5overn or to dischar5e his $unctions onl, upon his procla"ation and on the da, the law "andates his ter" o$ o$$ice to be5in. ITC: Since 2rivaldo re-assu"ed his citiBenship on >une +F' 188= N the ver, da, the ter" o$ o$$ice o$ 5overnor (and other elective o$$icials) be5an N he was there$ore alread, .uali$ied to be proclai"ed' to hold such o$$ice and to dischar5e the $unctions and responsibilities thereo$ as o$ said date. -n short, at that time, he was already *ualified to govern his native /orsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on *ualifications consistent with the purpose for which such law was enacted. /o too, even from a literal 0as distinguished from liberal2 construction, it should be noted that /ection 1B of the D ocal Hovern"ent Code speaAs o$ K#uali$icationsK o$ K ! CTI* O22ICI%!SK' not o$ candidates. (hy then should such *ualification be re*uired at the time of election or at the time of the filing of the certificates of candidacies, as Dee insists) !iterall,' such .uali$ications R unless otherwise expressly conditioned, as in the case of age and residence R should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term in this case, on @une 18, #BB4. Paraphrasing this CourtIs ruling in .as*uez vs. >iap and Di /eng >iap 7 /ons, 11 if the purpose of the citizenship re*uirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship *ualification as applying to the time of proclamation of the elected official and at the start of his term. "ut perhaps the more difficult ob!ection was the one raised during the oral argument 1F to the effect that the citizenship *ualification should be possessed at the time the candidate 0or for that matter the elected official2 registered as a voter. ,fter all, /ection 1B, apart from re*uiring the official to be a citizen, also specifies as another item of *ualification, that he be a =registered voter=. ,nd, under the law 14 a =voter= must be a citizen of the Philippines. /o therefore, Hrivaldo could not have been a voter R much less a validly registered one R if he was not a citizen at the time of such registration. The answer to this problem again lies in discerning the purpose of the re*uirement. I$ the law intended the citiBenship .uali$ication to be possessed prior to election consistent with the re.uire"ent o$ bein5 a re5istered voter' then it would not have "ade citiBenship a S 4%1%T .uali$ication. The law abhors a redundancy. It there$ore stands to reason that the law intended CITIO NSGI4 to be a .uali$ication distinct $ro" bein5 a *OT 1' even i$ bein5 a voter presu"es bein5 a citiBen $irst. -t also stands to reason that the voter re*uirement was included as another *ualification 0aside from =citizenship=2, not to reiterate the need for nationality but to re*uire that the official be registered as a voter -' T E ,:E, 6: TE::-T6:T he see<s to govern, i.e., the law states& =a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected.= -t should be emphasized that the Docal >overnment Code re*uires an elective official to be a registered voter. -t does not re*uire him to vote actually. Gence' re5istration N not the actual votin5 N is the core o$ this K.uali$icationK. In other words' the law@s purpose in this second re.uire"ent is to ensure that the prospective o$$icial is actuall, re5istered in the area he seeAs to 5overn N and not an,where else. "efore this Court, Hrivaldo has repeatedly emphasized R and Dee has not disputed R that he =was and is a registered voter
C. EGO M%J 3 #I%!I2IC%TIONS %ualification&
#. may refer to endow"ents' .ualities or attributes which ma<e an individual eligible for public office 0e.g. citizenship2 +. may refer to the act o$ enterin5 into the per$or"ance of the functions of public office 0e.g. ta<ing the oath of office2 C.1. EGO M%J 41 SC1I3 #I%!I2IC%TIONS (hen the *ualifications are prescribed by the Constitution, they are generally exclusive, except where the constitution itself provides otherwise :elative to public offices created by statute, Con5ress has virtually plenary powers to prescribe *ualifications, provided that o the *ualifications are 5er"ane to the ob?ectiveMs for which the public office was created ,'G the *ualifications are not too speci$ic as to $it a particular' identi$iable person because that would deprive the appointing authority of discretion in the selection of the appointee
C.2. TIM O2 4OSS SSION O2 #I%I2IC%TIONS 5ust possess the *ualifications ,PP6-'T5E'T or EDECT-6' ,T T E T-5E 6H
,'G C6'T-';6;/DT for as long as the official relationship continues
2rivaldo vs Co"elec D>C does not specify the date when the candidate must possess Hilipino citizenship Philippine citizenship is re*uired in order to ensure that no alien shall govern our people ,n official "E>-'/ T6 >6.E:' 6'DT ;P6' -/ P:6CD,5,T-6' ,'G 6' T E G,T T ,T -/ TE:5 "E>-'/ D>C spea<s of *ualifications of elective officials and not of candidates Doss of any *ualifications during incumbency will be a ground for termination ;nder /ec. 1B of the Docal >overnment Code, =0a2n elective local official must be& a citizen of the Philippines? a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected? a resident therein for at least one 0#2 year immediately preceding the day of the election?
12

of /orsogon, and his registration as a voter has been sustained as valid by !udicial declaration . . . -n fact, he cast his vote in his precinct on 5ay C, #BB4.= another reason why the prime issue of citizenship should be rec<oned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy /ection +41 of the 6mnibus Election Code 1C gives any voter, presumably including the defeated candidate, the opportunity to *uestion the ED->-"-D-TT 0or the disloyalty2 of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbentIs ineligibility arising from failure to meet the *ualifications enumerated under /ec. 1B of the Docal >overnment Code. /uch remedy of %uo (arranto can be availed of =within ten days after proclamation= of the winning candidate. ence, it is only at such time that the issue of ineligibility may be ta<en cognizance of by the Commission. ,nd since, at the very moment of DeeIs proclamation 0C&18 p.m., @une 18, #BB42, @uan >. Hrivaldo was already and indubitably a citizen, having ta<en his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he un*uestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous =!udicially-declared= alienage. ence, at such time, he was no longer ineligible. 3ut to re"ove all doubts on this i"portant issue' we also hold that the repatriation o$ 2rivaldo 1 T1O%CT D to the date o$ the $ilin5 o$ his application on %u5ust 10' 188/. (curativeM re"edial in nature; when create new ri5hts) -ndeed, decisions declaring the ac*uisition or denial of citizenship cannot govern a personIs future status with finality. This is because a person may subse*uently reac*uire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. ence, in Dee vs. Commissioner of -mmigration, 4$ we held& =Everytime the citizenship of a person is material or indispensable in a !udicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res !udicata, hence it has to be threshed out again and again, as the occasion demands.= In su"' we rule that the citiBenship re.uire"ent in the !ocal Hovern"ent Code is to be possessed b, an elective o$$icial at the latest as o$ the ti"e he is proclai"ed and at the start o$ the ter" o$ o$$ice to which he has been elected o , resident of the Philippines for at least ten years immediately preceding such election
*ice president o /ame *ualifications and term of office and be elected with and in the same manner as the president 5ay be removed from office in the same manner as the president 5ay be appointed as a member of the cabinet and such appointment re*uires no confirmation
%rt 8' 3' C' Sec 1(1) Civil Service Co""ission o o o Chairman and + commissioners 'atural born citizens of the Philippines ,t least 14 years of age at the time of their appointment (ith proven capacity for public administration 5ust not have been candidates for any elective position in the elections immediately preceding their appointment ,ppointed by the president with the consent of the commission on appointments Term of 9 years wJo reappointment Chairman 9 years, a commissioner for 4 years and another for 1 years 'o member shall be appointedJ designated in a temporary or acting capacity
o o
o o
C.+. ISI%! #I%!I2IC%TIONS %rt. :' Sec 2 C : Senate o +F senators elected at large by *ualified voters of the Philippines as may be provided by law
COM ! C o o o Chairman and $ commissioners 'atural born citizens of the Philippines ,t least 14 years of age at the time of their appointment olders of a college degree 5ust not have been candidates for any elective position in the immediately preceding elections , ma!ority including the chairman shall be members of the Philippine bar who have been engaged in the practice of law for at least #8 years ,ppointed by the president with the consent of the commission on appointments
Gouse o$ 1epresentatives o o o o 'atural born citizen of the Philippines ,t least +4 years of age on the day of election ,ble to read and write Except the party list representatives, a registered voter in the district in which he shall be elected :esident thereof for a period of not less than one year immediately preceding the day of the election
o o
Sec 22' 3ooA *' .F. 282 %rt +' Sec = 'o law shall be made respecting an establishment of religion or prohibiting the free exercise thereof Hree exercise and en!oyment of religious profession and worship wJo discrimination or preference shall forever be allowed No reli5ious test shall be re.uired $or the e6ercise o$ civil or political ri5hts
%rt. 0' Sec 2'+ 4resident o o o o 'atural born citizen of the Philippines
:egistered voter ,ble to read and write ,t least F8 years of age on the day of election
Ma.uera vs 3orra
13

Property *ualifications may not be imposed for the exercise of the right to run for public office The law is declared unconstitutional for re*uiring each candidate to post a bond of P+8,888 upon the filing of C6C, sub!ect to forfeiture if he did not obtain at least #8P of the total votes cast in the constituency where he ran :epublic ,ct '6. FF+# re*uires a candidate to post a surety bond e*uivalent to one-year salary of the position to which he is a candidate, which bond shall be forfeited in favor of the government, if the candidate, except when declared winner, fails to obtain at least #8P of the votes cast for the office, there being not more than four candidates for the same office. The effect of said :epublic ,ct 'o. FF+# is to impose property *ualifications in order that a person could run for a public office, which property *ualifications are inconsistent with the nature and essence of the :epublican system ordained in the Constitution and the principle of social !ustice underlying the same. Conse*uently, :epublic ,ct 'o. FF+# is unconstitutional and hence null and void. That the effect of said :epublic ,ct 'o. FF+#& o to prevent or dis.uali$, from running for President, .ice-President, /enator or 5ember of the ouse of :epresentatives those persons who, although having the *ualifications prescribed by the Constitution therefor, cannot $ile the suret, bond a$ore"entioned' owin5 to $ailure to pa, the pre"iu" char5ed b, the bondin5 co"pan, andMor lacA o$ the propert, necessar, $or said counterbond; dis*ualifying for provincial, city or municipal elective offices, persons who, although possessing the *ualifications prescribed by law therefor, cannot pay said premium andJor do not have the property essential for the aforementioned counter-bond? imposing property *ualifications in order that a person could run for a public office and that the people could validly vote for him? elected would be of little value if one cannot assume office for non-compliance with the drug-testing re*uirement. It ou5ht to be "ade abundantl, clear' however' that the unconstitutionalit, o$ Sec. +: (5) o$ 1% 81:= is rooted on its havin5 in$rin5ed the constitutional provision de$inin5 the .uali$ication or eli5ibilit, re.uire"ents $or one aspirin5 to run $or and serve as senator. TaAin5 into account the $ore5oin5 $actors' i.e.' the reduced e6pectation o$ privac, on the part o$ the e"plo,ees' the co"pellin5 state concern liAel, to be "et b, the search' and the well-de$ined li"its set $orth in the law to properl, 5uide authorities in the conduct o$ the rando" testin5' we hold that the challen5ed dru5 test re.uire"ent is' under the li"ited conte6t o$ the case' reasonable and' er5o' constitutional. !iAe their counterparts in the private sector' 5overn"ent o$$icials and e"plo,ees also labor under reasonable supervision and restrictions i"posed b, the Civil Service law and other laws on public o$$icers' all enacted to pro"ote a hi5h standard o$ ethics in the public service. +0 %nd i$ 1% 81:= passes the nor" o$ reasonableness $or private e"plo,ees' the "ore reason that it should pass the test $or civil servants' who' b, constitutional co""and' are re.uired to be accountable at all ti"es to the people and to serve the" with ut"ost responsibilit, and e$$icienc,.
C./. DIS#I%!I2IC%TIONS c./.1 under the constitution 'o candidate who lost in the election shall, wJin # year after such election be appointed to any office in the government 0sec $, art Bb2 'o elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure 0 sec 90#2, art Bb2 ;nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other position in government 0sec 90+2, art Bb2 o Di<e when another office is held by a public officer in an ex officio capacity as provided by law and as re*uired by the primary functions of his office S because such other office does not comprise any other position The ex officio position is actually and in legal contemplation part of the principal office
property *ualifications are inconsistent with the nature and essence of the :epublican system ordained in our Constitution and the principle of social !ustice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth of the individual concerned
S>S vs Dan5erous Dru5s -n the same vein, the C65EDEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement /ec. 1$ 0g2, validl, i"pose .uali$ications on candidates $or senator in addition to what the Constitution prescribes. -f Congress cannot re*uire a candidate for senator to meet such additional *ualification, the C65EDEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of re*uirement not otherwise specified in the Constitution. /ec. 1$ 0g2 of :, B#$4, as sought to be implemented by the assailed C65EDEC resolution, effectively enlarges the *ualification re*uirements enumerated in the /ec. 1, ,rt. .- of the Constitution. ,s couched, said /ec. 1$ 0g2 unmista<ably re*uires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with li<e effect, a condition sine *ua non to be voted upon and, if proper, be proclaimed as senator-elect. The C65EDEC resolution completes the chain with the proviso that =NnOo person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test=. .iewed, therefore, in its proper context, /ec. 1$ 0g2 of :, B#$4 and the implementing C65EDEC :esolution add another *ualification layer to what the #BC9 Constitution, at the minimum, re*uires for membership in the /enate. (hether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting
The president, .P, members of the cabinet ad their deputies or assistants shall not, unless otherwise provided in the constitution hold any other office or employment during his tenure 0sec #1, art 92 'o senator or member of the : may hold any other office or employment in the government or any subdivision or agency or instrumentality thereof, including >6CCs or their subsidiaries, during his term without forfeiting his seat. 'either shall he be appointed to any office which may have been created or the emoluments thereof increased during the tern for which he was elected. 'o member of the constitutional commission shall during his tenure hold any other office or employment 0 sec +, art Ba2 The same dis*ualification applies to ombudsman and his deputies 0 sec C, art ##2 The ombudsman and his deputies shall not be *ualified to run for any office in the election immediately succeeding their cessation from office 0sec ##, art ##2 5embers of the constitutional commissions, the ombudsman and his deputies must not have been candidates for any elective position in the elections immediately preceding their appointment 0sec #, art Bb, sec # art Bc, sec # art pd, sec C art ##2
14

5ember s of the constitutional commission, the ombudsman and his deputies are appointed for a term of 9 years without reappointment The spouse and relatives by consanguinity or affinity within the Fth 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 >6CCs. 0sec #1, art 92 the selection by them of the functionaries who will represent them therein. d.2 3, appoint"ent- 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. C NT1%! 3%NL O2 TG 4GI!S. *. CI*I! S 1*IC COMMISSION -t is well-settled principle that the appointing authority is given ample discretion in the selection and appointment of *ualified persons to vacant positions. This is a management prerogative which is generally unhampered by !udicial intervention. (ithin the parameters of this principle, the right to select and appoint employees is the prerogative of the employer which may be exercised without being held liable therefore provided that the exercise thereof is in good faith for the advancement of the employerIs interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements and provided further that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite. ,n appointment is essentially within the discretionary power of whomsoever it is vested, sub!ect to the only condition that the appointee should possess the *ualifications re*uired by law. -t must be stressed that the law does not impose a rigid or mechanical standard on the appointing power. The appointing person en!oys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and to assume the responsibilities of the position to be filled. ,s earlier ruled in :eyes vs. ,beleda, at least sufficient discretion, if not plenary, should be granted to those entrusted with the responsibility of administering the offices concerned, primarily the department heads. They are in the position to determine who can best fulfill the functions of the office thus vacated. ;nless the law spea<s in mandatory and peremptory tone, there should be full recognition of the wide scope of such discretionary authority. The power of appointment is essentially a political *uestion involving considerations of wisdom which only the appointing authority can decide. d.2.1 %ppoint"ent distin5uished $ro" desi5nation S%NTI%HO *. CO% /trictly spea<ing, there is an accepted legal distinction between appointment and designation. (hile appointment is the selection by the proper authority of an individual who is to exercise the functions of a given office, designation, on the other hand, designation connotes merely the imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment 0or election2. Thus, the appointed /ecretary of Trade and -ndustry is, by statutory designation, a member of the 'ational Economic and Gevelopment ,uthority. , person may also be designated in an acting capacity, as when he is called upon to fill a vacancy pending the selection of a permanent appointee thereto or, more usually, the return of the regular incumbent. -n the absence of the permanent /ecretary for example, an undersecretary is designated acting head of the department. S *I!!% *. S%NTOS There is a difference between an appointment an appointment and a designation. ,ppointment is the selection by the proper authority of an individual who is to exercise the functions of an office. Gesignation, on the other hand, connotes merely the imposition of additional duties, upon a person already in the public service by virtue of an earlier appointment or election 0/antiago vs. Commission on ,udit, #BB /C:, #+4? Political Daw :eview by >onzales, pp. #CF-#C42. , mere =designation= does not confer upon the designee security of tenure in the position or office which he occupies in an =acting= capacity only. d.+ Ne6t-in-ranA rule S%NTI%HO >1. *. CI*I! S 1*IC COMMISSION (e need only recall our previous ruling in Taduran vs. Civil Service Commission 0D-4+84#, 1# @uly #BCF, #1# /C:, $$2 stating that there is =no mandatory nor peremptory re*uirement in the 0Civil /ervice Daw2 that persons next-in-ran< are entitled to preference in appointment. (hat it does provide is that they would be among the first to be considered for the vacancy, if *ualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment.= 6ne who is next-in-ran< is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. d. /. Discretion o$ %ppointin5 authorit,
c./.2 under local 5overn"ent code c./.+ other laws Provided that the prescribed dis*ualifications do not violate the constitution o Daw declared unconstitutional for being contrary to the constitutional presumption of innocence& when laws said the filing of a criminal information for disloyalty was a prima facie proof of guilt 0dumlao vs comelec2
c.=. $$ect o$ pardon Pardon is forgiveness and not forgetfulness hence it will not bring restoration to the civil and political rights of the person being pardon. Civil and political rights can only be restored when it is expressly stated in the pardon or when the pardon states that the person did not do the crime. ( sounds absurd, being pardon even though you did not commit the crime)... -talics supplied.. %rt. +:' 14C - , pardon shall not wor< the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. , pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. MONS%NTO *. 2%CTO1%N -//;E& wJn a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment. Pardon does not ipso facto restore a convicted felon to public office necessarily relin*uished or forfeited by reason of the conviction 2= although such pardon undoubtedly restores his eligibility for appointment to that office. 2: The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mista<en notion that the pardon virtually ac*uitted one from the offense of estafa would be grossly untenable. , pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral ris<, or who is unsuitable by reason of the pardoned conviction. The pardon granted to petitioner has resulted in removing her dis*ualification from holding public employment but it cannot go beyond that. (hile a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . -t does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. ;nless expressly grounded on the personIs innocence, it cannot bring bac< lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. "ut since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to bac< wages. d. 2or"ation o$ 1elations d.1 3, election P /election and designation by a popular vote. , mode of filling a public office, by which the enfranchised citizenry is able to participate directly in the conduct of the government, through
15

!%4INID *. CSC The determination of who among several candidates for a vacant position has the best *ualifications is vested in the sound discretion of the Gepartment ead or appointing authority and not in the Civil /ervice Commission. Every particular !ob in an office calls for both formal and informal *ualifications. Hormal *ualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests, of the service. >iven the demands of a certain !ob, who can do it best should be left to the ead of the 6ffice concerned provided the legal re*uirements for the office are satisfied. The Civil /ervice Commission cannot substitute its !udgment for that of the ead of 6ffice in this regard. (hile the act of appointment may in proper cases be the sub!ect of mandamus, the selection itself of the appointeeRta<ing into account the totality of his *ualifications, including those abstract *ualities that define his personalityRis the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. -t is a political *uestion that the Civil /ervice Commission has no power to review under the Constitution and the applicable laws. !I HO*. CSC The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil /ervice Commission to reverse him and call it temporary. The stamping of the words =,PP:6.EG as TE5P6:,:T= did not change the character of the appointment, which was clearly described as =Permanent= in the space provided for in Civil /ervice Horm 'o. 11, dated Hebruary #C, #BC1. 0 (hat was temporary was the approval of the appointment, not the appointment it sell ,nd what made the approval temporary was the fact that it was made to depend on the condition specified therein and on the verification of the *ualifications of the appointee to the position. The Civil /ervice Commission is not empowered to determine the <ind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the re*uirements of the Civil /ervice Daw. (hen the appointee is *ualified and authorizing the other legal re*uirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil /ervice Daws. e. %ssu"ption C Ter" o$ o$$ice 3O11OM O *. M%1I%NO ,ppointment is the sole act of those vested with the power to ma<e it. ,cceptance is the sole act of the appointee. Persons may be chosen for office at pleasure? there is no power in these -slands which can compel a man to accept the office. 0++ :. C. D. F+1.2 -f, therefore, anyone could refuse appointment as a !udge of first instance to a particular district, when once appointment to this district is accepted, he has exactly the same right to refuse an appointment to another district. 'o other person could be placed in the position of this @udge of Hirst -nstance since another rule of public officers is, that an appointment may not be made to an office which is not vacant. 0+B Cyc., #191.2 -n our !udgment, the language of the proviso to section #44 of the ,dministrative Code, interpreted with reference to the law of public officers, does not empower the >overnor->eneral to force upon the !udge of one district an appointment to another district against his will, thereby removing him from his district. =(hen the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled& it has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made. "ut having once made the appointment, his 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 then in the person appointed, and he has the absolute unconditional power of accepting or re!ecting it.= The great !urist further or observed that =-t is, emphatically, the province and duty of the !udicial department, to say what the law is= e.1. Doctrine o$ Gold over old-over S a public officerEs term has expired or his services terminated but he should continue holding his office until his successor is appointed or chosen and had *ualified. , public officer b. :ationale? public interest? prevent hiatus in public service. :ules& (hen law provides for it, incumbent will hold-over even beyond the term fixed by law until successor is chosen or appointed. -s officer de !ure or de facto during period of hold-over) ,nswer& Ge !ure. -(hen you have been given a term of office, is it possible to stay longer than the period stated or given to you) "ased on the doctrine of hold over, it says that a public officer whoEs term has expired or his services has already been terminated, may be allowed to continue holding the office or the post until his successor has been chosen or appointed. o Purpose or why this principle& to prevent hiatus in public service. @ust imagine having an office without having an occupant discharging the functions of that office. ow do you <now you are allowed to extend) The rules are that if the law provides for a hold-over, then you may hold over even beyond the term fixed by law. "ut it is not always the case that you have a law that expressly states such. There may be a law that is totally silent on whether you can continue holding the post even after the term has expired. The rule here is you can hold over unless there is expressly or implied prohibition. Express prohibition& shall be holding this office for $ years and not a minute longer. -mplied prohibition& when the law is silent& (hen you have a term that is fixed when hold over is impliedly prohibited, li<e the president. -f hold-over is allowed, what are you) Tou are a de !ure officer in the period you held such office during the period of holdover. -t matters because you will not be as<ed to reimburse, your actuations will be considered valid.
o o o o
$. Code o$ Conduct: 1% :01+ U Code of Conduct that public officials and employees are re*uired to observe& o Commitment to public interest, professionalism, !ustness and sincerity, political neutrality, responsiveness to the public, nationalism, patriotism, commitment to democracy and simple living. They are re*uired to observe this by law.
II. 4OE 1S' DITI S' 41I*I! H S %ND 41OGI3ITIONS Two thin5s that would stand out in !o Cha" case: 1. Her"ane 2. ssential
Do Cham S from being head of medico department to assist prosecutor in signing information S accused said it is not valid, he is as<ed to assist prosecution but /C said the power to sign is inherent or essential to the performance to assisting the prosecutor. -t is necessary implied from the express function of assisting the prosecutor. (hat if authority granted is only to issue subpoena. Can you cite in contempt) 'o. this power to cite a person in contempt is inherently !udicialJcoercive. -nherently !udicial but still exercisable by other agencies. 'ot exclusive to courts S also exercised by legislative bodies. Citing in person in contempt is germane and essential. 6ne expressly authorize subpoena, no express cite person in contempt a. %uthorit, o$ 4ublic O$$icers consist o$ those powers which are: #. +. 1. Expressly conferred upon him by the act appointing him Expressly annexed to the office by law ,ttached to the office by common law as incidents to it
Doctrine o$ Necessar, I"plication
16

,ll powers necessary for the effective exercise of the express powers are deemed impliedly granted. c. Linds o$ %uthorit,: Ministerial vs Discretionar, 5inisterial& one the discharge of which by the officer concerned is imperative and re*uired neither !udgment nor discretion. The exercise of which may be compelled. Ex. /heriffEs role to execute !udgment. Giscretionary& one imposed by law upon a public officer wherein the officer has a right to decied how and when the duty shall be performed. 5andamus will not lie to compel the performance of a discretionary power. (hen function is discretionary, mandamus will not lie except in cases when there is grave abuse of discretion in which case mandamus lie. (hy do you thin<) That if there is grave abuse of discretion, mandamus will lie) !o Cha" vs Oca"po The reason is that the power to sign informations, ma<e investigations and conduct prosecutions is inherent in the power =to assist= a prosecuting attorney, as these words are used in the ,dministrative Code. -t does not emanate from the powers of the ,ttorney >eneral or /olicitor >eneral conferred upon the officer designated by the /ecretary of @ustice? it is ingrained in the office or designation itself. The powers of the /olicitor >eneral bestowed on the appointee to assist the fiscal must be held as cumulative or an addition to the authority to sign informations, which is inherent in his appointment. -n other words, the clause =with the same authority therein as might be exercised by the ,ttorney >eneral or /olicitor >eneral= does not exclude the latter authority. The former practice of the ,ttorney >eneral to which we have alluded portrays a distinction between and separation of the powers or sets of powers. The power of the ,ttorney >eneral to sign informations, as we have pointed out, owed its being, not to the powers legitimately pertaining to his office as ,ttorney >eneral but to the special provision authorizing him to assist fiscals. ,nd it may be pertinent to <now that when the ,ttorney >eneralIs power to assist provincial fiscals ceased, he stopped signing informations. The phraseology of section #9 of ,ct 'o. C$9 before cited also affords an illustration of the idea that the authority to assist is separate and apart from the general powers of the ,ttorney >eneral. -n the language of this section, the person appointed was 0#2 to assist the fiscal in the discharge of his duties and 0+2 to represent the ,ttorney >eneral in such matters. -f the two phrases meant the same thing, then one of them would be superfluous. There is no apparent reason for holding that one or the other was a surplusage. Daws must receive sensible interpretation to promote the ends for which they were enacted. The duties of a public office include all those which truly lie within its scope, those which are essential to the accomplishment of the main purpose for which the office was created and those which, although incidental and collateral, are germane to, and serve to promote the accomplishment of the principal purposes. 0F1 ,merican @urisprudence, $C, 98.2 The authority to sign informations, ma<e investigations and conduct prosecutions is within the inferences to be gathered from the circumstances which prompted the passage of section F of Commonwealth ,ct 'o. #FF and its predecessors. can you say that the power to cite in contempt is incidental) The power that you can deemed implied is the power that is not higher than is expressly given. The power thatEs not expressly given must be lesser in scope and strength than that expressly given. To cite in contempt, in the absence for express provision, you go to court. Citing in contempt - -ts not !ust something incidental and itEs a higher power than the power to issue subpoena. M-'G/ 6H ,;T 6:-TT& a. b. Express authority or -mplied authority 5inisterial of Giscretionary %rmed forces shall be insulated from partisan politics. 'o member of the military shall engage directly or indirectly in any partisan political activity, except to vote. 6nly active members, not those in the reserve force, are covered by prohibition. III. !I%3I!ITI S O2 4I3!IC O22IC 1S a. 4resu"ption o$ 5ood $aith per$or"ance o$ duties and re5ularit, in the the case is otherwise proper, as in cases of gross abuse of discretion, manifest in!ustice or palpable excess of authority. -n nti!uera vs. "aluyot, et al. +#, such exceptions were allowed, =because the discretion must be exercised under the law, and not contrary to law. Daw protects exercise of discretion. d. 1i5hts and 4rivile5es
d.1 1i5ht to O$$ice Term& period during which the officer may claim to hold the office as of right while Tenure us the period which the officer actually holds office. d.2 1i5ht to Salar, Salar, is the personal compensation to be paid to the public office his services and it is generally a fixed annual or periodical payment depending on the time and not on the amount of the services he may render. "asis& legal title to the office and the fact that the law attaches compensation to the office. %rt.I* S C.1F 18<0 Constitution: Salaries o$ Senators and Me"bers o$ G1 a. Getermined by law b. 'o increase until after expiration of full term
%1T.*II S C.: 18<0 Constitution: Salaries o$ 4res and *4 a. Getermined by law b. c. d. /hall not be decreased during tenure 'o increase until after expiration of term 'ot receive any other emolument from gov. or any other source
%1T.*III S C.1F 18<0 Constitution: Salaries o$ Chie$ >ustice and %sso. >ustice' lower courts a. Hixed by law b. Guring continuance of office, not be decreased
%1T.I&-3 S C.< 18<0 Constitution 'o elective or appointive public office or employee shall receive additional, double or indirect compensation unless specifically authorized by law, nor accept without consent of Congress, any present, emolument, office or title of any <ind from any foreign government. Pension or gratuities shall not be considered as additional, double or indirect compensation. d.+ 4residential I""unit, $ro" Suit -mmunity from civil damages cover only official acts. This privilege us en!oyed only during tenure. ,fter tenure, he cannot invo<e immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties. /he may not be prevented from initiating suit. d./ Doctrine o$ O$$icial I""unit, P see transcriptions d.= 4re$erence in 4ro"otion d.: !eave o$ %bsence d.0 1etire"ent 4a, e. 4rohibitions (Sec.= (+)'< %1T.I&-3 18<0 Constitution)
2irst 4hil Goldin5s vs Sandi5anba,an ,s provided under :ule #+, /ec. + 0b2, intervention shall be allowed =in the exercise of discretion= by a court. 6rdinarily, mandamus will not prosper to compel a discretionary act. "ut where there is =gross abuse of discretion, manifest in!ustice or palpable excess of authority= e*uivalent to denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and ade*uate remedy, the writ shall issue. ,lthough, as averred by respondents, the recognized rule is that, in the performance of an official duty or act involving discretion, the corresponding official can only be directed by Mandamus to act but not to act one way or the other, =yet it is not accurate to say that the writ will never issue to control his discretion. There is an exception to the rule if
b.
Sec.+< P a public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or negligence Sec.1B S no subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. owever, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instruction of his superiors. Linds o$ !iabilit,
17

b.# nonfeasance S neglect or refusal to perform an act which is the officerEs legal obligation to perform b.+ misfeasance S failure to use that degree of care, s<ill and diligence re*uired in the performance of official duty b.1 malfeasance S the doing through ignorance, inattention or malice of an act which he had no legal right to perform. Three 2old !iabilit, 1ule S the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. F. 4. $. 9. C. B. #8. ##. #+. #1. ,bandonment of office ,cceptance of an incompatible office :esignation :emoval for cause Temporary appointmentsE termination :ecall -mpeachment Prescription of right to office Geath Conviction of crime where dis*ualification is an accessory penalty #F. Hiling of certificate of candidacy #4. Performance of act or accomplishment of purpose for which the office was created #$. Hailure to assume elective office within six months from proclamation b. 1. nd o$ Ter" Term S period of time during which a public officer has the right to hold office Tenure S period of time during which the public officer actually held office
c.
S%N !IIS * C% -t is well-settled that when a public officer goes beyond the scope of his duty, particularly when acting tortiously, he is not entitled to protection on account of his office, but is liable for his acts li<e any private individual NPalma v. >raciano, BB Phil. 9+ 0#B4$2O. Thus, in 5endoza v. Ge Deon N11 Phil. 48C 0#B#$2O, it was held& 'or are officers or agents of the >overnment charged with the performance of governmental duties which are in their nature legislative or *uasi-!udicial liable for the conse*uences of their official acts, unless it be shown that they act wilfully and maliciously and with the express purpose of inflicting in!ury upon the plaintiff. ,ccordingly, applying the principle that a public officer, by virtue of his office alone, is not immune from damages in his personal capacity arising from illegal acts done in bad faith, the Court holds that petitioner Helicisimo T. /an Duis, the Provincial >overnor of Daguna who has been sued both in his official and private capacities, must be held personally liable to "erroya for the conse*uences of his illegal and wrongful acts. ChaveB vs Sandi5anba,an The general rule is that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is a showing of bad faith. Do"in5o vs 1a,ala "asic in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. ,n action for each can proceed independently of the others. This rule applies with full force to sexual harassment. d. !iabilit, o$ Superior O$$icers $or %cts o$ Subordinates S a head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of suty, negligence or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of. %rias vs Sandi5anba,an (e can, in retrospect, argue that ,rias should have probed records, inspected documents, received procedures, and *uestioned persons. -t is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be as<ing for the impossible. ,ll heads of offices have to rely to a reasonable extent Ion their subordinates and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. -f a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, *uestion each guest whether he was present at the luncheon, in*uire whether the correct amount of food was served and otherwise personally loo< into the reimbursement voucherIs accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. ,ny executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of document , letters and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even more appalling. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. I*. T 1MIN%TION O2 1 !%TIONS a. Modes o$ Ter"ination in Heneral #. Expiration of Term or Tenure of 6ffice End of a fixed term End of Pleasure where one holds office at pleasure of appointing authority Doss of confidence in primarily confidential employment :eaching the age limit? :etirement "ona fide abolition of office
2.
nd o$ 2i6ed Ter" ;pon the expiration of the officerEs term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must be ipso facto terminated. nd o$ pleasure where one holds o$$ice at the pleasure o$ the appointin5 authorit, President can validly terminate tenure of .ice 5ayor of :oxas City as the office was created at the pleasure of the President. (hat is involved here is not the *uestion of removal, or whether legal cause should precede or not that of removal. (hat is involved here is the creation of an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President 0,lba v. Evangelista2.
2ernandeB v !edes"a The Charter of "asilan City provides that the President shall appoint and may remove at his discretion any of the cityEs officers, including its Chief of Police, with the exception of the municipal !udge, who may be removed only according to law. The legislative intent is to ma<e continuance in office dependent upon the pleasure of the President. Congress has the power to vest such power of appointment. Hurther, K, public office is the right for a given period, either fixed by law or enduring at the pleasure of the creating power.L ,lba v. Evangelista states that the replacement is not removal, but an expiration of tenure, which is an ordinary mode of terminating official relations. (hat is involved is not removal, or whether legal cause should precede such removal, but the creation of an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President. !oss o$ Con$idence in 4ri"aril, Con$idential "plo,"ent GernandeB v. *ille5as 6fficial and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be !ustified on the ground of loss of confidence because in that case, their cessation from office involves no removal but merely the expiration of the term of office. c. :etirement a. Conditions for entitlement to retirement benefits 0:.,. 'o. C+B#2 V b. he has rendered at least fifteen 0#42 years of service? c. he is at least sixty 0$82 years of age at the time of retirement? and d. he is not receiving a monthly pension benefit from permanent total disability. e. Compulsory :etirement f. ;nless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least $4 years of age with at least #4 years of service? Provided that if he has less than #4 years of service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations.
+. 1.
18

'6TE& different in 'achura :eviewer& Compulsory :etirement ,ge is 98 yrs for the members of the @udiciary and $4 yrs for other government officers and employees 0;nder 'ew >/-/ Charter2 3eronilla v HSIS The compulsory retirement of government officials and employees upon reaching the age of $4 years is founded on public policy which aims by it to maintain efficiency in the government service and, at the same time, give to the retiring public servants the opportunity to en!oy during the remainder of their lives the recompenses for their long service and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline and the exacting demands that the nature of their wor< and their relations with their superiors as well as the public would impose on them. d. V V V ,bolition of 6ffice ,s a general rule, absent some Constitutional prohibition, Congress may abolish any office it creates without infringing upon the rights of the officer or employee affected. To consider an office abolished, there must have been an intention to do away with it wholly and permanently. Termination by virtue of the abolition of the office is to be distinguished from removal. There can be no tenure to a nonexistent office. ,fter the abolition, there is in law no occupant. -n case of removal, there is an office with an occupant who would thereby lose his position. -t is in that sense that from the standpoint of strict law, the *uestion of any impairment of security of tenure when there is an abolition of office does not arise. The right itself disappeared with the abolished office as an accessory following the principal.
3usaca, v. 3uenaventura "usacay was laid off as toll collector when the bridge was destroyed. owever, the bridge was later reconstructed and opened to the public with a new collector being appointed. "usacay was ordered reinstated by the /C. To consider an office abolished, there must have been an intention to do away with it wholly and permanently. -n the case at bar, there was never any thought of not rebuilding the bridge. The collapse of the bridge did not wor< to destroy but only to suspend the position of toll collector thereon, and upon its reconstruction and re-opening, the collectorEs right to the position was similarly and automatically restored.
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Manalan5 v. #uitoriano The 'ational Employment /ervice was established by :.,. 'o. 9$# in lieu of the Placement "ureau. %uitoriano was appointed as 'E/ Commissioner in spite of the recommendation of the Dabor secretary to appoint 5analang who was the incumbent Girector of the Placement "ureau. /C held that appoint of %uitoriano was valid. , removal implies that the office still exists. :.,. 'o. 9$#, creating 'E/, expressly abolished the Placement "ureau and, by implication, the office of the Girector of the Placement "ureau. ad Congress intended the 'E/ to be a mere enlargement of the Placement "ureau, it would have directed the retention, not the transfer, of *ualified personnel to the 'E/. 5analang has never been 'E/ Commissioner and thus could not have been removed therefrom. V ,bolition 5ust "e in >ood Haith The abolition of an office does not amount to an illegal removal or separation of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith, not for personal or political reasons, and not implemented in violation of law. 2acundo v. 4abalan There is no law which expressly authorizes a municipal council to abolish the positions it has created. owever, the rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules providing otherwise. "ut the office must be abolished in good faith. The rule is well-settled that the power to create an office includes the power to abolish it, unless there are constitutional or statutory rules expressly or impliedly providing otherwise . owever, the office must be abolished in good faith? and if immediately after the office is abolished, another office is created with substantially the same duties, and a different individual is appointed, or if it otherwise appears that the office was abolished for personal or political reasons, the courts will intervene. CruB v. 4ri"icias ,s well settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. (here the abolition is made in bad faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees, it is null and void. -n the case at bar, while ++ positions were abolished, +C new positions with higher salaries were simultaneously created. 'o charge of inefficiency is lodged against petitioners. -n truth and in fact, what respondents sought to achieve was to supplant civil service eligibles with men of their choice, whose tenure would be totally dependent upon their pleasure and discretion. e. :eorganization This occurs where there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them to promote greater efficiency, to remove redundancy of functions, or to affect economy and ma<e it more responsive to the needs of their public clientele. -t may result in the loss of oneEs position through removal or abolition of office. :eorganization of the government may be re*uired by law independently of specific constitutional authorization. "ut in order to be valid, it must also be done in good faith. /ection +, ,rticle .---, #BC9 Constitution S The Congress shall have the power to define, prescribe, and apportion the !urisdiction of the various courts but may not deprive the /upreme Court of its !urisdiction over cases enumerated in /ection 4 hereof. 'o law shall be passed reorganizing the @udiciary when it undermines the security of tenure of its 5embers. $. ,bandonment , public office may become vacant ipso facto by abandonment and non-user. (hen an office is once abandoned, the former incumbent cannot legally repossess it even by forcible re-occupancy. ,bandonment must be total and absolute, and must be under such circumstances as clearly to indicate an absolute relin*uishment thereof. The officer should manifest a clear intention to abandon the office and its duties. ,bandonment by reason of acceptance of another office, in order to be effective and binding, must spring from and be accompanied by deliberation and freedom of choice, either to <eep the old office or renounce it for another. Temporary absence is not sufficient.
Su""ers v. OBaeta /ummers, a cadastral !udge, assumed office as CH- !udge due to an ad interim appointment. owever, the ad interim appointment was disapproved and /ummers now see<s to be reappointed as cadastral !udge. /C held that /ummersE voluntary acceptance of the position of CH- !udge amounted to a waiver of his right to hold the position of cadastral !udge during the term fixed and guaranteed by the Constitution. e accepted and *ualified for the position of !udge-at-large by ta<ing the oath of office of !udge-at-large, and not merely of an KactingL !udge-at-large. The situation is one wherein he cannot legally hold two offices of similar category at the same time. 5. V -ncompatible 6ffice e who, while occupying one office, accepts another office incompatible with the first, ipso facto absolutely vacates the first office. That the second office is inferior to the first does not affect the rule. ,nd even though the title to the second office fails as where election is void, the rule is still the same, nor can the officer then regain the possession of his former office to which another has been appointed or elected. -f the law or Constitution as an expression of public policy forbids the acceptance by a public officer of any other office other than that which he holds, it is not a case of incompatibility but of legal prohibition. -ncompatibility of offices exists where& V There is conflict in such duties and functions so that the performance of the duties of one interferes with the performance of the duties of another, as to render it improper for considerations of public policy for one person to retain both. V 6ne is subordinate to the other and is sub!ect in some degree to its supervisory powers for in such situation where both are held by the same person, the design that one acts as a chec< on the other would be frustrated. V The Constitution or the law itself, for reasons of public policy, declares the incompatibility even though there is no inconsistency in the nature and functions of the offices. Exceptions to the :ule on olding of -ncompatible 6ffices V (here the officer cannot vacate the first office by his own act, upon the principle that he will not be permitted to thus do indirectly what he could not do directly, as where the law re*uires the approval of the provincial board before a municipal official can resign. V Hirst office is held under a different government from that which conferred the second. V 6fficer is expressly authorized by law to accept another office. V /econd office is temporary. :esignation , resignation of a public officer need not be in any particular form, unless some form is prescribed by statute. 6rdinarily, it may either be in writing or by parol. There must be an intention to relin*uish a part of the term, accompanied by the act of relin*uishment. The right of a public officer to resign is well recognized, even where it is provided than an officer may hold over until election and *ualification of a successor. Conflicting .iews& V ,ccording to some authorities, no acceptance is necessary to render a resignation effective, especially when the resignation is unconditional and purports to ta<e effect immediately. V 5any other cases ta<e the view that to be effective, the resignation must be accepted by competent authority.
Dario v. Mison , reorganization is carried out in good faith if it is for the purpose of economy or to ma<e the bureaucracy more efficient. >ood faith, as a component of reorganization under a constitutional regime, is !udged from the facts of each case. -n the case at bar, there was lac< of good faith. Dela !lana v. %lba 'othing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The "atasang Pambansa is expressly vested with the authority to reorganize inferior courts and in the process to abolish existing ones. The termination of office of their occupants, as a necessary conse*uence of such abolition, is hardly distinguishable from the practical standpoint from removal, a power that is now vested in the /upreme Court. :emoval is, of course, to be distinguished from termination by virtue of the abolition of the office. There can be no tenure to a non-existent office. ,fter the abolition, there is in law no occupant. -n case of removal, there is an office with an occupant who would thereby lose his position. -t is in that sense that from the standpoint of strict law, the *uestion of any impairment of security of tenure does not arise. 'onetheless, for the incumbents of inferior courts abolished, the effect is one of separation. ,s to its effect, no distinction exists between removal and the abolition of the office. :ealistically, it is devoid of significance. e ceases to be a member of the !udiciary.
h. V V V V
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V (ithout acceptance, the resignation is nothing and the officer remains in office. 0$1 ,m @ur +d., sec. #$12 Two elements are necessary to constitute an effective acceptance& 0#2 intention to relin*uish office coupled with actual relin*uishment? and 0+2 acceptance of resignation. , Kcourtesy resignationL cannot properly be interpreted as resignation in a legal sense. -t !ust manifests the submission of a person to the will of the political authority. Courtesy resignation is not allowed in 0#2 career positions and 0+2 non-career positions with security of tenure 0i.e. local elective officials2. :emoval 4rotection $ro" 1e"oval without Cause 'o officer or employee of the civil service shall be removed or suspended except for cause provided by law 0/ec. +012, ,rt. -A, #BC9 Constitution2. Hrounds $or 1e"oval $ro" O$$ice Hor Presidential appointees, there is no specific law providing for the grounds for their removal. Getermination of grounds is !ust a matter of practice and by analogy, the grounds used for non-presidential appointees are made applicable. Hor civil service officials and employees, see /ec. F$, "oo< ., E.6. 'o. +B+ which provides for at least 18 grounds for disciplinary action. Hor local elective officials, /ec. $8 of the Docal >overnment Code provides for the grounds where an elective local official may be disciplined, suspended or removed from office. V 5isconduct need not be Kin officeL in case of appointive officers. V 5isconduct must be Kin officeL in case of elective officers. V 5isconduct committed during a prior term, not a ground for dismissal Trans$er $ro" One 4osition to %nother Ma, or Ma, Not Constitute *iolation o$ Securit, o$ Tenure , transfer is a movement from one position to another which is of e*uivalent ran<, level, or salary without brea< in service involving the issuance of an appointment. -t shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefore. -f the employee believes that there is no !ustification for the transfer, he may appeal to the /C. The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency? Provided, however that any movement from the non-career service to the career service shall not be considered a transfer. The intended transfer to Tarlac, if carried out without the approval of Dacson, would be e*uivalent to a removal from his office in 'egros 6riental. The reason is that a fiscal is appointed for each province and Dacson could not legally hold and occupy the two posts of fiscal of Tarlac and 'egros 6riental simultaneously. Therefore, to be a fiscal of Tarlac must mean his removal from office in 'egros. /ince the transfer is considered a removal, such should be for cause in order for the other person to legally occupy the office in 'egros. There was no cause for DacsonEs removal. e therefore remains as fiscal of 'egros 0Dacson v. :omero2. V /ec. ##, "P CC# provides& KThe office of any official elected who fails or refuses to ta<e his oath of office within six months from his proclamation shall be considered vacant , unless said failure is for cause or causes beyond his control.L
V V i. 1. V 2. V
*. %DMINIST1%TI* DISCI4!IN a. Over 4residential %ppointees a.#. Exceptions M%C D% *. *%S#I O -ssue& (hether the 6ffice of the 6mbudsman could entertain a criminal complaint for the alleged falsification of a !udgeIs certification submitted to the /upreme Court, and assuming that it can, whether a referral should be made first to the /upreme Court. :uling& -n fine, where a criminal complaint against a @udge or other court employee arises from their administrative duties, the 6mbudsman must defer action on said complaint and refer the same to this Court for determination whether said @udge or court employee had acted within the scope of their administrative duties. The investigation being conducted by the 6mbudsman encroaches into the CourtIs power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. ,rticle .---, section $ of the #BC9 Constitution exclusively vests in the /upreme Court administrative supervision over all courts and court personnel, from the Presiding @ustice of the Court of ,ppeals down to the lowest municipal trial court cler<. "y virtue of this power, it is only the /upreme Court that can oversee the !udgesI and court personnelIs compliance with all laws, and ta<e the proper administrative action against them if they commit any violation thereof. 'o other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. The 6mbudsman cannot !ustify its investigation of petitioner on the powers granted to it by the Constitution, for such a !ustification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the /upreme Court over all courts and their personnel, but li<ewise undermines the independence of the !udiciary. Thus, the 6mbudsman should first refer the matter of petitionerIs certificates of service to this Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to ma<e such a determination. The 6mbudsman cannot compel this Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter, as suggested by public respondent ,biera in his affidavitcomplaint
V V
+. V V
g. 6thers 1ecall V The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum 0/ec. 1, ,rt. A, #BC9 Constitution2 V The procedure for recall is provided in /ections $B-94 of the Docal >overnment Code. 4rescription o$ 1i5ht to O$$ice Inabia v. Cit, Ma,or ,ny person claiming a right to a position in the civil service is re*uired to file his petition for reinstatement within one year, otherwise he is deemed to have abandoned his office. :eason is public policy and convenience, stability in the public service. V The one-year period is the prescriptive period to claim public office 0whether through *uo warranto or otherwise2. The oneyear period presupposes !udicial action, not administrative action.
DO!%!%S *. OM3IDSM%N -ssue& (6' the 6ffice of the 6mbudsman may ta<e cognizance of the complaint against petitioner for purposes of investigation and possible prosecution in accordance with its mandate under /ection #1 0#2 and 0+2 of ,rticle A- of the #BC9 Constitution for alleged violation of the ,nti>raft and Corrupt Practices ,ct. :uling& The complaint against petitioner-!udge before the 6ffice of the 6mbudsman is basically administrative in nature. -n essence, petitioner!udge is being charged with having violated :ule #.8+, Canon # and :ule 1.84, Canon 1 of the Code of @udicial Conduct. -t must be borne in mind that the resolution of the administrative charge of unduly delaying the disposition of the said criminal case involves the determination of whether, in resolving the alarms and scandals case, petitioner-!udge acted in accordance with the guidelines provided in the :ules of Court and in the ,dministrative Circulars in pursuance of the ideals embodied in the Code of @udicial Conduct. /uch is clearly an administrative matter. ;n*uestionably, this Court is mandated of the #BC9 Constitution to assume under section $, ,rticle .--- of the #BC9 Constitution to assume administrative supervision over all courts and the personnel thereof. b. Over Non-4residential %ppointees
2ailure to %ssu"e O$$ice
/ection F$. Giscipline& >eneral Provisions. 0a2 'o officer or employee in the Civil /ervice shall be suspended or dismissed except for cause as provided by law and after due process. 0b2 The following shall be grounds for disciplinary action& 0#2 Gishonesty? 0+2 6ppression? 012 'eglect of duty? 0F2 5isconduct? 042 Gisgraceful and immoral conduct? 0$2 "eing notoriously undesirable?
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092 Giscourtesy in the course of official duties? 0C2 -nefficiency and incompetence in the performance of official duties? 0B2 :eceiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws? Conviction of a crime involving moral turpitude? 0##2 -mproper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children? 0#+2 .iolation of existing Civil /ervice Daw and rules or reasonable office regulations? 0#12 Halsification of official document? 0#F2 Hre*uent unauthorized absences or tardiness in reporting for duty, loafing or fre*uently unauthorized absence from duty during regular office hours? 0#42 abitual drun<enness? 0#$2 >ambling prohibited by law? 0#92 :efusal to perform official duty or render overtime service? 0#C2 Gisgraceful, immoral or dishonest conduct prior to entering the service? 0#B2 Physical or mental incapacity or disability due to immoral or vicious habits? 0+82 "orrowing money by superior officers from subordinates or lending by subordinates to superior officers? 0+#2 Dending money at usurious rates or interest? 0++2 (illful failure to pay !ust debts or willful failure to pay taxes due to the government? 0+12 Contracting loans of money or other property from persons with whom the office of the employee concerned has business relations? 0+F2 Pursuit of private business, vocation or profession without the permission re*uired by Civil /ervice rules and regulations? 0+42 -nsubordination? 0+$2 Engaging directly or indirectly in partisan political activities by one holding a non-political office? 0+92 Conduct pre!udicial to the best interest of the service? 0+C2 Dobbying for personal interest or gain in legislative halls and offices without authority? 0+B2 Promoting the sale of tic<ets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases if there is no prior authority? 0182 'epotism as defined in /ection $8 of this Title. 0c2 Except when initiated by the disciplining authority, no complaint against a civil service official or employee shall be given due course unless the same is in writing and subscribed and sworn to by the complainant. 0d2 -n meeting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be imposed in each case. The disciplining authority may impose the penalty of removal from the service, demotion in ran<, suspension for not more than one year without pay, fine in an amount not exceeding six monthsI salary, or reprimand. c. Over !HC. lective O$$icials P see %rt. &I' 18<0 Consti C Sec :F-:8 o$ >overnment and its subdivisions, instrumentalities and agencies, including members of the Cabinet, local government, government-owned, or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over 5embers of Congress, and the @udiciary.= /ection ++ thereof vests in the 6ffice of the 6mbudsman the power to investigate any serious misconduct in the office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. /uch power, li<ewise, includes the investigation of private persons who conspire with public officers and employees. /ection +1 re*uires that the administrative investigations conducted by the 6ffice of the 6mbudsman shall be in accordance with its rules of procedure and consistent with due process. The 6ffice of the 6mbudsman is, however, given the option to refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees. /ection +F, the 6mbudsman and his deputies are expressly given the power to preventively suspend public officials and employees facing administrative charges.
,ll these provisions in :epublic ,ct 'o. $998 ta<en together reveal the manifest intent of the lawma<ers to bestow on the 6ffice of the 6mbudsman full administrative disciplinary authority. #emedy available to the aggrieved party Hindings of facts by the 6ffice of the 6mbudsman when supported by substantial evidence are conclusive. ,ny order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one monthEs salary shall be final and unappealable. -n all administrative disciplinary cases, orders, directives or decisions of the 6ffice of the 6mbudsman may be appealed to the /upreme Court by filing a petition for certiorari within ten 0#82 days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with :ule F4 of the :ules of Court. 1 MO!ON% *. CSC Issue: (6' a civil service employee can be dismissed from the government service for an offense which is not wor<-related or which is not connected with the performance of his official duty. 1ulin5: -t cannot be denied that dishonesty is considered a grave offense punishable by dismissal for the first offense under /ection +1, :ule A-. of the :ules -mplementing "oo< . of Executive 6rder 'o. +B+. ,nd the rule is that dishonesty, in order to warrant dismissal, need not be committed in the course of the performance of duty by the person charged. The rationale for the rule is that if a government officer or employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected with his office, they affect his right to continue in office. The >overnment cannot tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is employed? and by reason of his office, he en!oys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations. The private li$e o$ an e"plo,ee cannot be se5re5ated $ro" his public li$e. Dishonest, inevitabl, re$lects on the $itness o$ the o$$icer or e"plo,ee to continue in o$$ice and the discipline and "orale o$ the service. The principle is that when an officer or employee is disciplined, the ob!ect sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the publicIs faith and confidence in the government. %CO4 *. O22IC O2 TG OM3IDSM%N Issue: 0#2 (6' the 6mbudsman has prosecutorial powers? 0+2 (6' respondent Casaclang as Geputy 6mbudsman for 5ilitary ,ffairs has the authority to conduct a preliminary investigation involving civilian personnel of the >overnment must first be resolved. 1ulin5: 0#2 (hen one considers that by express mandate of paragraph C, /ection #1, ,rticle A- of the Constitution, the 6mbudsman may =exercise such other powers or perform functions or duties as may be provided by la$,= it is indubitable then that Congress has the power to
d. O"buds"an d.1. >urisdiction OM3 *. C% -ssue& (6' the 6ffice of the 6mbudsman has the power to impose the penalty of # month suspension for simple misconduct of the GE': officers. :uling& 0Case at bar2 -n the present case, the Court similarly upholds the 6ffice of the 6mbudsmanEs power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault, in the exercise of its administrative disciplinary authority. The exercise of such power is well founded in the Constitution and :epublic ,ct 'o. $998. The authority of the 6mbudsman to conduct administrative investigations is beyond cavil. -t is mandated by no less than /ection #10#2, ,rticle A- of the Constitution. -n con!unction therewith, /ection #B of :epublic ,ct 'o. $998 grants to the 6mbudsman the authority to act on all administrative complaints. 6ther provisions in :epublic ,ct 'o. $998, li<ewise, pertain to the exercise by the 6ffice of the 6mbudsman of its administrative disciplinary authority. /ection #B states that :epublic ,ct 'o. $998 shall apply =to all <inds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee x x x, during his tenure of office.= /ection +# defines the !urisdiction of its disciplinary authority to include =all elective and appointive officials of the
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place the 6ffice of the /pecial Prosecutor under the 6ffice of the 6mbudsman. -n the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.G. 'o. #$18 and transfer them to the 6mbudsman? or grant the 6ffice of the /pecial Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of :.,. 'o. $998. Through the said law, the 6ffice of the /pecial Prosecutor was made an organic component of the 6ffice of the 6mbudsman, while the 6mbudsman was granted powers 0+2The deliberations on the Geputy for the military establishment do not yield conclusive evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel. 6n the contrary, a review of the relevant Constitutional provisions reveals otherwise. ,s previously established, the 6mbudsman =may exercise such other powers or perform such functions or duties= as Congress may prescribe through legislation. Therefore, nothing can prevent Congress from giving the 6mbudsman supervision and control over the 6mbudsmanIs deputies, one being the deputy for the military establishment. ,ccordingly, the 6mbudsman may refer cases involving non-military personnel for investigation by the Geputy for 5ilitary ,ffairs. -n these cases at bench, therefore, no irregularity attended the referral by the ,cting 6mbudsman of the %uratong "aleleng case to respondent Casaclang who, in turn, created a panel of investigators. C%M%3%H *. HI 11 1O Issue: (6' /ections #4 and #9 of :, $998 which empowers the 6mbudsman to conduct preliminary investigations of matters andJor referred to it is null and void for being contrary to and violative of the provisions of the Constitution. 1ulin5: The inevitable conclusion is that the 6mbudsman, under the #BC9 Constitution, particularly under paragraph C, /ection #1, ,rticle A-, may be validly empowered with prosecutorial functions by the legislature, and this the latter did when it passed :.,. 'o. $$98, which gave the 6mbudsman, among others, the power to investigate and prosecute individuals on matters andJor complaints referred or filed before it. The 6ffice of the 6mbudsman is a distinct constitutional body whose duties and functions are provided for by the Constitution itself. Considering that the power of the 6mbudsman to investigate and prosecute criminal cases emanates as it does from the Constitution itself, particularly, under paragraph C, /ection #1, ,rticle A- as above*uoted, which empowers the 6mbudsman to =exercise such other powers or perform such other functions or duties= as Congress may prescribe through legislation, it cannot be logically argued that such power or the exercise thereof is unconstitutional or violative of the principle of separation of powers enshrined in the Constitution. E*ually devoid of merit is the contention of petitioner that :.,. 'o. $998, insofar as it un*ualifiedly vests prosecutorial functions on the 6mbudsman, infringes on /ection 9, ,rticle A- of the Constitution, in that it invariably diminishes the authority and power lodged in the 6ffice of the /pecial Prosecutor. This ground relied upon by petitioner, li<e the first ground, has also been extensively dealt with and answered in, the aforecited case of cop v. &ffice of the &mbudsman. ,ddressing the contention raised by petitioners that the 6ffice of the /pecial Prosecutor is not subordinate to the 6mbudsman and is, in fact, separate and distinct from the 6mbudsman, such that Congress may not, under the present Constitution, validly place the 6ffice of the /pecial Prosecutor under the 6ffice of the 6mbudsman, this court has upheld not only the power of Congress to so place the 6ffice of the /pecial Prosecutor under the 6mbudsman, but also the power of the Congress to remove some of the powers granted to the then Tanodbayan, now 6ffice of the /pecial Prosecutor, under P.G. #$18, and transfer them to the 6mbudsman. d.2. 4ower to Investi5ate %d"inistrative Char5es d.2.1 Concurrent with the O$$ice o$ the 4resident G%H%D *. D%DO! Issue: (6' the 6mbudsman under :, 'o. $998, otherwise <nown as the 6mbudsman ,ct of #BCB, has been divested of his authority to conduct administrative investigations over local elective officials by virtue of the subse*uent enactment of :.,. 'o. 9#$8, otherwise <nown as the Docal >overnment Code of #BB#. 1ulin5: There is nothing in the Docal >overnment Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the 6mbudsman ,ct. The two statutes on the specific matter in *uestion are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and stri<e down the other . (ell settled is the rule that repeals of laws by implication are not favored, and that courts must generally assume their congruent application. Certainly, Congress would not have intended to do in!ustice to the very reason that underlies the creation of the 6mbudsman in the #BC9 Constitution which =is to insulate said office from the long tentacles of officialdom.= The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the 5inister of Docal >overnment until it became concurrent with the 6mbudsman upon the enactment of :, $998. The Docal >overnment Code 0:, 9#$82, in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the /ecretary 0the 5inister2 of Docal >overnment by the 6ffice of the President. d.2.2 Concurrent with the DO> GON%S%N *. DO> 4%N ! O2 IN* STIH%TINH 41OS CITO1S The Constitution does not exclude other government agencies tas<ed by law to investigate and prosecute cases involving public officials. -f it were the intention of the framers of the #BC9 Constitution, they would have expressly declared the exclusive conferment of the power to the 6mbudsman. -t is noteworthy that the 6mbudsman had properly differentiated the authority to investigate cases from the authority to prosecute cases. (hence, focus is directed to the second sentence of paragraph 0#2, /ection #4 of the 6mbudsman ,ct 0:, $9982 which specifically provides that the 6mbudsman has primary !urisdiction over cases cognizable by the /andiganbayan, and, in the exercise of this primary !urisdiction, it may ta<e over, at any stage, from any investigating agency of the government, the investigation of such cases. That the power of the 6mbudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled. The provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable by the /andiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation with the only *ualification that the 6mbudsman may ta<e over at any stage of such investigation in the exercise of his primary !urisdiction. ,s protector of the people, the office of the 6mbudsman has the power, function and duty to =act promptly on complaints filed in any form or manner against public officials= and to =investigate any act or omission of any public official when such act or omission appears to be illegal, un!ust, improper or inefficient.= The 6mbudsman is also empowered to =direct the officer concerned,= in this case the /pecial Prosecutor, =to ta<e appropriate action against a public official and to recommend his prosecution=. The clause =any NillegalO act or omission of any public official= is broad enough to embrace any crime committed by a public official. The law does not *ualify the nature of the illegal act or omission of the public official or employee that the 6mbudsman may investigate. -t does not re*uire that the act or omission be related to or be connected with or arise from, the performance of official duty. /ince the law does not distinguish, neither should we. The 6mbudsman ,ct ma<es perfectly clear that the !urisdiction of the 6mbudsman encompasses =all <inds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee as mentioned in /ection #1 hereof, during his tenure of office.= (hile it may be true that the 6mbudsman has !urisdiction to investigate and prosecute any illegal act or omission of any public official, the authority of the 6mbudsman to investigate is merely a primary 0sharedJconcurrent authority2 and not an exclusive authority 0no prior approval of 6mbudsman necessary to file info2. Thus, the noninvolvement of the office of the 6mbudsman does not have any adverse legal conse*uence upon the authority of the panel of prosecutors to file and prosecute the information or amended information. :, C+FB which the /andiganbayan Daw 0PG #C$#2 li<ewise provides that for other offenses to fall under the exclusive !urisdiction of the /andiganbayan, they must have been committed by public officers or employees in relation to their office. -n summation, the Constitution, the 6mbudsman ,ct and the /andiganbayan Daw, as amended, do not give to the 6mbudsman exclusive !urisdiction to investigate offenses committed by public officers or employees. The authority of the 6mbudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. owever, the 6mbudsman, in the exercise of its primary !urisdiction over cases cognizable by the /andiganbayan, may ta<e over, at any stage, from any investigating agency of the government, the investigation of such cases. -n other words, respondent G6@ Panel is not precluded from conducting any investigation of cases against public officers involving violations of penal laws but if the cases fall under the exclusive !urisdiction of the
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/andiganbayan, then respondent 6mbudsman may, in the exercise of its primary !urisdiction ta<e over at any stage. 6mbudsman and the G6@ have concurrent !urisdiction to conduct preliminary investigation, the respective heads of said offices came up with 65"-G6@ @oint Circular 'o. B4-88# for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit& the office of the ombudsman and the department of !ustice, in a series of consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers and employees& #. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or with the office of the provincialJcity prosecutor shall be under the control and supervision of the office of the ombudsman. ;nless the 6mbudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincialJcity prosecutor, which shall rule thereon with finality. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. :esolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority. Considering that the office of the ombudsman has !urisdiction over public officers and employees and for effective monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the provincialJcity prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their respective offices against public officers and employees. case of graft and corruption assigned to it by the President of the Philippines pursuant to /ec. +0b2 of Executive 6rder 'o. #. d.2./. O"buds"an $or the Militar, %H3%J *. D 4ITJ OM3IDSM%N 2O1 TG MI!IT%1J The deliberations on the Geputy for the military establishment do not yield conclusive evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel. 6n the contrary, a review of the relevant Constitutional provisions reveal otherwise. The 6mbudsman =may exercise such other powers or perform such functions or duties= as Congress may prescribe through legisiation. Therefore, nothing can prevent Congress from giving the 6mbudsman supervision and control over the 6mbudsmanIs deputies, one being the deputy for the military establishment. -n this light, /ection 1# of :, $998 provides& Gesignation of -nvestigators and Prosecutors. The 6mbudsman may utilize the personnel of his office andJor designate or deputize any fiscal, state prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him herein shall be under his supervision and control. ,ccordingly, the 6mbudsman may refer cases involving non-military personnel for investigation by the Geputy for 5ilitary ,ffairs. The Geputy 6mbudsman for the 5ilitary, despite his designation as such, is by no means a member of the military establishment. The said 6ffice was established =to extend the 6ffice of the 6mbudsman to the military establishment !ust as it champions the common people against bureaucratic indifference=. -t must be borne in mind that the 6ffice of the 6mbudsman was envisioned by the framers of the #BC9 Constitution as the =eyes and ears of the people,= =a champion of the citizenL and =protectors of the people.= Thus, first and foremost, the 6mbudsman and his deputies, including the Geputy 6mbudsman for the 5ilitary owe their allegiance to the people and ordinary citizens, it is clearly not a part of the military. (e fail to see how the assumption of !urisdiction by the said office over the investigation of cases involving the P'P would detract from or violate the civilian character of the police force when precisely the 6ffice of the 6mbudsman is a civilian office. d.2. 4reventive Suspension !%STIMOS% *. *%S#I O Issue: (6' the 6ffice of the 6mbudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against 5ayor -lustrisimo. (6' the 6ffice of the 6mbudsman can preventively suspend Dastimosa for failure to comply with the orders of the 6mbudsman. (6' prior notice and hearing is re*uired when an official is preventively suspended.
+.
1.
F.
To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities or as deputized 6mbudsman prosecutors. The fact that all prosecutors are in effect deputized 6mbudsman prosecutors under the 65"-G6@ Circular is a mere superfluity. The G6@ Panel need not be authorized nor deputized by the 6mbudsman to conduct the preliminary investigation for complaints filed with it because the G6@Is authority to act as the principal law agency of the government and investigate the commission of crimes under the :evised Penal Code is derived from the :evised ,dministrative Code which had been held in the 'atividad case#1 as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the !urisdiction to do so in the first place. owever, the 6mbudsman may assert its primary !urisdiction at any stage of the investigation. Petitioner insists that the 6mbudsman has !urisdiction to conduct the preliminary investigation because petitioner is a public officer with salary >rade 1# so that the case against him falls exclusively within the !urisdiction of the /andiganbayan. Considering the CourtIs finding that the G6@ has concurrent !urisdiction to investigate charges against public officers, the fact that petitioner holds a /alary >rade 1# position does not by itself remove from the G6@ Panel the authority to investigate the charge of coup dIetat against him. d.2.+. 4ower to investi5ate cases o$ ill-5otten wealth a$ter 2eb 2=' 18<: 1 4I3!IC *. S%NDIH%N3%J%N Issue: (6' the PC>> had the power to conduct an investigation as re*uired by /ec. + of :epublic ,ct 'o. #19B. 1ulin5: The power of the PC>> to conduct preliminary investigation of cases of this nature does not extend only to cases brought to recover illgotten wealth accumulated by former President 5arcos or his close associates but includes as well cases of graft and corruption assigned by the President to the PC>> for investigation. Hor what has not been sufficiently noticed is that complaints for graft and corruption, although not committed because of close association with former President 5arcos, can be investigated by the PC>> if directed by the President of the Philippines. -n accordance with /ec. # of Executive 6rder 'o. #F, dated 5ay 9, #BC$, the PC>>, with the assistance of the /olicitor >eneral, is the agency of the government empowered to bring these proceedings for forfeiture of property allegedly ac*uired unlawfully before Hebruary +4, #BC$, the date of the EG/, :evolution. The power to investigate cases of ill-gotten or unexplained wealth ac*uired after that date is now vested in the 6mbudsman. 0Case at bar2 "ut although there is neither allegation nor showing in the case at bar that former 5ayor ,rgana had unlawfully ac*uired his wealth by reason of close association with former President 5arcos, the PC>> had !urisdiction to conduct the investigation because this is a
1ulin5: #.
The office of the 6mbudsman has the power to =investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, un!ust, improper or inefficient.= 1/ This power has been held to include the 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. -t is enough that the act or omission was committed by a public official. ence, the crime of rape, when committed by a public official li<e a municipal mayor, is within the power of the 6mbudsman to investigate and prosecute. -n the existence of his power, the 6mbudsman is authorized to call on prosecutors for assistance. (hen a prosecutor is deputized, he comes under the =supervision and control= of the 6mbudsman which means that he is sub!ect to the power of the 6mbudsman to direct, review, approve, reverse or modify his 0prosecutorIs2 decision. Petitioner cannot legally act on her own and refuse to prepare and file the information as directed by the 6mbudsman.
+.
The 6mbudsman ,ct gives the 6ffice of the 6mbudsman the power to =punish for contempt, in accordance with the :ules
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of Court and under the same procedure and with the same penalties provided therein.= /ection ++. Preventive Suspension. R The 6mbudsman or his Geputy may suspend any officer or employee under his authority pending an investigation, if in his !udgment the evidence of guilt is strong, and 0a2 the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty? 0b2 the charges would warrant removal from the service? or 0c2 the respondentIs continued stay in office may pre!udice the case filed against him. The preventive suspension shall continue until the case is terminated by the 6ffice of the 6mbudsman but not more than six months, without pay, except when the delay in the disposition of the case by the 6ffice of the 6mbudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. 0Case at bar2 >iven the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case against 5ayor :ogelio -lustrisimo, their preventive suspension is !ustified to the end that the proper prosecution of that case may not be hampered. -n addition, because the charges against the two prosecutors involve grave misconduct, insubordination and neglect of duty and these charges, if proven, can lead to a dismissal from public office, the 6mbudsman was !ustified in ordering their preventive suspension. 1. Prior notice and hearing is a not re*uired, such suspension not being a penalty but only a preliminary step in an administrative investigation. :emember, that when there is grave abuse of discretion S it will amount to lac< of or excess of !urisdiction. /ee Do<in Case. (hat is the remedy of Do<in in this case. -t was contention here of Do<in that Comelec enlarged the law it was meant to implement by promulgating this -::. (hat was the remedy of Do<in in *uestioning such implementation) Court said that is enlargement here is considered grave abuse of discretion. /o going bac< to the *uestion do courts have supervisory powers over Comelec) Tes. There is fully no independent tribunal in the light of expanded !urisdiction under #BC9 Constitution. (hen we spea< of functions of Comelec, we are tal<ing about two <inds of function. These are administrative and ad!udicatory or *uasi !udicial. (hy do we even have to distinguish) "aytan case answered this. "ecause the remedy varies and depends on whether the action was done in accordance with its administrative or *uasi !udicial powers. Tou cannot go to /C without filing motion for reconsideration and it is a precondition to certiorari. There is one *uasi !udicial function of the comelec and that is /ec.1 par +. ,ll the rest are administrative including power to administer. (hy do you have to <now if this one is done in administrative or *uasi !udicial functions) (hen it is comelec exercising in its *uasi !udicial power, you will first have to file that in comelec division because whatever decision comelec may have will have to be challenged with motion for reconsideration to be filed with Comelec en banc. -f itEs *uasi !udicial function thatEs involve and you go directly to en banc, thatEs not only violation of rules of court but constitution as well. 5otion for reconsideration S it will be division that will forward to Comelec En "anc S you have to state that you are filing motion for reconsideration to the Comelec en banc. -t has to be first in division then 5: en banc and then certiorari to /C. Certiorari& :ule $4 S you have $8 days from receipt of !udgment or denial of 5: within which to file. -t is not a mode of appeal. -t is a special mode of appeal on the ground of grave of abuse of discretion. -f its comelec S you go to /C within 18 days. -f you appeal S rule F4 S appeal S *uestion of law. Tou have #4 days from receipt. 2 -f it is ad!udicatory S it has to be filed with Comelec division first and then in the en banc to which the remedy as<ed is motion for reconsideration. "ut then in the enumeration of the functions of C65EDEC, how many would be considered as ad!udicatory) There is only one function which is ad!ucatory from the nine functions S the rest are administrative. -n /ec.+ S what is ad!udicatory) There is a case telling you how many ad!udicatory function and that is the case of "aytan, and there is only one ad!udicatory function and that par. +, all the rest is considered administrative. /tarting off this authority to administer and enforce law pertaining to election. Goes it include all elections) 'o. it does not include in barangay elections S li<e in Hederation and ,ssociation of barangay council. (hy do you thin< the Constitutional committee expressly ta<es out from comelec this right to vote) The right to vote is inherently !udicial. (hy is it inherently !udicial) + -f all election contests are exclusive to Comelec S what is the purpose of courts then) Comelec has exclusive original !urisdiction if region, province, city. 5unicipal S :TC. -f its barangay position S go to 5TC. -f municipal S :TC of general !urisdiction D,( 6' P;"D-C 6HH-CE:/ (hat is public office) what element should be there when we say publc office) created by law. There should be a law creating such office& there has to be performance of sovereign functions. Public 6fficers S when do you <now he is a public officer. -ts office is created by law and vested with sovereign functions. -n laurel vs desierto S she wanted to bring in ombudsman, laurel says you cannot because am not a public officer, but /C said compensation is not an element for creation of public office. (ould you consider public officer a public employee) Tes. -f you loo< ,rt. +81 of :PC. Every public officer is public employee.
Transcriptions 1 (hat is the nature of Comelec) -s it something created by the Constitution) This one is mandated by the Constitution. (hat is the composition of Comelec) Chair and $ commissioners. Term of office) is it possible for Comelec Darazabal to re-appointed by ,*uino) Cannot. "ut how they are appointed) President cannot appoint unless appointee is recommended by C65EDEC. There also has to be consent of Commission on ,ppointment. C6, is within Congress. /o youEve got President appointing C65EDEC to be confirmed by C6, by serving 9 years without reappointment. %ualification& you must not have an elective position in the immediately preceeding elections.There is also re*uirement that you must be a lawyer. Kmember of the barL. There is re*uirement that a chair as well as the ma!ority must be a member of the bar who practiced law for #8 years. Practice of law S has a modern concept which is practice of law in and out of court. /ee cayetano vs monsod case. Common notion is that if you practice law it means you have practice litigation. 'ow, for as long as you apply legal <nowledge, that is practice of law. Practice of law in the modern concept S it is in and out of court S in the same decision S must apply legal <nowledge and perform such act to establish that whenever you do apply legal <nowledge S you have attycient relationship. ,pplying that S teaching cannot be li<ened to that. The application of <nowledge is in the concept of rendering legal <nowledge that will lead to an atty-client relationship. Element there is that such person becomes the client. Teaching S is not e*uivalent to practice of law 0although there is yet no decision about it2 -n monsod S you do not have to appear in court to have engaged in the practice of law. (hat is this rotational scheme) -n succeeding appointment, all seven will serve for 9 years. (hat authority does court have over Comelec) Goes court have supervisory powers over Comelec) -t is a matter of constitutional provisions. (hat about the decision of Comelec in the exercise of its *uasi !udicial powers) Tou can have this corrected by court only when you have grave abuse of discretion. -f its appeal and you go to /C, you address the *uestion of !urisdiction. ,rt. .--- /ec. #.
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,rt. 1 section 4 S you cannot re*uire religious test. -n the loose sense S on the code of conduct S you would thin< you can interchange the two concepts but in other laws and even in constitution, there is a need to ma<e a distinction. -n the loose sense, public officer and public employee are the same. -n the strict sense they are different. The only thing that separates it from the each other - one has discretion and one does not have 0public employee2. Characteristics of Public 6fficer S ,rt.## /ec.# #BC9 Constitution S wherein public office is a public trust Public 6ffice is not a property nor a property right. -f you die, you can as< your heirs to succeed you because you cannot as< your heirs to occupy and because public office is personal to the occupant. -f you die, can heirs claim salary) Tes. Tou have got distinguished between the office itself and the earned salary. Earned salary becomes your property so it can be claimed and succeeded upon by the heirs. M-'G/ 6H 6HH-CE:/ There are two <inds. ThatEs Ge @ure and Ge facto officer. , de facto S one actually occupying the position under some color of appointment except that first it is entirely possible that he may have failed to comply with precondition to him ta<ing the office. Ex. The other is when he is not eligible the he is a de facto officer. 5ore importantly, if there is want of power of the appointing or the electing body but such want of power is not <nown to the public or if he had been appointed pursuant to a law which later on have been declared invalid. Ge !ure S one who is in position plus one who has all the *ualifications. ,ppointed under a valid law and had complied with all re*uirements to the position. (hat if you are a de facto officer and discharge function and receive salary) (hat happened to the function and salary) Go you thin< function have not been given credence or invalidated upon declaration if you are de facto officer) They must be honored until such time he is declared de facto officer. ow about the salary) /ee /ampayan vs Gaza case. -s it always the same that de facto officer gets to retain the emoluments for services actually rendered) The rule is the de facto officer gets to retain the salary received for actual services rendered only if there is no de !ure officer. "ut if there is a de !ure officer, then he must have to return that even if he too< the office in good faith. >eneral :ule& de facto retains salary except if there is de !ure officer. Tou have to honor acts done of a de facto S because you cannot have the public chec<ing on the performance of a de facto officer. ,n officer is a de facto if he suffered ineligibility issues. (ho can prescribe *ualifications) 6ne is the Constitution. The other is the law or congress. There are restrictions as to power of congress to prescribe *ualifications. :emember this case of /@/ vs Gangerous Grugs S it is inconsistent with Constitutional provision. There is a case of re*uiring all candidates to post a bond S to which bond will be forfeited if you donEt get the re*uired number of votes. "ut this law S was held unconstitutional. -f you have to prescribe *ualifications S apply reasonable relations rule S this tells you *ualification must be germane in the position. -f congress has to prescribe *ualification - it must be reasonable connected to the position. 55G, case S congress created that position but the one who can appoint is the President of the Philippines and one can be appointed is the mayor of 6longapo City /C said that is unconstitutional because thatEs usurpation of the appointing authority. This ta<es away discretion from the power to appoint. /c said this law is unconstitutional. Congress must not prescribe so detailed as to ta<e away discretion from the appointing authority. (hen must you possess those *ualifications) /ee Case Hrivaldo vs comelec and dissent. Tou first have to possess the *ualifications at the time said either in the Constitution or the law promulgated by Congress. Ex. ,ge of president, F8 age. (hat if the law is silent on the time that you should possess the *ualification) when should you possess it) Possess it on the day you commence service. Tou start to be governed only at the time you commence performing function. Gissent& how can you be voter if you are not citizen. /C S says it retroacts to the day of election. -f the law is totally silent S you must possess it from the time you start performing the function. (hat is the usual *ualification) ,rt. .-. 'ationality, age, residence, registered voter and also in ,rt. .--. Then for local and elective official S ,rt. -A b. / (hat is Ge Hacto 6fficer) They have the reputation of a public officer but lac< the *ualification. G-/%;,D-H-C,T-6'/ S 6ne is conviction of a crime which carries with it forfeiture of office. P,:G6' S what is the effect of Pardon) -t forgives but it does not forgets. The effect on the position that you by reason of the conviction, you would have to re-apply. Can you re*uest for bac<wages) 'o. in all instances you cannot as< for bac<wages. The rule is that pardon does not warrant the personEs reinstatement and claim for bac<wages but as an exception it will really have to depend whether pardon is given because he is innocent or convicted. There are several ways by which you become a public officer& by election, appointment or designation. /ee Central "an< vs C/C. There are 1 independent Commission. C65EDEC, C/C, and C6,. (hat is the function of C/C, loo< at ,rt. -A. (hat comprises C/C) ,ll branches, subdivisions, instrumentalities of government including >6CCs but only those with original charters. The role of C/C, that appointment to C/ are made according to merit and fitness. -s there an exception) ,re there other ways by which you can be appointed to C/C other than through merit and fitness) ,s a rule, the merit and fitness is determined through competitive exams. Exceptions would be these three positions, in which case merit and fitness may be determined through other modes. -n sec.1 S function of C/C is really is to determine whether or not the *ualifications pertinent to merit and fitness are complied with. /ee Duego and Dapinid Case. /C said the most that C/C can do is acertain whether or not the appointee possesses the *ualifications. -f the appointee has the *ualifications, it cannot override the discretion of the appointing authority, never mind that somebody else is more *ualified. K(e declare once again, and let us hope for the last time, that the Civil /ervice Commission has no power of appointment except over its own personnel. 'either does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the re*uired *ualifications. The determination of who among aspirants with the minimum statutory *ualifications should be preferred belongs to the appointing authority and not the Civil /ervice Commission. -t cannot disallow an appointment because it believes another person is better *ualified and much less can it direct the appointment of its own choice. ,ppointment is a highly discretionary act that even this Court cannot compel. (hile the act of appointment may in proper cases be the sub!ect of mandamus, the selection itself of the appointeeRta<ing into account the totality of his *ualifications, including those abstract *ualities that define his personalityRis the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. -t is a political *uestion that the Civil /ervice Commission has no power to review under the Constitution and the applicable laws. Commenting on the limits of the powers of the public respondent, 'uego declared& -t is understandable if one is li<ely to be misled by the language of /ection B0h2 of ,rticle . of the Civil /ervice Gecree because it says the Commission has the power to =approve= and =disapprove= appointments. Thus, it is provided therein that the Commission shall have inter alia the power to& B0h2 pprove all appointments, $hether original or promotional, to positions in the civil service, except those presidential appointees, members of the ,rmed Horces of the Philippines, police forces, firemen, and !ailguards, and disapprove those $here the appointees do not possess appropriate eligibility or re!uired !ualifications . 0Emphasis supplied2 owever, a full reading of the provision, especially of the underscored parts, will ma<e it clear that all the Commission is actually allowed to do is chec< whether or not the appointee possesses the appropriate civil service eligibility or the re*uired *ualifications. -f he does, his appointment is approved? if not, it is disapproved. 'o other criterion is permitted by law to be employed by the Commission when it acts onR or as the Gecree says, =approves= or =disapprovesIRan appointment made by the proper authorities.L
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(hy do you thin< thatEs the rule) ,ny other constitutional sounding reason) C/C cannot change the decision of the appointing authority because inherent in the power of appointing is discretion. (hat is this next in ran< rule) -t is not mandatory because it is simply a matter of preferential consideration. Can there be a rule that ma<es it mandatory) (hy not) "ecause the power to appoint is discretionary. The moment you ma<e the next in ran< rule to be a mandatory provision, what is the evil in their) -n the case, the evil is that you reduced it into a rigid formula on the appointing power contrary to the policy of the law that among those *ualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for appointment. ,PP6-'TEG 6: GE/->',TEG S would it matter if you are appointed or designated) -s it a matter of semantics) Can you invo<e security of tenure in designation) 'o. /ee case of /antiago vs C6, S here issue is whether or not his additional compensation will be included in the computation of retirement benefits. -t is appointment if you have been given you a position wherein in designation, you are given additional tas<. -n the case of /eville S /eville is only designated in an acting capacity. "eing temporarily appointed you cannot as< for security of tenure. 5ere designation S there is no security of tenure. -n the case of "orromeo vs 5ariano S when you spea< assumption of office, that is already acceptance of appointment. ,cceptance S sole act of a person being appointed. old-over principle S this one allows you to continue holding office even after your term has expired. (e have this because you want to avoid hiatus. -s hold over apply to elective officials) 6r to appointed) ,ssignment. = (hat is this Goctrine of hold over) The rule there is when the la expressly provides for it then no problem. There are times when law is silent whether hold over is allowed. (hen law is silent S consider whether there are some other laws providing express prohibitions on hold over on certain positions. (hen the term of office is fixed S would it be safe to say that elective officials are not allowed hold over) Tou need only to recall that while city, provincial, national S they cannot hold over. Their term of office does not allow hold over. -n barangay officials S there is a law where hold over is allowed. old over -f permitted by law S de !ure officer. -n the Code of Conduct S you need to be committed to public interest by always upholding public interest over and above private interest. There has to be professionalism, intelligence, s<ill, @ustness and sincerity. Political neutrality. Tou also have to be prompt and courteous and lead modest live appropriate to your position and income. Tou cannot indulge in indulgence and ostentacious and extravagance display of wealth. These are if you want to !oin government service. Minds of powers - no problem if expressly given. 'ecessary -mplication S what is this doctrine) /ee Do Cham vs 6campo. Hrom being head of medica legal department S he is to assist the prosecutor. e hacing assisted the prosecutor and filing information. ,ccused said he is not authorized the filing of information. /C said that can be done because the filing of information is something that is essential in assisting the prosecutor. /c says that even if the power or function is not expressly stated, it can still be performed if it can be necessarily implied from the express function. Ex. , person who is as<ed to conduct investigation. Daw vests him to conduct investigation and call witness to which he is expressly authorized to issue subpoena. -f the person summoned fails to appeal, can he cite such person in contempt) Daw is silent. ,ll that is granted is the authority to issue subpoena. 'othing stated in contempt. Goes he have the power to cite in contempt still) Goes this power cite in contempt be exercised by necessary implication) Tes. ,nother fact, such power to cite in contempt is inherently !udicial but still exercisable by other bodies. The point being it can be exercised by non-!udicial entity. -t is not exclusively !udicial. Tes because, it is germane and essential. Power to subpoena vs Power to cite in contempt S are these of the same weight) Can you say that the power to cite in contempt is incidental with the subpoena power) The thing with subpoena power is that it is not lesser in scope and in strength than contempt power. "y necessary implication - The power here that you can deemed implied is that which is a power that is not higher than the power that is expressly given. To <now that the power to be exercised by necessary implication, you have to first understand and determine whether or not the power notg expressly given is higher than or is superior in scope and strength than the power expressly given. S this is the limitation. There are two <inds of authority flowing from doctrine of necessary implication& implied and express authority. The other classification of authority is that which includes 5-'-/TE:-,D and G-/C:ET-6',:T. 5inisterial - if he cannot do anything but perform the function Giscretionary - can decide /ee Case of ,prueba S what did we learn) (hat is this) away paleng<e) Diterally. The mayor did not allow operation. To compel the mayor to grant them licenses, they filed mandamus. /C said mandamus is not available to compel a discretionary function. (hen function is discretionary S mandamus will not lie. Except when there is grave abuse of discretion S then mandamus will lie. -f there is grave abuse of discretion, mandamus may lie. (hy included in expanded power of court) Daw protects discretion such that you cannot compel the exercise of discretion but by way of exception if you abuse it, you lose such protection. The discretion that is protected is that discretion which is exercised under the law and not contrary to law. : Compensation is not an element of public office. Can members of Congress hold multiple positions) TouEve got to *ualify. There is a prohibition in holding any other office aside from government. There is a meaning given of Kany other officeL. (ould a position held in ex-officio capacity be any other office) Ex officio capacity means that it is re*uired by the primar function of office and you do not get additional salary Thin< if secretary finance to sit as well in the 5onetary "oard of "/P. is seat there in "/P is not another office. ,rticle B0b2 /ec 9 and C S elective officials being allowed to hold another office. -t allows by law or by the primary function of the position. -t says there, appointive officials shall be allowed to hold office if permitted by law or by the primary function of his position to hold office. 5embers of cabinet S appointive officials distinguished with other appointive officials named in article B0b2. -n so far as other appointive officials are concerned, they can hold other office S if allowed by law or primary functions of office. (hich one is more strict) Provisions in art. 9 or provisiin in B0b2 sec.9) it is article 9 right) (hy is it more strict) "ecause in ,rt. 9 - members of cabinet can hold the other positions and not be considered another office if re*uired by law whereas if you go to art.B 0b2 S appointive officials can hold office if they can hold office if allowed by law. /o if allowed by law and primary function of office, then they can hold another office and receive of course salary for that. The other privilege is that President is immune from suit. The immunity extends during tenure and rightly so. The immunity is there because you do not want to bother the president in cases that she would have to attend to. The same immunity may extend to an official. Goctrine of 6fficial -mmunity S remember what you have learned about suits about state. Can you file a case against a government entity performing governmental function) Cannot. Can you file a case against a local government unity performing governmental function) Can you) Ex. G6 . Can you file a case against G6 for wasting of funds in distributing condoms) Can you file a case against G6 ) ,gainst D>;) DetEs say city government purchase millions of condoms) Can you file) Can you file a case against GE': for illegally giving out timber licenses) '6. ow about against city government in the performance of governmental function) Conversely, can you file a case against government official in the national government) (ould it be the same if it is a local government) -f -'C6:P6:,TEG S (hether or not governmental or proprietary function S you can file a case and not considered suit against state because it has a charter of its own, -f ;'-'C6:P6:,TEG S thatEs when you distinguish whether performing in proprietary or governmental. -f proprietary S you can file, if governmental you cannot. -f to government official of national government S as a rule you cannot file S in lansang case S suit against government officials is suit against state. (hy)
27

:emember it is a suit against the state if you ma<e the state liable in terms of giving out money to pay you or in terms of release of property to you. -tEs a suit against state if you ma<e state liable. -f suit will result either in the positive action of the state then thatEs suit against state. -f you file a case against a government of official who is simply performing his function even if is decreed to be liable he will have to as< from the state for the money to compensate the !udgment S this is a suit against a state because to satisfy a !udgment will be a positive act of the state. Conversely you file a case against government official in his private capacity involving the performance of official function, will that suit prosper) Hor as long as suit is labeled as suit against his personal capacity S suit will prosper. -f you file a case against a government official in the performance in his official capacity but which performance was done with malice, can suit prosper) Tes,if it is performed with malice and bad faith or corruption then he wouldnEt be going to state to satisfy his obligation because he exceeded his authority. That means he can be sued. ,s a rule S you shouldnEt be suing an official because there is a presumption of good faith and regularity of the performance of duty. Public officials are presumed to have acted in good faith. (e have this presumption because we do not want to hamper the efficiency of the official. (hat happens if good faith is not presumed) Ex. ,ssume fixers are all over the place. -n the administrative code S superior is liable if there is a written orderJauthority. -s there a way superior officer is liable without written authority) -n administrative code you find liability of a superior officer for acts of subordinates if he actually authorizes it by written order. -f there is no written order, what can be done) ,ll that needs to be done is not issue an order. The administrative order also says if it can be found that superior is guilty to gross negligence, it can be used. Tou can hold superior liable if there is an order. -n absence of order, you may want to prove if his acts can be accompanied with maliceJbad faithJgross negligence. -n the absence of some legal ground S can you exonerate yourself by saying - was instructed by the mayor to release the culprit) Can you exonerate a subordinate) The order of superior can be called insubordination or gross insubordination. -s there a liability in subordination) Tes there is even if he simple obeys order. "ecause we are presumed to <now the law. -gnorance will not excuse no one. Ex. TouEve got this mayor interpreting ordinance by himself. ,nd ta<ing it so wrongly it implemented it against by law. /hould the mayor being the superior here be held liable) (hile administrative code provides for liability, in cases of bad faith, malice or gross negligence, you cannot e*uate these 1 with mista<e of law J mista<e of fact. -n the case of H,:6D,' S this is about shipment of substance propylene film. (hat did the member of the team of bureau of customs do) They withheld the substance because it was allegedly a stronger substance than declared. (hat made them thin< that way) They were simply acting in their own interpretation. The issue here do you hold the one who committed a mista<e liable) /C said it is plain and simple mista<e and not tainted with bad faith, malice and gross negligence. /c said they acted erroneously but not whimsically. (hat happens now to the damage sustained) (ho is to bear the loss) There is damage but it canEt be attributed to bureau of customs. (hat did /C say) (hat happened to damage) 2arolan vs Sol"ac S "ut even granting that the petitioners committed a mista<e in withholding the release of the sub!ect importation because indeed it was composed of 6PP film scraps, 2F contrary to the evidence submitted by the 'ational -nstitute of /cience and Technology that the same was pure oriented 6PP, nonetheless, it is the duty of the Court to see to it that public officers are not hampered in the performance of their duties or in ma<ing decisions for fear of personal liability for damages due to honest mista<e. (hatever damage they may have caused as a result of such an erroneous interpretation, if any at all, is in the nature of a damnum abs!ue in(uria. 5ista<es concededly committed by public officers are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. ,fter all, =even under the law of public officers, the acts of the petitioners are protected by the presumption of good faith. -n other words, Gamage here S is one when there is no in!ury. There will only be a relief if there is an in!ury. ere sure you sustained losses but such loss was in a nature of a damage which did not result in in!ury. 5ere mista<e of an officer should be not amount bad faith, malice or gross negligence. M-'G/ 6H D-,"-DTT There are 1 <inds of liability& you can be held civilly, criminally and administratively liable. Three-$old !iabilit, 1ule - -f !udgment says that he is not liable administratively 0exonerated in the admin case2 it does not mean that he is exonerated from criminal or civil liability. Each is independent of the other. :egardless of the outcome of the other criminal or civil, you can made liable in the other. M-'G/ 6H D-,"-D-TT 5isfeasance? 5alfeasance? 'on-feasance. >ive examples. :emember this provision in :PC ,rt. +9 of 'CC. Mnowingly rendering an un!ust !udgment S the commission of this crime, !udgment through negligence S what is this) %1I%S DOCT1IN (hen does this apply) ave you heard of the term >host payroll) >host employees S they are not there, some are there but did not wor< or some are literally ghost meaning dead already. (here do funds go) To poc<ets of officials concerned. -f you have a mayor who does this, do you thin< you can invo<e arias doctrine against him) 'o. -n what scenario is this doctrine commonly used) (hat do we usually have if someone uses this doctrine) (hat transaction) There are transactions re*uiring final approval of head of office but not applicable to all transactions. (hat is the reason for the doctrine) 0 Three fold liability S a single act or omission of an officer could amount to administrative, civil and criminal liability. Each of these liabilities are independent of each other. @ust because you have been exonerated with one, li<e in an administrative liability. -f you are an elective candidate and reelected the administrative offense, this will necessary become moot and academic it carries with it the penalty of you being removed from office. because if you are re-elected, it will show the peopleEs confidence. "ut that doesnEt exonerate you from civil or criminal liability. (hen you are held liable S arias doctrine S the superior is actually excused if he has to rely on what has been done by a subordinate in the particular transaction. This case of arias S stems from several release of funds stemming from what is called ghost transactions. /C said if transaction is such that the documentation are so voluminous you cannot expect the head of office to go through them one by one, you cannot. /C said it is but o<ay for him not to personally examine a detail and not to painsta<ingly trace from inception to end and so in this case, he has the right and can he !ustify if he relies on the approval made by the subordinate and the final approving authority here would be exonerated. ThatEs the general rule. Then came your case in Cesa S in another doctrine. "oth of which are civil cases& arias and cesa. Cesa is another doctrine that says that maybe the case except that if transaction is such S that you are expected to have fore <nowledge of facts and circumstances that may suggest an irregularity, then it is incumbent upon the approving authority to exercise a certain degree of circumspection. and this may ta<e away arias defense and come into play gross negligence. -f it such that from the face that it is irregular and you did not ta<e highest degree of circumspection S gross negligence may come in. Cesa vs O$$ice o$ O"buds"an 6n the second issue, in lfonso v. &ffice of the President ,N+1O where this Court held that rias was not applicable, we ruled that a public officialIs fore<nowledge of facts and circumstances that suggested an irregularity constitutes an added reason to exercise a greater degree of circumspection before signing and issuing public documents. N+FO "y failing to prevent the irregularity that Cesa had reason to suspect all along or to ta<e immediate steps to rectify, Cesa had tolerated the same and allowed it to wrea< havoc on the coffers of the city.
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TE:5-',T-6' "eing terminated from office is one of the ways of discipline or of terminating official relations. 6ther modes of termination other than termination from office& 6ne way terminating public office is by the #. End of term S term here, remember two <inds S a. term thatEs fixed period of which is fixed and b. then if it is still a term when you serve at the pleasure of appointing authority. Can you thin< of a term thatEs fixed) 6r one at a pleasure of appointing authority) Ex. 5embers of cabinet S they serve at the pleasure of the appointing authority, such that if by tomorrow ,c*uino says K- donEt li<e the face of DasierdaL S remove or terminated) The obvious answer thatEs the end of his term because for that position, his term is at the pleasure of the appointing authority. -tEs entirely different from removal. (hen we say you have been removed from office - that denotes that the term hasnEt ended yet but for some cause legal or not, your stay on office has not been continued. -f it is end of the term, is it removal from office) it is not it is only termination of office by way of end of term but not removal from office. ,nd so when appointing authority says - donEt li<e your face anymore and donEt attend, thatEs not removal S that is !ust the end of your term. There is also one way of ending your ending of public office and thatEs through retirement. +. :etirement S prevailing law is >/-/ law, you must already be sixty or compulsory age sixty five. /ee :, C+B#. There is compulsory age $4. "ut if you want to avail of optional retirement, $8 must be your age and not be under total disability pension. K5ain ground for denial of the petition by the lower court is that the position in dispute is temporary and its functions transitory and precarious. The /olicitor >eneral in this instance simplifies the issue by confining the point of discussion to whether or not by the total destruction of the bridge in #BF9 the positions of toll collectors provided therefor were abolished. e opines that they were. (e agree with the /olicitor >eneralIs approach of the case but are constrained to disagree with his conclusions. To consider an office abolished there must have been an intention to do away with it wholly and permanently, as the word =abolish= denotes. ere there was never any thought, avowed or apparent, of not rebuilding the aforementioned bridge. :ather the contrary was ta<en for granted, so indispensable was that bridge to span vital highways in northern Duzon and to "aguio. This being so, the collapse of said bridge did not, in our opinion, wor< to destroy but only to suspend the plaintiffIs position, and that upon the bridgeIs rehabilitation and its reoperation as a toll bridge, his right to the position was similarly and automatically restored.L To prove good faith abolition, you must prove that the abolition is for simplicity, efficiency in the operation -f it is a valid abolition S it isnEt removal. /ecurity of Tenure S it is nothing but the right not to be removed from office without cause and without due process of law. (hat does that tell you) The issue of violation will only come in if it is removal. /o if it is the end of your term or if it is a case of valid abolition S these cases will tell you these are not removal from office Ergo, 'ot being a case of removal from office, you immediately ta<e away discussion on violations of security of tenure. Then if you have established it is a valid abolition S then there is no violation of security of tenure. 6ffice is a position in the government. -f an office is abolished S there has to be a law. Cruz vs Primicias S we transitioned from one government to the other. /C said almost always that with every transition, comes declaration of an office to be vacant. ,s a rule, you abolish an office through law. ,s rule it can also be a transition from one government to another. ,bolition has to be through law. F. :eorganization S you abolish an office through reorganization. -t means that there certain office you retain and that there are certain offices abolished. The reorganization must also be done in good faith. -t is such if it done in the name of economy, simplicity and efficiency in the operation of the government.
The retiree must have rendered at least #4 years of service and must be at least $8 years if age upon retirement.
(hy is retirement ac<nowledge) Case of "eronilla. (e said we want to maintain efficiency in the government. The other reason is to en!oy the remainder of his life. KThe compulsory retirement of government officials and employees upon their reaching the age of $4 years is founded on public policy which aims by it to maintain efficiency in the government service and at the same time give to the retiring public servants the opportunity to en!oy during the remainder of their lives the recompense, inade*uate perhaps for their long service and devotion to. the government, in the form of a comparatively easier life, freed from the rigors of civil service discipline and the exacting demands that the nature of their wor< and their relations with their superiors as well as the public would impose upon them. 'eedless to say, therefore, the officials charged with the duty of implementing this policy cannot be too careful in insuring and safeguarding the correctness and integrity of the records they prepare and <eep. -n this case, all that the "oard has done is to set aside what it found to be an erroneous decision of the >eneral 5anager in approving the change of date of petitionerIs birth, because from the evidence before it, the "oard was convinced that the originally recorded date of birth should not be disturbed. (e cannot see where the charged ine*uity of such action of the "oard could lie.L 1. ,"6D-T-6' 6H 6HH-CE or 6:>,'-W,T-6' S find mostly in local government unit. Ex. Tou competed with incumbent and he again won and at the end of the day, your position became vacant and suddenly youEve been we are reorganizing or abolishing the office when you <now the reason is political.
:ead case Garion vs 5ison S this is your authority telling when is it therefore not done in good faith. /C has given us example of reorganization done in good faith. /C already told us when is it in good faith S when it is for economy or you reorganize because of the efficiency. /C said if itEs done in bad faith, /C says you wanted to reorganize and so abolish certain offices but thenagain you go about increasing the number of positions in the new department S very clearly thatEs not done in good faith. That?s not reorganization for purposes of economy. /C said if you abolish office and create new offices with substantially the same functions, /C said reorganization done in bad faith. Garion vs 5ison S K>ood faith, as a component of a reorganization under a constitutional regime, is !udged from the facts of each case. owever, under :epublic ,ct 'o. $$4$, we are told& /EC. +. 'o officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. , valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil /ervice Daw. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party& 0a2 (here there is a significant increase in the number
"usa<ay vs "uena - office collapsed and he was terminated and few months after it was rebuilt and he applied again but said to him that there is abolition of office but /C said there is no abolition because in abolition there has to be the intention formally to do away with office. The intention to do away permanently. -f you have got to abolish, it must be shown that you abolish because the abolition must have to be done in good faith. "ut when do you <now its done in good faith. The good reason you can put up so then the abolition be in good faith is before you could say that the abolition is for promotion of simplicity, economy and efficiency in the operation of the government. -f that is the case, then the abolition is done in good faith.
29

of positions in the new staffing pattern of the department or agency concerned? 0b2 (here an office is abolished and another performing substantially the same functions is created? 0c2 (here incumbents are replaced by those less *ualified in terms of status of appointment, performance and merit? 0d2 (here there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices? 0e2 (here the removal violates the order of separation provided in /ection 1 hereof.L -f reorganization is done in bad faith, /C said reinstatement or reappointment of aggrieved party. ,bolition or reorganization S re*uired to be done in good faith and it is good faith if it is for purposes of economy, efficiency and simplicity of operation of government. The effect if reorganization in good faith S it is not removal from office because you are being removed only if office still exist. -f a valid reorganization and abolition S no more office to spea< of. ,nd so you are terminated but not removed. -f not removed, no violation of security of tenure. -n C6nsti -, consider !udiciary differently because they had it placed in the Constitution - /ec.## ,rt. .--- which says S no law shall be passed reorganizing the !udiciary when it undermines security of tenure. 0very tric<y2 (hen we say reorganization thatEs valid S we say no removal. :eorganization is not removal because there is 0no more office2 while in removal 0there is still office2 and occupant is removed. %& if you reorganize the !udiciary, do you violate security of tenure) 'o. because security of tenure is removal and :eorganization S is not removal. -t did not violate security of tenure but you ta<e away that !udge along with the office, not removal right) "ut you see it undermines the security of tenure because heEs not there anymore. ,nd so you canEt argue that that law is unconstitutional. :eorganization S presupposes no more office, you do not remove, you do not undermine security of tenure because security tenure only concerns with removal. :emoval S presupposes there is still office but no more occupant. ";T 'ow, #BC9 Constitution S it says no law shall be passed reorganization of !udiciary when it undermines /ecurity of tenure. Therefore you cannot reorganized if it violates security of tenure. The moment you removed me from office it did not directly violate security of tenure but you have under ined my security tenure. /o reorganization can be argued that it so undermine security of tenure. This is only for !udiciary. ere you cannot criticize in such a way that you are undermining the image of the institution. 4. -ncompatible office S when accepted you lose that office. $. Prescription S there this case of ;nabia which he forgot to file a case for *uo warranto such that he filed it many years after. /C said your right to file *uo warranto had prescribed. Tou can lose office by prescription or for failure to assume office or being administratively disciplined.
Tou see you can be disciplined possibly by 1 persons. Tou can be disciplined by President, by C/C, by 6mbudsman if it would li<e to discipline you. ,s to President - as disciplining authority. -f you are appointed by president S does that mean that you can also be removed by him or disciplined by him - because the power to appoint is the power to remove but it can happen that it can be otherwise. Di<e the power to appoint 6mbudsman but removal by impeachment because Constitution says so. /imply because that you have appointed does not mean that you can be removed by him, li<e in 6mbudsman. Tou can be removed because the power to appoint comes the power to remove except if law provided otherwise. -t can happen that law will provide otherwise li<e the Constitution S li<e 6mbudsman S appointed by President and removable by impeachment. 5embers of !udiciary S appointed by President but !udges of lower can be removed by /C because Constitution says so. There are also those appointed by him but removable by another entity because the law says so. Ex. Civil servants appointed by him but removable by C/C because law says so. /o when it comes to those removable by C/C, the rule is if you are employee in the civil service S you can only be suspended or dismiss for cause as provided by law and after due process. -t has to be for cause as provided by law and after due process. Chapter 9 S /ec. F$ S the moment you say as may be provided by law S wrongX (hy) (hen you say as may be provided by law S thatEs to admit he can be removed on grounds as to exist after his entry to the civil service. "ut you see the Daw says S he can only be removed for cause as provided by law, cause must already be provided by law and not to be provided some time after. The way it should be stated, Kfor cause as provided by law and after compliance with due process.L -f you are a C/C employee S you can only be removed as caused provided by law and due process. :ead & Chapter .-- sec.F$ on C/ code preventively suspended. - civil service can be
/ec. F9 S what is important to remember S C/C can be preventively suspend. Gistinguish the power of C/C to preventively suspend vs power of 6mbudsman and president of DC> to preventively suspend. /ec. 4# of C/ code, -t says, C/C may preventively suspend an employee under his authority pending investigation if the charge involves dishonesty, oppression, grave misconduct, neglect in the performance of duty or there is reason to believe that respondent is guilty of charges which would warrant removal from service. ;nder this, you can be preventively suspended for B8 days 01months2. Can you preventively suspended, without hearing or having heard) Tes. -t is not violation of due process. ,lso, because it is not a penalty. -t can be imposed without having heard you first, it can be heard without violating due process. ,nd it is for a maximum period of B8 days. (hat about elective officials) They can be removed if they are impeachable officers under ,rt. A-. Dist of impeachable officers is exclusive. Hor Docal officials S /ec.$8-$B will come in. /ee ,dmin Giscipline Docal >overnment Code. -f itEs a complaint against elective official of a province, highly organized city S it is the office of president that has authority to sit on your complaint. Hor a case against municipal S it should be sangguniang panlalawigan. Hor elective barangay officials S it should be file to sanggunian panglungsod concerned. Can you as an elective official S can you be preventively suspended) D>C has a different re*uirement. Tou can only be preventively suspended only after issues have been !oined. -f the issues have been !oined which means you have already been answered. ,nd the period is
Tou accept the incompatible office S lose that office S ,rt. .- /ec. #1. Ex. Can you appoint de lima as ombudsman) or <i<o as sec. of !ustice) Can be) Tes. There are only + <inds of forbidden offices& a. b. 'ewly created during your term or 6ld office but the emoluments for which have been increased during your term.
'ewly created d.i ang secretary of !ustice post) -t is not forbidden, it is !ust incompatible. Tou can give up your senate post so that you can accept this secretary of G6@ which is why acceptance of an incompatible office will amount to termination. -t is the acceptance that will result in the giving up of post. -t is when you accept that you are deemed resigned. :ecall what youEve learned in Public Corp)
30

$8 days max. owever S if you are facing several charges S it cannot exceed B8 days within a single year. DetEs loo< at 6mbudsman S it has !urisdiction over the conduct of all public officials. 6mbudsman has !urisdiction over all acts done by government officials including >6CCs. (hat if the act of the officer has got nothing to do with his function) Concubinage) as it anything to do with public office) There are acts not related to performance of an office, would 65" still has !urisdiction) Tes. 65" has still !urisdiction in all acts whether or not done in relation to the performance of functions. 6n all acts of government official whether or not related to official duty. Can 65" investigate on anonymous complaints) Tes. -f there is a complainant then he will be the one to sign affidavit of complaint but if anonymous complaint then it will have to be investigated upon the 65" and if it finds that there are grounds to hold the person liable then it will have to be signed by investigating officer. ,fter 65" shall have investigated, is the power Preliminary -nvestigation something exclusive only to it) Exclusive) Concurrent but it is still the one having primary power. There is a law that was passed that says if complaint involving acts of public school teachers, Geped should investigate that but 65" still has primary !urisdiction. -n impeachable officers, can 65" conduct P- on acts or omissions of impeachable officer) Tou can investigate for the purpose of preparing the articles of impeachment. The articles of impeachment can be prepared by 65", with endorsements of members of the ouse of :epresentatives. 6nce you fixed the forum for administrative complaint with 65", you are stuc< there. 6r once you fixed administrative aspect with office of president then you cannot anymore file with 65". Tou canEt do forum shopping. :emember 1 fold liability S criminal aspect stays with 65". ,dmin may lie with C/C, office of Pres and 65" and civil aspect may lie with court. (hat about for election offenses) Can ombudsman investigate election offenses) Tes along with office of prosecutor if they are deputized by Comelec. 65" can only come if they have been deputized. Can 65" investigate a !udge for falsifying certification) the rule is that you cannot get salary for the month unless you certify under oath that you donEt have cases pending in you sala that are submitted for decision beyond day period within which you must decide. @udge has got to decide within B8 days and you can only raw your salary if ma<e certification under oath that you donEtt have a case that hasnEt been decided yet within B8day period. ,nd it is found out that this !udge had a certification despite having a case not decided yet. ,nd so a case was filed against a !udge before 65". ere, 65" must as< first /C to rule on whether indeed the !udge had not performed his administrative function. (hy) "ecause in the Constitution, it is /C that has administrative supervision so if the act complained of against !udge has got something to do with his performance of his administrative function. The /C must ma<e a finding that indeed it has made an administrative violation before 65" can act on it. -t is really 65" has authority to investigate all acts or omission of all elective and appointive officials including >6CCs includeing members of a cabinet. Can it impose preventive suspension) Tes. ,nd for 65" S $ months. P:E.E'T-.E /;/PE'/-6' C/C S B8 days even before issues are !oined? 65" S $ months? D>C S $8 days when issues are !oined. Can a person admin cases under D>C and in the 65") Tes. Can it happen that 65" and 6ffice of President have concurrent !urisdiction) Tes. "ut for admin liability, you must choose which forum. Tou cannot forum shop. 6nly with criminal aspect S you can go with the 65". Hor administrative aspect, you can lodge it wither 6ffice of President or 65". (hen 65" decides, you have very little time 5:. if an admin decision, you have #8 days to 5:. if criminal case, 4 days to 5:. in an admin case and penalty is dismissal or penalty is suspension or reprimand S /C <eeps on flipflopping, the decision of 65" is immediately executory. Criminal case you can file 5: in 4 days but 65" will deny youEre 5:. where will you go) Tou go to /C in criminal case but in admin case, remember Habian case. Habian vs Gesierto S law saying 65" appeal to /C and /C said is unconstitutional because it increases appellate !urisdiction of /C without its advise and concurrence. -f in its admin case you appeal to C,. -n criminal case, you appeal to /C on pure *uestion of law because Constitution says so.
End
Hod 3less To Is %ll' Ee C%N do thisQ
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Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

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Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

Election Laws: 2011 Finals Reviewer

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