1.
What will you do to prove that public office is public
trust?
2. What is public office?
A public office is the right, authority and duty created
and conferred by law, by which for a given period, either fixed
by law or enduring at the pleasure of the appointing power, an
individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
benefit of the public. (Mechem)
Purpose and Nature
A public office is created to effect the end for which
government has been instituted which is the common
good; not profit, honor, or private interest of any person,
family or class of persons (63 A Am Jur 2d 667)
Nature: (1) A public office is a public trust. (Art. XI, Sec.
1, 1987 Consti)
(2) It is a responsibility and not a right. (Morfe
v. Mutuc)
Elements
(1) Must be created either by (a) the Constitution, (b) the
Legislature, or (c) a municipality or other body through
authority conferred by the Legislature;
(2) Must possess a delegation of a portion of the sovereign
power of government, to be exercised for the benefit of the
public;
(3) The powers conferred and the duties discharged must be
defined, directly or impliedly by the Legislature or through
legislative authority;
(4) The duties must be performed independently and without
control of a superior power other than the law;
Exception: If the duties are those of an inferior or subordinate
office, created or authorized by the Legislature and by it
placed under the general control of a superior office or body;
(5) Must have some permanency and continuity
3. How is a public office created?
1
Must be created either by (a) the Constitution, (b) the
Legislature, or (c) a municipality or other body through
authority conferred by the Legislature;
4. Who is an Officer de Facto?
De Facto Doctrine
Q: What is the de facto doctrine?
A: It is the principle which holds that a person, who, by the
proper authority, is admitted and sworn into office is deemed
to be rightfully in such office until:
(a) by judicial declaration in a proper proceeding he is
ousted therefrom; or
(b) his admission thereto is declared void.
Q: What is the purpose for the doctrine?
A: It is to ensure the orderly functioning of
government. The public cannot afford to check the validity of
the officer's title each time they transact with him.
De Facto Officer defined
Q: When is a person a de facto officer?
A: Where the duties of the office are exercised under any of
the following circumstances:
(1) Without a known appointment or election, but under such
circumstances of reputation or acquiescence as were
calculated to induce people, without inquiry, to submit to or
invoke his action, supposing him to the be the officer he
assumed to be; or
(2) Under color of a known and valid appointment or election,
but where the officer has failed to conform to some precedent
requirement or condition (e.g., taking an oath or giving a
bond);
(3) Under color of a known election or appointment, void
because:
(a) the officer was not eligible;
(b) there was a want of power in the electing or appointing
body;
(c) there was a defect or irregularity in its exercise; such
ineligibility, want of power, or defect being unknown to the
public.
(4) Under color of an election or an appointment by or technically
pursuant to a public, unconstitutional law, before the same is qualified in all
adjudged to be such. points of law to
act
Note: Here, what is unconstitutional is not the act creating
the office, but the act by which the officer is appointed to an How ousted Cannot be Only by a direct
office legally existing. (Norton v. County of Shelby) ousted. proceeding (quo
warranto); not
Officer De Jure v. Officer De Facto collaterally

De Jure De Facto Validity of Valid, subject Valid as to the

official acts to exceptions public until such
Requisites (1) Existenc (1) De jure (e.g., they time as his title
e of a de office; were done to the office is
jure beyond the adjudged
office; scope of his insufficient.
(2) Color of authority, etc.)
(2) must right or
possess general Rule on Entitled to Entitled to
the legal acquiescenc Compensatio compensation receive
qualificati e by the n as a matter of compensation
ons for public; right; only during the
the office time when no de
in (3) Actual The principle jure officer is
question; physical of "no work, declared;
possession no pay" is not
(3) must be of the applicable to He is paid only
lawfully office in him. for actual
chosen to good faith services
such rendered by
office; him.

(4) must Elements of a De Facto Officership

have
qualified (1) De jure office
himself to (2) Color of right or general acquiescence by the public;
perform (3) Actual physical possession of the office in good faith
the duties Note: This is not absolutely true. An intruder / usurper may
of such ripen into a de facto officer.
office
according Examples of De Facto Officers
to the
mode · A judge who continued to exercise his duties after his
prescribe appointment was disapproved by the CA according to a
d by law. newspaper report, but before receiving the official notification
regarding the rejection of his appointment (Regala v. Judge of
Basis of Right: he has Reputation: Ha CFI);
Authority the lawful s the possession
right / title to and performs · A lawyer instructed by the Acting Provincial Governor
the office the duties under to file an information for homicide, where the latter had no
color of right, authority to designate him as assistant fiscal, and where the
without being DOJ had not authorized him to act as such (People v. Penesa);
2

· A third-ranking councilor who is designated to act as
mayor by an officer other than the proper appointing authority
prescribed by law, and lacking the consent of the Provincial
Board (Codilla v. Martinez)
Examples of those not considered as De Facto Officers
· A judge who has accepted an appointment as finance
secretary and yet renders a decision after having accepted such
appointment (Luna v. Rodriguez);
· A judge whose position has already been abolished by
law, and yet promulgates a decision in a criminal case after the
abolition and over the objection of the fiscal (People v. So)
Legal Effect of Acts of De Facto Officers
As regards the officers themselves
GENERAL RULE: A party suing or defending in his own
right as a public officer must show that he is an officer de
jure. It is not sufficient that he be merely a de facto officer.
As regards the public and third persons
GENERAL RULE: The acts of a de facto officer are valid
as to third persons and the public until his title to office is
adjudged insufficient.
Official Acts of De Facto Officers not subject to collateral
attack
RULE: The title of a de facto officer and the validity of his
acts cannot be collaterally questioned in proceedings to which
he is not a party, or which were not instituted to determine the
very question.
REMEDY: Quo warranto proceedings
Who may file:
(1) The person who claims to be entitled to
the office;
(2) The Republic of the Philippines,
represented by
(a) the Solicitor-General; or (b) a public
prosecutor
Nueno v. Angeles
In this case, there were four (4) petitioners seeking to oust six
(6) Board Members. The Court held that this could not be
done unless all 4 of them were entitled to the offices of the 6.
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Liabilities of De Facto Officers
· The liability of a de facto officer is generally held to be
the same degree of accountability for official acts as that of a
de jure officer.
· The de facto officer may be liable for all penalties
imposed by law for any of the following acts:
(a) usurping or unlawfully holding office;
(b) exercising the functions of public office without lawful
right;
(c) not being qualified for the public office as required by
law.
· The de facto officer cannot excuse his responsibility for
crimes committed in his official capacity by asserting his de
facto status.
5. Who is an Officer de Jure?
Is one who is a lawful officer
6. What are the qualifications to public office?
a) President (Sec. 2, Art. VI, Constitution)
Vice President (Sec. 3, Art. VII, Constitution)
· Natural-born citizen
· 40 years old on day of election
· resident of the Philippines for at least 10 yrs
immediately preceding election day
b) Senator (Sec. 3, Art. VI, Constitution)
· Natural-born citizen
· 35 years old on day of election
· able to read and write
· registered voter
· resident of the Philippines for not less than two
years immediately preceding election day
c) Congressmen (Sec. 6, Art. VI, Constitution)
· Natural-born citizen
· 25 years old on day of election
· able to read and write
· registered voter in district in which he shall be
elected
· resident thereof for not less than one year
immediately preceding election day
d) Supreme Court Justice
· Natural born citizen
· at least 40 years old
 · 15 years or more a judge or engaged in law
practice
· of proven CIPI (competence, integrity, probity
and independence)
e) Civil Service Commissioners (Sec. 1 [1], Art. IXB.
Constitution)
· Natural-born citizen
· 35 years old at time of appointment
· proven capacity for public administration
· not a candidate for any elective position in
elections immediately preceding appointment
f) COMELEC Comm. (Sec. 1[1], Art. IXC)
· Natural-born citizen
· 35 years old at time of appointment
· college degree holder
· not a candidate for elective position in election
immediately preceding appointment
· chairman and majority should be members of
the bar who have been engaged in the practice of
law for at least 10 years (See Cayetano v.
Monsod)
g) COA Commissioners
· Natural-born citizen
· 35 years old at time of appointment
· CPA with >10 year of auditing experience or
· Bar member engaged in practice of law for at
least 10 years
· Not have been candidates for elective position
in elections immediately preceding appointment
h) Philippine Party-List Representative (Sectoral
representative):
· natural born citizen of the Philippines
· able to read and write
· registered voter
· resident of the Philippines for a period not less
than 1 year immediately preceeding the day of the
election
· bona fide member of the sector he seeks to
represent
· on the day of the election is at least 25 years
old BUT in case of youth sectoral representative, at
least 25 years and not more than 30 years old at the
day of the election
i) Philippine Local Officials:
· citizen of the Philippines
· on the day of election at least 23 years old for
Governor, Vice-Governor, member of sangguniang
panlalawigan, mayor, vice-mayor, sangguniang panglungsond
in highly urbanized cities; while at least 21 years old for the
said officials in component cities and municipalities; at least
18 years old for members of the sangguniang panglungsod,
4
sangguniang bayan and sangguniang barangay and punong
barangay; at least 15 years old and not more than 21 years of
age for Sangguniang kabataan.
· able to read and write FIlioini or any other local
language or dialect
· registered voter in the constituency in the locality
· resident thereof for a period of not less than 1 year
immediately preceding the day of the election
Public office, a public trust
It looks like most of our elected and/or appointed public
officials/government employees are unmindful of, or
completely ignore the underlying principle of public service
enshrined in our Constitution which says that “a public office
is a public trust”. Even the present P-Noy administration
which started out with a very promising slogan recognizing
the people as his boss (kayo ang boss ko), seems to be
complying with this principle more in words than in deeds.
It is really sad to note that our President has been reporting to
his “boss”, something different from what is actually
happening or being done by his administration especially in
connection with the terrible disasters hitting the central
Visayan provinces. The people are indeed quite disappointed
with his stance and have started to lose trust and confidence in
him. This fact is confirmed by the recent poll surveys showing
that his trust ratings have significantly gone down. In other
countries, such developments are enough to trigger some
resignations.
Resignations likewise immediately follow when government
officials have been implicated in irregularities eroding the
peoples’ trust and confidence in them even if they believe that
such loss of trust and confidence are groundless. They do not
stubbornly cling to their positions like leeches and wait until
the charges against them are proven in a very tedious court
process which may become moot and academic because of
long delay or where they may even be cleared because of
technicalities.
The recent filing of charges against some officials of the
present regime involved in the P10 billion pork barrel scam
should have triggered a lot of resignations. But so far, no one
has done so because of the usual excuse that they serve at the
pleasure of the President and will not therefore quit as long as
the President has trust and confidence in them. Obviously they
treat public office not as a public trust but a personal trust of
the President.
On the other hand, most of our locally or nationally elected
public officials also consider the public positions they occupy
as personal possessions and major sources of wealth and
power that should be kept within the family and handed down
from generation to generation. Undoubtedly, we are the only
democratic country where political dynasties exist and
continue to grow despite the constitutional provision banning
them. Apparently the ban does not work because our Congress
that is called upon to enact the enabling law to make it
effective is likewise under the control of political dynasties.
While a bill has already been submitted by the Lower House
committee for approval of the entire body, its leaders still
doubt that it will be passed precisely because the political
dynasties therein will block its enactment into law.
Indeed, being in the government service under our present
system is one way of making a lot of money and getting rich
quick. Hence so many people are aspiring and spending lots of
money just to be elected or gain appointments to public
offices. Our present political system has really enabled the
culture of corruption to thrive especially because of the wide
latitude of discretionary powers given to our officials from the
President down to the Barangay Captain particularly in the
disbursements of huge public funds and in granting favors or
closing deals, not to mention the multi-layered bureaucratic
red tape now in place.
Actually, some local governments have also adopted the
system of distributing pork to the members of their municipal
or city councils whose main task is merely to legislate, or
enact municipal or city ordinances. Perhaps one of the biggest
pork is that allocated to the Councilors of Quezon City who
get P40 million a year each or a total of P960 million per
annum. This allocation is of the same nature as the PDAF
which the Supreme Court has already declared
unconstitutional. So it should also be scrapped.
But instead of scrapping it so that the city will have enough
funds to meet its more vital expenses, the Council is even
trying to increase the real estate taxes of the properties located
in the city. This recent move has indeed raised a lot of
objections from property owners in the city for it will be an
additional and unnecessary burden on them without the
corresponding improvement in governance and delivery of
basic services.
Hence instead of increasing the real estate taxes, the council
should just junk their own pork barrel which is the major
source of corruption, dispensation of political patronage
and proliferation of political dynasties in the local the
government units. This is a great opportunity indeed for the
QC councilors to set the precedent and lead the way towards
the tuwid na daan for the other LGUs to follow and emulate.
How can a government official be held accountable for
negligence or dishonesty in public office or negligence in the
entries in his statement of assets, liabilities and net worth
(SALN)? What is betrayal of public trust?
Are these impeachable offenses?
5
Senate President Juan Ponce Enrile, presiding officer in the
impeachment trial of Chief Justice Renato Corona, has ordered
the defense and prosecution to define public trust and betrayal
of public trust.
Dishonesty became a buzzword after prosecutors of the House
of Representative asserted that Corona had demonstrated
dishonesty in his non-declaration of some properties in his
SALN.
The prosecution said such dishonesty constitutes betrayal of
public trust, an impeachable offense under the Constitution.
However, retired Supreme Court Justice Serafin Cuevas, the
lead defense counsel, said Corona’s apparent failure to declare
some of his properties, if for the sake of argument he did fail
do to so as the prosecution had alleged, the act does not
warrant dismissal from office. It calls merely for “corrective
action” under certain provisions of the SALN Law, and some
in cases that the Civil Service Commission had promulgated,
he added.
Tranquil Salvador III, a defense spokesman, said the basic
question is the accuracy in the details of Corona’s SALN.
“That’s the basic defense,” he said. “Is it accurate? Yes, it is
accurate.”
Salvador asked if any inaccuracy in Corona’s SALN should be
seen as an impeachable offense or merely violative of some
administrative procedure.
“It all goes back to their (House prosecution’s) credibility in
the presentation of evidence,” he said.
Under Article 2 of the verified impeachment complaint,
Corona committed culpable violation of the Constitution
and/or betrayal of public trust when he failed to disclose to the
public his SALN as required under the Constitution.
Article 3 accuses Corona of committing culpable violation of
the Constitution and betrayed public trust for lack of integrity,
impartiality and propriety. Corona is facing eight articles of
impeachment.
Betrayal of public trust was added as among the grounds for
impeachment under the 1987 Constitution, particularly Section
2 of the XI, Accountability of Public Officers.
Under the 1973 Constitution, only five grounds for
impeachment were listed: culpable violation of the
Constitution, treason, bribery, other high crimes, and graft and
corruption.
In the impeachment of Ombudsman Merceditas Gutierrez,
Sen. Francis Escudero said no jurisprudence – here and abroad
– exists on the issue of betrayal of public trust in relation to
impeachment.
Gutierrez resigned before the Senate started the trial.
The STAR culled at least three jurisprudence dealing with acts
of dishonesty and negligence in the submission of SALN, as
well as the issue of public trust.
The issues are the basis of the prosecution in pinning down
Corona in Article 2, which deals with public disclosure of
some of his properties and bank accounts (as part of his assets)
in his SALNs prior to 2010.
In the case of Narita Rabe v Delsa M. Flores, the Supreme
Court (SC) had ruled that Flores, an interpreter III of the
Regional Trial Court branch IV of Panabo, Davao, was
dismissed from service with forfeiture of all retirement
benefits and accrued leave credits and with prejudice to re-
employment in any branch or instrumentality of the
government, including government-owned and controlled
corporations.
It was also in the Flores case where the SC stressed that
“public office is a public trust.”
“It is well to stress once again the constitutional declaration
that a ‘(p)ublic office is a public trust’,” read the SC decision.
“Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives.”
In an en banc decision in the same case, the SC said no
position exacts a greater demand for moral righteousness and
uprightness from an individual than in the judiciary.
“We have repeatedly held that although every office in the
government service is a public trust, no position exacts a
greater demand for moral righteousness and uprightness from
an individual than in the judiciary,” read the SC decision.
“Personnel in the judiciary should conduct themselves in such
a manner as to be beyond reproach and suspicion, and free
from any appearance of impropriety in their personal behavior,
not only in the discharge of their official duties but also in
their everyday life. They are strictly mandated to maintain
good moral character at all times and to observe
irreproachable behavior so as not to outrage public decency.”
In March 23, 2011, the SC ruled in the case of the Presidential
Anti-Graft Commission (PAGC) and Office of the President
(OP) and former public works undersecretary Salvador Pleyto
that Pleyto was guilty of “simple negligence” for failure to
disclose in his SALN for 1999 to 2011 the business interests
and financial connections of his wife.
6
Pleyto violated Republic Act 6713, the Code of Conduct and
Ethical Standards for Public Officials and Employees, the SC
added.
The SC reversed the ruling of the Court of Appeals and
partially granted the petition of PAGC and the OP to affirm
their finding that Pleyto violated RA 6713.
Instead of dismissal, the SC imposed on Pleyto the penalty of
forfeiture of the equivalent of six months’ salary from his
retirement benefits for simple negligence.
“An act done in good faith, which constitutes only an error of
judgment and for no ulterior motives and/or purposes, does
not qualify as gross misconduct, and is merely simple
negligence,” read the decision on PGAC vs Pleyto.
“Petitioner’s negligence, though, is only simple and not gross,
in the absence of bad faith or the intent to mislead or deceive
on his part, and in consideration of the fact that his SALNs
actually disclose the full extent of his assets and the fact that
he and his wife had other business interests.”
In contrast to simple negligence, “gross misconduct and
dishonesty are serious charges which warrant the removal or
dismissal from service of the erring public officer or
employee,” the SC said in the Pleyto case.
The SC said apart from removal from office, gross misconduct
also carries with it accessory penalties, like cancellation of
eligibility, forfeiture of retirement benefits, and perpetual
disqualification from reemployment in government service.
“Hence, a finding that a public officer or employee is
administratively liable for such charges must be supported by
substantial evidence,” read the SC decision.
Oath of honesty and integrity
In another decision, the SC said: “A public servant must
display at all times the highest sense of honesty and integrity”
since the Constitution mandates the principle that a public
office is a public trust.
In a decision dated Jan. 31, 2011, the SC found one Nieto
Racho guilty of dishonesty and ordered his dismissal from
service in relation to his failure to include in his SALN alleged
bank accounts, which were not commensurate to his income as
a government official.
Associate Justice Jose Catral Mendoza penned the decision,
which Chief Justice Corona had himself certified.
A portion of the SC decision in Racho said: “(D)ishonesty
begins when an individual intentionally makes a false
statement in any material fact, or practicing or attempting to
practice any deception or fraud in order to secure his
examination, registration, appointment or promotion.

“It is understood to imply the disposition to lie, cheat, deceive,

or defraud; untrustworthiness; lack of integrity; lack of
honesty, probity or integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray.

“It is a malevolent act that puts serious doubt upon one’s

ability to perform his duties with the integrity and uprightness
demanded of a public officer or employee.”

The SC said the discrepancies in the statement of Racho’s

assets are not the results of mere carelessness.

“On the contrary, there is substantial evidence pointing to a

conclusion that Racho is guilty of dishonesty because of his
unmistakable intent to cover up the true source of his
questioned bank deposits,” read the SC decision.

The SC said in the Racho case that mere misdeclaration of the

SALN does not automatically amount to dishonesty.

“Only when the accumulated wealth becomes manifestly

disproportionate to the employee’s income or other sources of
income and the public officer/employee fails to properly
account or explain his other sources of income, does he
become susceptible to dishonesty,” read the SC decision.

“When a public officer takes an oath or office, he or she binds

himself or herself to faithfully perform the duties of the office
and use reasonable skill and diligence, and to act primarily for
the benefit of the public.

“Thus, in the discharge of duties, a public officer is to use that

prudence, caution and attention which careful persons use in
the management of their affairs.

“The Court has consistently reminded our public servants that

public service demands utmost integrity and discipline. A
public servant must display at all times the highest sense of
honesty and integrity, for no less than the Constitution
mandates the principle that a public office is a public trust; and
all public officers and employees must at all times be
accountable to the people and serve them with utmost
responsibility, integrity, loyalty and efficiency.”