the highest to the lowest.
56
Meaning of public office.
Read: Appari vs CA
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.2
In its broad sense, a public office is a charge, station or employment conferred by appointment
or election by a government.3
Essential elements of a public office.
They are as follows:
(1) It is created by the Constitution or by law or by some body or agency to which the power to
create the office has been delegated;
(2) It must be invested with an authority to exercise some portion of the sovereign power of the
State to be exercised for public interest;
(3) Its powers and functions are defined by the Constitution, or by law, or through legislative
authority;
(4) The duties pertaining thereto are performed independently, without control of a superior
power other than law, unless they are those of an inferior or subordinate officer, created or
authorized by the legislature and placed by it under the general control of a superior officer or
body; and
(5) It is continuing and permanent in nature and not occasional or intermittent.34
Meaning of public official.
A public official has been defined as an officer of the Government itself, as distinguished from the
officers and employees of instrumentalities of government. Hence, the duly authorized acts of
the former are those of the government, unlike those of government instrumentality which may
have a personality of its own, separate and distinct from that of the government, as such.57
Public Officer
(2) Under the Revised Penal Code. Any person who, by direct provision of law, popular election
or appointment by competent authority, takes part in the performance of public functions in the
Government of the Philippines, or performs in said Government or in any of its branches, public
duties as an employee, agent or subordinate official, or of any rank or class, is deemed a public
officer.55
The definition eliminates the standard distinction between "officer" and "employee" in the law of
public officers. It is also quite comprehensive, embracing as it does, every public servant from
Creation of public office.
(1) Generally. An office is created by some constitutional or statutory provision or by authority
conferred by it.
(2) By Congress. Except for such offices as are created by the Constitution, the creation of
public offices is primarily a legislative function. In so far as the legislative power is not restricted
by constitutional provisions, it is supreme, and the legislature may decide for itself what offices
are suitable, necessary, or convenient.
(a) When in the exigencies of government it is necessary to create and define new duties, the
legislative department has the discretion to determine whether additional offices shall be
created, or whether these duties shall be attached to and become ex officio duties of existing
offices.
(b) An office created by the legislature is wholly within the power of that body, and it may
prescribe the mode of filling the office, and the powers and duties of the incumbent,and, if it
sees fit, abolish the office.36
(3) By the President. As far as bureaus, agencies, or offices in the executive department are
concerned, the President's power of control may justify him to inactivate the functions of a
particular office, or certain laws may grant him the broad authority to carry out reorganization
measures. In particular, under the Administrative Code of 1987, "the President, subject to the
policy of the Executive Office and in order to achieve simplicity, economy and efficiency, shall
have the continuing authority to reorganize the administrative structure of the Office of the
President."37 For this purpose, he may transfer the functions of the other Departments or
agencies to the Office of the President.38
Officer and employee distinguished.
Read: Laurel vs Desierto
(1) In the law of public officer. An "officer" is distinguished from an "employee" in the greater
importance, dignity, and independence of his position, being required to take an official oath,
and perhaps give an official bond, and in the liability to office.52 Moreover, a public officer must
be invested by law with a portion of the sovereignty of the State, and authorized to exercise
functions either of an executive, legislative, or judicial character.53
However, the fact that the position is a subordinate one and that its holder may be accountable
to a superior does not prevent it from being an office, or the incumbent an officer as
distinguished from a mere employee. A subordinate or inferior is nonetheless an officer. A
degree of responsibility for results rests upon a public officer that does not attach to a mere
employee.54
ELIGIBILITY AND QUALIFICATIONS
(1) Eligibility is the state or quality of being legally fitted or qualified to be chosen. Eligibility to a
public office is of a continuing nature and must exist both at the commencement and during the
occupancy of an office.1
(2) Eligible means legally fitted or qualified to hold an office. Under the Administrative Code of
1987, it is used to refer to a person who obtains a passing grade in a civil service examination or
is granted a civil service eligibility and whose name is entered in the register of eligibles.2
Power of Congress to prescribe qualifications.
(1) In general. Congress is generally empowered to prescribe the qualifications for holding
public office, provided it does not exceed thereby its constitutional powers or impose conditions
of eligibility inconsistent with constitutional provisions. Qualifications for office must have a
rational basis. There must be a rational nexus between any requirements and duties of the
position in question.10
The qualifications prescribed must not be too detailed as to practically amount to making an
appointment which is an executive function and not legislative.
(2) Where office created by Congress. Where an office is the creature of Congress, that body can
deal with the subject of qualification and disqualification, provided that in so doing it does not
impinge upon any express provision of the Constitution. For example, where an office is created
by a legislative enactment, Congress has the power to specify that certain classes of individuals
are disqualified from holding the office.11
(3) Where office created by the Constitution. The general rule is that where the Constitution
establishes specific eligibility requirements for a particular constitutional office, the
constitutional criteria are exclusive. Thus, Congress may have no power to require different
qualifications for constitutional offices other than those qualifications specifically set out in the
Constitution. This is especially true in regard to offices created by the Constitution itself, unless
the Constitution expressly or impliedly gives the power to set qualifications.
(4) Where qualifications prescribed by the Constitution. Many mandatory constitutional
provisions as to qualifications for office are not self-executing, as for example, the requirement
that the fitness of persons to be appointed to public office shall be ascertained as far as
practicable by competitive civil service examinations. Such provisions are merely
announcements of a general principle clearly requiring legislation for their enforcement. The
right of Congress to prescribe qualifications is not inconsistent with the executive power of
appointment to office.
Where the Constitution has prescribed certain qualifications, Congress may prescribe additional
qualifications unless it appears that this action is prohibited.12
Qualifications usually required of public officers.
The qualifications for public office are continuing requirements and must be possessed not only
at the time of appointment or election or assumption of office but during the officer's entire
tenure. Once any of the required qualifications is lost, his title may be reasonably challenged.21
The formal qualifications usually required of public officers include those enumerated below. 22
(1) Citizenship. Aliens enjoy many of the rights of citizens but they also labor under certain
disabilities. It is a general principle that aliens are not eligible to public office, unless the
privilege is extended to them by statute.23
(2) Age. Although all persons are normally considered qualified for public office, it is
nevertheless true that age may present an obstacle to the holding of such an office, or of
particular offices. The age limit for certain offices may, by constitutional or statutory provisions,
be placed beyond the period of majority.27
(3) Right of suffrage. Since the right of suffrage is generally denied tothose who are not
citizens, the exclusion of unnaturalized foreigners from public office is likewise accomplished by
permitting none but electors or voters to be public officers.
(4) Residence - The term "residence" and "domicile," as used in many statutes, are held to be
synonymous. Both import not only an intention to reside in a fixed place, but also personal
presence in that place, coupled with conduct indicative of such intention.32
(5) Education - statutes prescribe educational qualifications when they reasonably relate to the
specialized demands of an office, enabling the holder to properly and intelligently perform the
duties of such office. Hence, there are certain offices which can be properly filled only by
persons possessing professional attainments.
(6) Ability to read and write. This qualification may lawfully be made since there is no
constitutional prohibition against it, especially where it has a reasonable relationship to the
duties of the position in question.
(7) Political affiliation. Normally, discrimination in public employment by reason of political
affiliation is proscribed by the Constitution. Since running for and holding political office are
forms of political expression, there must exist a compelling state interest in order to uphold the
validity of restrictions on holding political office.33 The Constitution and existing laws
sometimes require as a condition of eligibility to certain offices nomination by membership in a
political party or group.34
(8) Civil service examination. Qualifications in an appropriate examination for appointment to
positions in the first and second levels in the career service is required under the Civil Service
Law35 to insure that such appointment is made only according to merit and fitness to perform
the duties and assume the responsibilities of the positions.36
Qualifications prescribed by the Constitution for certain officers.
As provided in the Constitution, they are as follows:
(1) President and Vice-President. "No person may be elected President unless he is a natural-
born citizen of the Philippines, a registered voter, able to read and write, at least forty years of
age on the day of the election, and a resident of the Philippines for at least ten years immediately
preceding such election."50
"There shall be a Vice-President who shall have the same qualifications and term of office and be
elected with and in the same manner as the President. He may be removed from office in the
same manner as the President."51
(2) Senators. "No person shall be a Senator unless he is a natural- born citizen of the
Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and
write,a registered voter, and resident of the Philippines for not less than two years immediately
preceding the day of the election."52
(3) Members of the House of Representatives. "No person shall be a Member of the House of the
Representatives unless he is a natural-born citizen of the Philippines and, on the day of the
election, is at least twenty- five years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall be elected, and a resident
thereof for a period of not less than one year immediately preceding the day of the election."53
(4) Members of the Supreme Court and lower collegiate court. "No person shall be appointed
Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of
the Philippines. A Member of the Supreme Court must be at least forty years of age, and must
have been for fifteen years or more a judge of a lower court or engaged in the practice of law in
the Philippines."54
"A member of the judiciary must be a person of proven competence, integrity, probity and
independence."55
(5) Chairman and Commissioners of the Civil Service. "The civil service shall be administered by
the Civil Service Commission composed of a Chairman and two Commissioners who shall be
natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five
years of age, with proven capacity for public administration, and must not have been candidates
for any elective position in the elections immediately preceding their appointment."56
(6) Chairman and Commissioners of the Commission on Elections. "There shall be a Commission
of Elections composed of a Chairman and six Commissioners who shall be natural-born citizens
of the Philippines and, at the time of their appointment, t least thirty-five years of age, holders of
a college degree, and must not have been candidates for any elective position in the immediately
preceding elections. However, a majority thereof, including the Chairman, shall be members of
the Philippine Bar who have been engaged in the practice of law for at least ten years."57
(7) Chairman and Commissioners of the Commission on Audit. "There shall be a Commission on
Audit composed of a Chairman and two Commissioners, who shall be natural-born citizens of
the Philippines and, at the time of their appointment, at least thirty-five years of age, certified
public accountants with not less than ten years of auditing experience, or members of the
Philippine Bar who have been engaged in the practice of law for at least ten years, and must not
have been candidates for any elective positions in the elections immediately preceding their
appointment. At no time shall all Members of the Commission belong to the same profession."58
(8) Chairman and Members of the Commission on Human Rights. "The Commission shall be
composed of a Chairman and four Members who must be natural-born citizens of the
Philippines and a majority of whom shall be members of the Bar. The term of office and other
qualifications and disabilities of the Members of the Commission shall be provided by law." 59
(9) Ombudsman and his deputies. "The Ombudsman and his deputies shall be natural-born
citizens of the Philippines, and at the time of their appointment, at least forty years old, of
recognized probity and independence, and members of the Philippine Bar, and must not have
been candidates for any elective office in the immediately preceding elections. The Ombudsman
must have for ten years and more been a judge or engaged in the practice of law in the
Philippines."60
FORMAL QUALIFICATIONS MUST BE POSSESSED NOT ONLY AT THE TIME OF
APPOINTMENT OR ELECTION BUT DURING THE OFFICERS TENURE AND MAY BE
CHALLENGED WHEN LOST
READ: LABO VS COMELEC
Disqualifications to hold public office.
In general, individuals who lack any of the qualifications prescribed by the Constitution or by
law for a public office are ineligible or disqualified from holding such office. An appointment of
an ineligible or unqualified person is a nullity.The disqualification to hold a public office may
arise from a variety of causes.
(1) Mental or physical incapacity. From the very nature of the case, an idiot or other person non
compos mentis is incapable of accepting or holding public office.68 The law may expressly require
that a public officer be in possession of his mental faculties.
(2) Misconduct or crime. To assure public confidence in the essential integrity of the
government, persons convicted of crimes involving moral turpitude are usually disqualified
from holding public office. The provisions of a statute prohibiting convicted persons from
qualifying for office promote honesty and integrity in candidates for and holders of public
office.70
(3) Impeachment. Under the Constitution, "the President, the Vice- President, the Members of
the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may
be removed from office, on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public
trust."73
(4) Removal or suspension from office.
(5) Previous tenure of office. Under the Constitution, a disability tosucceed to office is imposed
upon certain officers.
(6) Consecutive terms. The Constitution likewise prohibits the holding of certain elective offices
by the same persons for more than a stated number of consecutive terms.
(a) The Vice-President shall not "serve for more than two successive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of the service for the full term for which he was elected."82
(b) A Senator shall not "serve for more than two consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected."83
(c) A member of the House of Representatives shall not "serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected."
(7) Holding more than one office. There is no constitutionally protected right to hold
incompatible offices.
(a) The rule against holding incompatible offices does not result in an unconstitutional
infringement of personal and political rights. In fact, it is said that a State has a legitimate
interest in preventing one person from holding multiple public offices. The manifest purposes of
a restriction on multiple holdings are to prevent offices of public trust from accumulating in a
single person, and to prevent individuals from deriving, directly or indirectly, any pecuniary
benefit by virtue of their dual position-holding.
(8) Relationship with the appointing power. Since a public office is a public trust, created for the
benefit and in the interest of the people, appointments thereto should be based solely on merit
and fitness uninfluenced by any personal or filial consideration.
(9) Office newly created or the emoluments of which have been increased.
The Constitution prohibits the appointment of a Senator or a Member of the House of
Representatives "to any office which may have been created or the emoluments thereof
increased during the term for which he was elected."97
(10) Being an elective official. Under the Constitution, "no elective
official shall be eligible for appointment or designation in any capacity to any public office or
position during Kis tenure."100 The Constitution seeks to minimize the so-called "spoils system."
The disqualification subsists only during the tenure in office (not term of office) of the elective
official. He may be appointed provided he forfeits his seat.
(11) Having been a candidate for any elective position. Under the Constitution, "no candidate"
who has lost in any election shall, within one year after such election, be appointed to any office
in the Government or any government-owned or -controlled corporations or in any of their
subsidiaries.101 The provision is directed against the so-called "political lame-ducks." Members
of the Constitutional Commission "must not have been candidates for any elective position in
the elections immediately preceding their appointment."102
ACQUISITION OF RIGHT OR TITLE TO OFFICE
Modes of commencing official relations.
A public office, being a trust or agency created for the benefit of the people, can be obtained only
in the manner prescribed by the Constitution or by law. An official power cannot exist in any
person by his own assumption or by the employment of some other private person not
authorized by law to make the appointment.
The manner of selecting persons for public office is generally by election or by appointment.1
Meaning of appointment.
(1) Appointment is the act of designation by the executive officer, board, or body to whom that
power has been delegated, of the individual who is to exercise the powers and functions of a
given office. In this sense, it is to be distinguished from the selection or designation by a popular
vote.2
B. Appointments by the President
Power of appointment of the President.
The power of the President to appoint officers in the government is conferred upon him by the
provision of the Constitution which reads:
"The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain and other
officers whose appointments are vested in him in this Constitution. He shall also appoint other
officers of the Government whose appointments are not otherwise provided by law, and those
whom he may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress."66
Kinds of Presidential appointments.
Under the Constitution, appointments may be classified as follows:
(1) regular or those made while Congress is in session. They are actually mere nominations
subject to confirmation by the Commission on Appointments;
(2) ad interim or those made while Congress is not in session or during its recess;
(3) permanent or those which last until they are lawfully terminated; and
(4) temporary or acting or those which last until a permanent appointment is issued.
Ad interim appointments.
The second paragraph of Section 16 of Article VII of the then Constitution (supra.), refers to ad
interim appointments or appointments made by the President during die recess of Congress,
whether such recess is voluntary or compulsory. Compulsory recess takes place when Congress
adjourns while voluntary recess is that which takes place before the adjournment of Congress,
like a Christmas recess.
(1) Under the Constitution, the Commission on Appointments which approves major
appointments of the President meets only while Congress is in session.85 The recess
appointment power keeps in continuous operation the business of government when Congress
is not in session. But the appointments shall cease to be effective upon rejection by the
Commission on Appointments, or if not acted upon, at the adjournment of the next session,
regular or special, of Congress.
F. De Facto Officers The de facto doctrine.
The de facto doctrine is the principle which holds that a person who, by the proper authority, is
admitted and sworn into office is deemed to be rightfully in such office until, by judicial
declaration in a proper proceeding, he is ousted therefrom, or his admission thereto is declared
void.217
Basis and reason for the doctrine.
The de facto doctrine springs from the fear of the chaos that would result from multiple and
repetitious suits challenging every action taken by every official whose claim to office could be
open to question, and seeks to protect the public by insuring the orderly functioning of the
government despite technical defects in title to office.218
Read: GENERAL MANAGER VS MONSERATE
POWERS, DUTIES, AND NORMS OF CONDUCT OF PUBLIC OFFICERS
Source of powers and authority of public office.
READ: LO CHAM VS OCAMPO , RCPI VS SANTIAGO
(a) Ministerial. Official duty is ministerial when it is absolute, certain, and imperative
involving merely execution of a specific duty arising from fixed and designated facts. Where the
officer or official body has no judicial power or discretion as to the interpretation of the law, and
the course to be pursued is fixed by law, their acts are ministerial only. A ministerial act has been
defined as one which a person performs on a given statement of facts, and in a prescribed
manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his
own judgment upon the propriety or impropriety of the act done.14
Thus, it is not within the scope of the duties of a ministerial officer to pass upon the validity of
laws, instructions, or proceedings prima facie valid, and requiring his action. His only duty in
such case is obedience and he cannot excuse himself by undertaking to show the
unconstitutionality or other invalidity of the law, or the irregularity of the proceeding;15 or
(b) Discretionary. Discretionary or judicial duties are such as necessarily require the exercise of
reason in the adaptation of means to an end, and discretion in determining how or whether the
act shall be done or the course pursued. Discretion in the manner of the performance of an act
arises when an act may be performed or a question may be decided in one of two or more ways,
either of which would still be lawful or right and where it is left to the will or judgment of the
performer to determine in which way it will be performed.16
When the law commits to any officer the duty of looking into facts and acting upon them, not in
a way which it specifically directs, but after a discretion in its nature judicial, the function is
quasi-judicial.17
READ: MIGUEL VS ZULUETA , APRUEBA VS GANZON
Norms of conduct of public officials and employees.
The functions and responsibilities of public officers enshrined in the Constitution "are not mere
rhetorical words to be taken as idealistic sentiments but as working standards and attainable
goals that should be matched with actual deeds."*5
(1) Public office is a public trust. The Constitution stresses adherence to the principle in the
provision which it declares: "Public office is a public trust. 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."47
(2) Standards of personal conduct. The Code of Conduct and Ethical Standards for Public
Officials and Employees48 declares the policy of the State to promote a high standard of ethics
in the public service.49 Under the Code, every public official and employee shall observe the
following as standards of personal conduct in the discharge and execution of official duties:
(a) Commitment to public interest.
(b) Professionalism.
(c) Justness and sincerity.
(d) Political neutrality.
(e) Responsiveness to the public.
(f) Nationalism and patriotism.
(g) Commitment to democracy.
(h) Simple living.
Duty to make financial disclosure.
To maintain public confidence in government and in public officials and employees, to avoid
conflicts of interest from arising, to deter corruption, and to provide the citizens with
information concerning a public officer's financial affairs and thus enable them to better judge
his integrity and fitness for office, the Constitution requires financial disclosures on the part of
all government personnel. It provides:
"All Members of the Senate and the House of Representatives shall, upon assumption of office,
make a full disclosure of their financial and business interest. They shall notify the House
concerned of a potential conflict of interest that may arise from the filing of a proposed
legislation of which they are authors."63
"A public officer or employee shall, upon assumption of office and as often as may be required
by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the
President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court,the
Constitutional Commissions and other constitutional offices, and officers of the armed forces
with general or flag rank, the declaration shall be disclosed to the public in the manner provided
by law.
READ: MORFE VS MUTUC
Public disclosure of statements of assets and liabilities.
Public officials and employees have an obligation under the Code of Conduct and Ethical
Standards for Public Officials and Employees to accomplish and submit declarations under oath
of, and the public has the right to know, their assets, liabilities, net worth and financial and
business interests including those of their spouses and of unmarried children under eighteen
(18) years of age living in their household.
(1) Act promptly on letters and requests. All public officials and employees shall, within fifteen
(15) working days from receipt thereof, respond to letters, telegrams or other means of
communications sent by the public. The reply must contain the action taken on the request;
RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS
Rights incident to public office.
The rights of one elected or appointed to office are, in general, measured by the Constitution or
the law under which he was elected or appointed. Where an office is created by a statute, the
rights of an officer elected thereunder are measured by the statute except insofar as he may be
protected by any provision of the Constitution.'
A public officer has, of course, the right to exercise those powers which are conferred upon him
by law. In general, the powers and duties of public officers are prescribed by the Constitution or
by statute, or both.3
The relation between an officer and the public is not the creation of contract, nor is the office
itself a contract. Hence, his right to compensation is not the creation of contract. It exists, if it
exists at all, as the creation of law (Constitution, statute, or ordinance), and when it so exists, it
belongs to him not by force of any contract but because the law attaches it to the office. The most
that can be said is that there is a contract to pay him such compensation as may from time to
time be attached by law to the office.22
Prohibition against receiving additional, double, or indirect compensation.
The pertinent constitutional provision reads:
"No elective or appointive public officer employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor accept without the consent of the
Congress, any present, emolument, office, or title of any kind from any foreign government.
Pensions or gratuities shall not be considered as additional, double or indirect compensation."49
The prohibition is designed to counter the evils of double compensation.50
The right to self-organization. "The right to selforganization shall not be denied to
government employees."56 The quoted provision grants to government employees in the civil
service the right to form unions enjoyed by workers in the private sector.
A parallel provision is Section 8 of Article III (Bill of Rights) which declares that the "right of the
people including those employed in the public and private sectors to form associations, unions,
or societies for purposes not contrary to law shall not be abridged." Another provision is Section
3 (par. 2.) of Article XIII (Social Justice and Human Rights) which mandates the State to
"guarantee the rights of all workers to self-organization, collective bargaining and negotiations
and peaceful concerted activities, including the right to strike in accordance with law."
Participation in prohibited activity or mass action.
Prohibited concerted activity or mass action action refers to "any collective activity undertaken by
government employees either by themselves or through their employees' organizations, with the
intent of effecting work stoppage or service disruption in order to realize their demands or force
concessions, economic or otherwise, from their respective agencies or the government."
However, a concerted activity or mass action "done outside of government office hours" may be
allowed and shall not be deemed prohibited so long as such would not result in disruption of
work.
Right to reinstatement and back salary.
Reinstatement and back salary or wages are separate and distinct reliefs given to an illegally
dismissed official or employee. The first means restoration to a state or condition from which
one had been removed or separated. One who is reinstated assumes the position he had
occupied prior to the dismissal. The second, on the other hand, is a form of relief that restores
the income that was lost by reason of unlawful dismissal.135
READ: DAVID VS GANIA
Next-in-rank rule.
(1) Not a mandatory requirement. The "next-in-rank" rule specifically applies only in cases of
promotion. 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.74 In other words,
one who is "next-in-rank" to a vacancy is given preferential consideration for promotion to a
vacant position, but it does not necessarily follow that he alone and no one else can be
appointed.
Merit which is a criterion entirely distinct from either longevity or length of service, must also be
recognized and whenever authorized by law must be rewarded.75
DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
Disabilities of President, Vice-President, Members of Cabinet, and their Deputies and
Assistants.
During their tenure, the President and Vice-President, as well as Members of the Cabinet and
their deputies and assistants are subject to prohibitions, namely:
(1) They shall not hold, unless otherwise provided in the Constitution itself, any other office or
employment;
. (2) They shall not practice any other profession;
. (3) They shall not participate, directly or indirectly, in any business;
. (4) They shall not be financially interested, directly or indirectly, in
any contract with, or in any franchise or special privilege granted by the government or any
subdivision, agency or instrumentality thereof including any government-owned or -controlled
corporation or their subsidiaries; and
(5) They shall strictly avoid conflict of interest in the conduct of their office. 1
The purpose of the prohibitions is to insure that the officials mentioned (the President
particularly) will devote their full time and attention to their official duties, prevent them from
extending
Prohibition against engaging in partisan political activities.
The pertinent provisions of the Constitution read:
"No officer or employee in the civil service shall engage, directly or indirectly, in any
electioneering or partisan political campaign."17
"Professionalism in the armed forces and adequate remuneration and benefits of its members
shall be a prime concern of the State. The armed forces shall be insulated from partisan politics.
No member of the military shall engage directly or indirectly in any partisan political activity,
except to vote/'18
READ: PEOPLE VS DE VENECIA
LIABILITIES OF PUBLIC OFFICERS
Doctrine of official immunity from liabilities for public officers.
It is generally recognized that public officers and employees would be unduly hampered,
deterred, and intimidated in the discharge of their duties, if those who act improperly, or even
exceed the authority given them, were not protected to some reasonable degree by being
relieved from private liability. Accordingly, the rationale for official immunity is the promotion
of fearless, vigorous, and effective administration of policies of government. The threat of suit
could also deter competent people from accepting public office.
Liability for unexplained wealth.
(1) Republic Act No. 1379 (Forfeiture of Unexplained Wealth Act.) declares the forfeiture in favor of
the State of any property found to have been unlawfully acquired by any public official or
employee.
Under the Act, "whenever any public officer or employee has acquired during his incumbency
an amount of property which is manifestly out of proportion to his salary as such public officer
or employee and to his other lawful income and the income from legitimately acquired
property, said property
shall be presumed prima facie to have been unlawfully acquired. The Solicitor General, upon
complaint by any taxpayer to the city or provincial fiscal [now prosecutor] who shall conduct a
previous inquiry similar to preliminary investigations in criminal cases and shall certify to the
Solicitor General that there has been committed a violation of the Act and the respondent is
probably guilty thereof, shall file, in the name and on behalf of the Republic of the Philippines,
in the [Regional Trial Court] of the city or province where said public officer or employee
resides or holds office, a petition for a writ commanding said officer or employee to show cause
why the property aforesaid, or any part thereof, should not be declared property of the State."1
R.A. No. 1379 creates a presumption juris tantum against the public officer or employee who
acquires property grossly disproportionate to his income, that is, that the property was
unlawfully acquired. This presumption, once established, may be rebutted by the public officer
or employee by showing to the satisfaction of the court that his acquisition of the property was
lawful (e.g., through a donation and loans). Failing in this, the court shall declare the questioned
property forfeited in favor of the state.106
TERMINATION OF OFFICIAL RELATIONS
A. Specifically Modes of termination of official relations.
The authority and duties imposed by the office may be terminated by any of the following ways:
. (1) Expiration of the term or tenure of office;
. (2) Reaching the age limit (retirement);
. (3) Death or permanent disability;
. (4) Resignation;
. (5) Acceptance of an incompatible office;
. (6) Abandonment of office;
. (7) Prescription of right to office;
. (8) Removal;
 (9) Impeachment;
.
. (10) Abolition of office;
. (11) Conviction of a crime; or
. (12) Recall.
The above are the legal modes of terminating official relations. They may also come to an end by
virtue of a revolution.
By expiration of term of office.
Upon the expiration of the officer's term, unless he is authorized by law to hold over, his rights,
duties and authority as a public officer must ipso facto cease.
The word "term," when used in reference to the tenure of office, means ordinarily a fixed and
definite time prescribed by law or the Constitution by which an officer may hold an office.2 It
does not apply to appointive offices held at the pleasure of the appointing power. In expiration
of tenure, it is the right of the occupant himself to hold the office which is terminated. The non-
renewal of an appointment with or without cause at the end of the term of an appointee is a
valid mode of termination.3 No removal (infra.) is involved.
Term and tenure distinguished.
READ: INGLES VS MUTUC
(1) The term of office must be distinguished from the tenure of the incumbent. The "term" means
the time during which the officer may claim to hold the office as of right, and fixes the interval
after which the several incumbents shall succeed one another. It is a fixed and definite period of
time to hold office, perform its functions,6 and enjoy its privileges and emoluments until the
expiration of said period. It is not affected by holding- over (infra.) of the incumbent after
expiration of the term for which he was appointed or elected.
(2) The tenure represents the period during which the incumbent actually holds the office. It may
be shorter than the term for reasons within or beyond the power of the incumbent. 7
(3) Principle of holdover applicable. "If sustained, the effect of petitioner's contention is the
paralyzation of judicial functions in Occidental Mindoro. Obviously, the situation presented all
the elements which called for the principle of holdover to preserve the continuity in the
transaction of official business and the operation of the machinery of justice. (Duldulao v. Ramos,
91 Phil. 261 [1952].)
By resignation.
The right of a public officer to resign is well-recognized. It is even provided that an officer may
hold-over until election and qualification of a successor. One who gains an elective or
appointive public office is not legally committed to finish the term.
A resignation by definition is the formal renunciation or relinquishment of a public office.36 It
implies an expression by the incumbent in some form, express or implied, of the intention to
surrender, renounce, and relinquish his right to the office and its acceptance by competent and
lawful authority.37
Like removal for cause, voluntary resignation results in the abdication of all present and future
rights accorded to an officer or employee and in the severance of all work-related ties between
the employer and the employee.38
To constitute resignation of public office, there must be (1) an intention to relinquish a part of
the term, (2) accompanied by the act of relinquishment, and (3) an acceptance by the proper
authority. A resignation implies an expression of the incumbent in some form, express or
implied, of the intention to surrender, renounce, and relinquish the office. A written resignation,
delivered to the board or officer authorized to receive it and fill the vacancy thereby created, is
prima facie, but not conclusive evidence of the intention to relinquish the office. Such resignation
must be signed by the party tendering it.40
READ: ESTRADA VS DESIERTO
Misconduct in office.
One of the grounds for disciplinary action against an officer or employee in the Civil Service is
misconduct.213 (supra.)
Misconduct of a public officer or employee has been defined as "a transgression of some
established and definite rule of action more particularly, unlawful behavior or gross negligence
by the public officer."214 It is improper and wrong conduct and implies wrongful intent and not
mere error of judgment; corrupt, or inspired by an intention to violate the law or a persistent
disregard of well- known legal rules.215 Misconduct in office is defined as "one that affects the
officer's performance of his duties as an officer and not only as affects his character as a private
individual." In such cases, it has been said at all times, it is necessary to separate the character of
the man from the character of the officer.216
READ: PALMA VS FORTICH
By recall.
By this procedure, an elective official may be removed at any time during his term by the vote of
the people at an election called for such purpose or at a general election. Under the Constitution,
Congress is mandated to provide in the local government code an effective mechanism of recall
of local officials.418
READ: CLAUDIO VS COMELEC