ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y.
2015-2016
INTRODUCTORY CONCEPTS
PUBLIC OFFICE
NATURE OF A PUBLIC OFFICE
WHAT IS A PUBLIC OFFICE?
1987 Constitution, Article XI, Accountability of Public Officers
Section 1. 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.
Ferdie: “Public office is a public trust” that already encapsulates the essence of
public office. They have also highlighted some portions there it says “at all times”
because later we will know that when you are disciplined as public officer or has
unrelated functions as public officer, you cannot say that this is a private matter
or this is a private act and it has nothing to do with my job or performance as a
public officer.
That is not available as a remedy because it says at all times even when you step
out of the office after 5 o’clock, you are still a public officer accountable to the
people. Then we have “with utmost responsibility, integrity, loyalty, and efficiency
(RILE), act with patriotism and justice and lead a modest life. Lead a modest life;
in the context of the word means to live a simple and humble life.
“Public office is a public trust”
Cornejo v. Gabriel
1. It is created in the interest and for the benefit of the public.
2. The officers are public servants.
3. They are mere agents and not rulers of the people.
4. As such, they have no contractual or proprietary right to an office.
5. They merely hold it in trust for the people.
Ferdie: Cornejo v. Gabriel is a classic case in so far as public officers are
concerned. Take note that it says there is no contractual or proprietary right to an
office. You do not own the office you occupy and it says you are merely holding it
in trust for the people or otherwise intended to be transient; power is and should
be temporary.
"At all times be accountable to the people”
Social Justice Society v. DDB
Facts: Random drug test on private and public employees was
challenged as unconstitutional because it violates the right of privacy.
Held: For private employees, their right to privacy is inferior to the right
of the employer to maintain discipline and efficiency in the work place.
If so, with more reason that civil servants cannot invoke the right to
privacy because by constitutional command, they are required to be
accountable at all times to the people and serve them with utmost
responsibility and efficiency.
Ferdie: This is about private employees in the private sector and if the ruling of
the SC says it cannot invoke the right to privacy vis-a-vis the power of the employer
to discipline, with more reason that in the government service you cannot invoke
the right to privacy. This case was joined/consolidated with Pimentel v. Comelec.
Basically, they are the same.
"Utmost responsibility, integrity, loyalty and efficiency" (RILE)
Concerned Citizens of Laoag City v. Arzaga
Thus, an employee may be dismissed for being notoriously undesirable
even if it involves private and personal acts.
Ferdie: Take note here that we are talking about notoriety. Later we are going to
discuss that it does not even require that for you to be dismissed on the basis of
notoriety, it has to be a criminal conviction. It is not necessary. Bottom line mere
perception can be a ground for dismissal provided it passes the two fold test.
As a public servant, a court employee must exhibit the highest sense of
honesty and integrity not only in the performance of his official duties
but also in his private dealings with other people to preserve the court's
name and standing.
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Ferdie: In this case, this guy wanted to peddle influence and he wanted to make
an impression that he can fix things for others inside the court. So it was his
reputation, he was notorious for that and it was a ground for his dismissal.
Conviction of criminal offenses is not even necessary for
removal
San Luis v. CA
Notoriety and habit are sufficient ground for removal pursuant to the
two – fold test:
1. Whether it is generally known as universally believed to be true or
manifest to the world that the public officer committed the acts
imputed against him.
2. Whether he had contracted the habit for any of the enumerated
misdemeanours.
Ferdie: Take note of notoriety and habit. If these concur, you can be removed
from public service even if there is no criminal conviction. It is a matter of
perception.
Purpose of discipline
Remolona v. CSC
Dishonesty as ground for dismissal need not be committed in the
performance of duty.
Ferdie: Even in your private views that can be a ground; you cannot say it is
private there is nothing to do with your job, still go back to what the constitution
says “at all times be accountable to the people.” So even if you are sleeping at
night, you are still a public officer.
If a public officer or employee is dishonest or is guilty of oppression or
grave misconduct, he or she may be dismissed.
Ferdie: Take note it qualifies misconduct as grave, if misconduct only, then
probably suspension or reprimand but if it is grave misconduct then it can be a
ground for dismissal.
Even if said defects of character are not connected with his or her office,
they affect his or her right to continue in office. The purpose of discipline
is not to punish, but to improve public service and preserve public
confidence in government.
But a resigned public officer cannot be subject to discipline
because it does not serve its purpose
Ombudsman v. Andutan
It is error to interpret CSC MC No. 38 that administrative case may be
filed against a resigned public officer for as long as the act complained
of was committed in service. Otherwise, public officers who have long
been separated from service may still be the subject of administrative
cases.
Ferdie: This is to give peace of mind to the separated public officer.
This defeats the purpose of discipline, which is not to punish, but to
improve public service and preserve public trust in government.
Ferdie: First premise is you have administrative liability because you want to
discipline, improve public and service, and also to bring back the public trust and
confidence in the government. So, if you are no longer with the government, that
purpose is no longer served unless the evidence of the case was filed and then
after filing you resigned or retired, the case will still continue. Otherwise, you will
be allowed to pre-empt or terminate the proceedings at your own convenience.
"Lead modest lives”
The point of the command is that, even if the public officer is
independently wealthy, he should not live in a manner that flaunts his
wealth. (Bernas)
Ferdie: Don’t show off. “Independently wealthy” means that the employee’s
wealth comes from sources outside the government. There are 2 reasons for
corruption, it is either need or greed; ex. Napoles. “What is in excess of what
you need is not yours.”— Atty. Gujilde.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Public office as defined by Mechem
A public office is the right, authority and duty created and conferred by
law which for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with sovereign
functions to be exercised by him for the benefit of the public.
Ferdie: There’s no fixed term of office. It is either fixed by law or at the pleasure
of the appointing authority. “Sovereign functions” – intended for public benefit.
Sovereign function or the performance of sovereign function is the controlling
factor to decide whether or not one is a public officer which will be discussed later.
"Enduring at the pleasure of the creating power”
Fernandez v. Ledesma
If the term of office for which the chief of police was appointed is not
fixed pursuant to the city charter, it is dependent upon the discretion
or pleasure of the appointing power.
Thus, the chief of police may be replaced and such replacement does
not amount to removal but expiration of his tenure. It is one of the
ordinary modes of terminating official relations.
Ferdie: This is an old case, before chief of police has no fixed term and is
dependent on the appointing power. Now, chief police has security of tenure. Point
of the case is that if one is appointed at the pleasure of the appointing authority,
the term of office depends upon the liking of the person appointing. Example, if
the appointing authority losses confidence on you, that is not termination, it is
expiration of the term of office.
"Sovereign functions to be exercised by him for the benefit of
the public"
Laurel v. Desierto
Chairmanship of the National Centennial Commission to take charge of
the centennial celebrations.
Ferdie: In this case, there were charges of corruption against Laurel. His defense
there was the NCC is temporary in nature and he is not a public officer. The SC
said Laurel is still a public officer because he was tasked to perform sovereign
functions and that it was for the benefit of the public.
Javier v. Sandiganbayan
Appointment as private sector representative to the National Book
Development Board which is aimed to promote continuing development
of the book publishing Industry.
Ferdie: Take note he was appointed as private sector representative but the SC
said that he is still a public officer because it is still for the benefit of the public
and the book publishing industry.
Serana v. Sandiganbayan
Appointment as student regent at the University of the Philippines
performing general administrative supervision & exercising corporate
powers.
Ferdie: She became University Student Council of UP and she had a seat in the
Board of Regents and she can vote and participate in the deliberation. Her defense
was she cannot be a public officer because she is a mere student; she pays the
tuition and did not receive salary from BoR. SC said she was vested with sovereign
functions and is a public officer for purposes of the Sandiganbayan acquiring
jurisdiction over her person.
ELEMENTS OF A PUBLIC OFFICE
State v. Hawkins
1. It must be created by law or an ordinance authorized by law.
2. It must be invested with some sovereign functions of government
to be exercised for public interest
3. The functions must be defined, expressly or impliedly by law
4. The function must be exercised directly by an officer directly
under the control of the law
5. It must have some permanency or continuity, not temporary or
occasional.
2|U N I V E R S I T Y O F S A N C A R L O S S L G
Ferdie: Take note of number 2, that’s a controlling test. Take note also of number
5 because in the Laurel case, this was used as a defense, i.e. the NCC was
temporary in nature. SC still considered it as public office because he was
performing sovereign functions.
CHARACTERISTICS OF A PUBLIC OFFICE
CHARACTERISTICS OF A PUBLIC OFFICE:
1. Public office is a public trust
2. No one has a vested right to a public office
3. Public office is not a property
4. Public office cannot be inherited
Public office is a public trust
Cornejo v. Gabriel
1. It is created in the interest and for the benefit of the public.
2. The officers are public servants.
3. They are mere agents and not rulers of the people.
4. As such, they have no contractual or proprietary right to an office.
5. They merely hold it in trust for the people.
General rule: No one has a vested right to a public office.
Carabeo v. CA
A public officer cannot claim injury if placed under preventive suspension
because he has no vested or absolute right to a public office.
Ferdie: Otherwise stated, if you are a public officer and you got preventively
suspended you cannot say I suffered damages thus I am to be awarded with
damages—you cannot do that because there is no basis, the office you occupy is
not yours in the first place.
Cornejo v. Gabriel
Suspension of a public officer without prior notice and hearing does not
violate due process because he has no proprietary or contractual right
to it.
Fernandez v. Sto. Tomas
More so if the appointment does not specify the station, the employee
may be re- assigned if exigency requires, provided it does not reduce
rank, status or salary.
Ferdie: For us election officers, for example my designation appointment is very
specific as election officer of Mandaue City. But some of us are election officers of
the Commission on Elections, in which case, regardless whether the appointment
specifies the station, we can be reshuffled, re-appointed or re-assigned
somewhere else if the exigencies of public service require. One cannot say that he
cannot be transferred because his item says that he has to be in Mandaue City.
This is not available as a defense because your station does not belong to you.
Except: If the terms of the law that takes it away is unclear.
Segovia v. Noel
Facts: Segovia is appointed Justice of the Peace. But later, a law was
passed that justices shall be appointed to serve until they reach 65 only.
When he reached 65, Noel replaced him.
Held: The law must be applied prospectively only. Even if he has no
vested right to the office, he has some right that cannot be taken away
by law which terms are unclear.
General rule: Public office is not a property.
Abeja v. Tafiada
Facts: During pendency of an election protest, the protestee died. He
was substituted by his widow to pursue his counterclaim for damages.
Held: The substitution is not proper. Public office is personal to the
incumbent and is not a property which passes to his heirs.
Ferdie: This should not be confused with the election law that allows substitution
of candidates. Candidates are not yet public officers. Also, the case was in the
pursuit of counterclaim for damages. This cannot be done because public office is
not a property.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Cornejo v. Gabriel
Facts: A municipal president was suspended by the governor while his
administrative case for misconduct was pending without opportunity to
be heard.
Held: Prior notice and hearing is not a requisite to suspension because
the holder has no proprietary and contractual interest on a public office.
Except: When the issue is which of the two persons is entitled
to the public office.
Segovia v. Noel
In which case, a public office may be considered property within the
protection of the due process clause. That if one is deprived of title to
the office, it should be properly litigated before the courts.
Public office cannot be inherited
Abeja v. Tafiada
Facts: During pendency of an election protest, the protestee died. He
was substituted by his widow to pursue his counterclaim for damages.
Held: Substitution is not proper. Public office is personal to the holder
and is not a property that can be inherited by his heirs.
PUBLIC OFFICER
DEFINITION OF PUBLIC OFFCER
ANTI-GRAFT & CORRUPT PRACTICES ACT
"Public officer" includes elective and appointive officials and employees
permanent or temporary, whether in the classified or unclassified or
exemption service receiving compensation, even nominal, from the govt.
Ferdie: Take note it says receiving compensation, so seemingly in that definition
you can say that as long as he receives something from the government you are
a public officer.
Serana v. Sandiganbayan
Facts: A student regent charged with estafa argues that she is not a
public officer because she is a mere student who paid her tuition and
did not receive salary as such.
Held: Compensation is not essential to a public office, but a mere
incident to it.
Ferdie: Whether or not one is receiving compensation is not essential. What is
important is the performance of sovereign functions.
Laurel v. Desierto
Facts: Laurel chaired NCC to take charge of the National Centennial
Celebrations. He was charged with graft and corruption due to
contractual anomalies. He argues he is not a public officer because he
did not receive salary as such which is a characteristic of a public officer.
Held: While salary is a usual criterion to determine the nature of the
position, it is not necessary because it is a mere incident and forms no
part of the office.
MECHEM
“An individual with a public office.”
ADMINISTRATIVE CODE OF 1987
Officer
As distinguished from clerk or employee, refers to a person whose
duties, not being of a clerical or manual nature, involves the exercise of
discretion in the performance of the functions of the government.
When used with reference to a person having authority to do a particular
act or perform a particular function in the exercise of governmental
power, officer includes any government employee, agent or body having
authority to do the act or exercise that function.
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Ferdie:
1) Officer, as distinguished from clerk or inferior employee, performs
discretionary acts (you can decide either way and would still be right)
2) You are a public officer as long as you perform sovereign functions
Employee
When used with reference to a person in the public service, includes any
person in the service of the government or any of its agencies, divisions,
subdivisions or instrumentalities.
Ferdie: Contractual employees or casual employees don’t have employee-
employer relationship with the government even if they receive compensation.
ARTICLE 203, REVISED PENAL CODE
Public officer
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 any of its branches public duties as an employee,
agent or subordinate official, of any rank or class. "
Ferdie: Regardless of the position even if probably you are a utility, for so long as
you were considered as public officer (regardless of status and rank).
ELEMENTS OF A PUBLIC OFFICER
ELEMENTS OF A PUBLIC OFFICER
To be a public officer, one must be:
1. Taking part in the performance of public functions in the
government, or performing in said government any of its branches
public duties as an employee, agent, or subordinate official, of any
rank or class, and
2. That his authority to take part in the performance of public
functions or to perform public duties must be by:
a) Direct provision of law
b) Popular election and
c) Appointment by competent authority
Ferdie: Common denominator for all definitions: For as long as one performs
sovereign functions, he is a public officer.
General rule: Delegation of sovereign functions is the most
important characteristic of a public office
Laurel v. Desierto
Facts: Laurel chaired the NCC. He was charged with graft and corruption
for contractual anomalies he entered into as such. He argues he is not
a public officer because the NCC is a private and temporary office, he
was not paid salary for it, and did not take his oath of office.
Held: Even if the other characteristics are missing, he is still considered
public officer because he was delegated with sovereign functions, the
controlling characteristic of a public office.
Except: When in the first place, there is no authority to appoint
a private person as public officer.
Azarcon v. Sandiganbayan
Facts: Azarcon was designated by the BIR as custodian of disdained
property, one of which was a truck that suddenly disappeared. He was
charged before the Sandiganbayan which jurisdiction he now assails for
being a private person.
Held: Azarcon is a private person. While the NIRC authorizes designation
of a custodian, it does not include the power to appoint him as a public
officer.
Ferdie: If there is no authority to appoint you, your employment in the
government is void from the very beginning, in which case, you cannot be
considered a public officer.
In this case, the authority is only to designate a custodian and not to appoint.
Designation is different from appointment and we know that already in Election
Law (Prohibition on Appointment during Election Period)
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Exception to the exception: When a private person is charged
as co-principal, accomplice or accessory of a public officer
charged with a crime under the jurisdiction of the
Sandiganbayan.
Go v. Sandiganbayan
Facts: Go is Chairman of PIATCO. He was charged in conspiracy with a
public officer in violating Section 3(g) of the Anti-Graft and Corrupt
Practices Act. Go says Section 3(g) does not apply to him because he
is not a public officer but a private person who could not enter into a
contract in behalf of the government.
Ferdie: Our premise is this, for as long as you perform sovereign functions you
are a public officer. The exception is when there is no authority to appoint you
which means you are a private person. But here what we are saying is even if you
are purely a private person you can be considered a public officer if the exception
to the exception is attendant to the case.
The elements of Section 3(g) are that:
1. The accused is a public officer
2. That he entered into a contract or transaction in behalf of the
government
3. It is grossly and manifestly disadvantageous
Held: When a private person is charged with conspiracy with a public
officer, either as co-principal, accomplice or accessory, he is also
considered a public officer for purposes of acquiring jurisdiction over his
person by the Sandiganbayan.
KINDS OF PUBLIC OFFICER
KINDS OF PUBLIC OFFICER
A. Executive officers — those whose duties are mainly to cause the
laws to be executed.
B. Legislative officers — those whose duties relate mainly to the
enactment of laws.
C. Judicial officers — those whose duties are to decide
controversies between individuals and accusations made in the
name of the public against persons charged with violation of a law.
D. Ministerial officers — those whose duty is to execute the
mandate, lawfully issued, of their superiors.
E. Military officers — those who are in command in the army.
F. Naval officers — those who are in command in the navy.
G. Civil officer — one who holds his appointment under the
government, whether his duties are executive or judicial, in the
highest or the lowest departments of the government, with the
exception of officers of the army and the navy.
H. Special agent — one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office.
I. Officer De Jure — one who has the lawful right to the office in all
respects, but who has either been ousted from it, or who has never
actually taken possession of it.
J. Officer De Facto — one who has the reputation of being the
officer he assumes to be, and yet is not the officer in point of law.
K. National officers — those who render service for the national
government.
L. Provincial officers — those who render service for the provincial
government.
M. City and Municipal officers — those who render service for the
city and municipal governments, respectively.
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REQUISITES TO BE CONSIDERED A DE FACTO OFFICER
1. Necessity of office
There must be a created office. No de jure or de facto officer
without the office to fill.
2. Color of title or general recognition and reputation
a) May consist in election or appointment
b) Holding office after expiration of term
c) Acquiescence by the public in the acts of officer for such
length of time as to raise presumption of colorable right
3. Physical possession
Ferdie: For the elective officials who were unseated, the period of their
incumbency prior to being unseated was the time when they are considered de
facto officer.
General rule: The de facto officer is entitled to compensation.
Sampayan v. Daza
Facts: Sampayan and other residents sought to disqualify Daza as
Congressman because he is a green card holder. But his term of office
already expired prior to his disqualification.
Held: A de facto officer cannot be made to reimburse funds and salaries
because his acts are valid as those of a de jure officer. He is also entitled
to emoluments for actual services rendered.
Ferdie: A de jure officer, who is declared as the rightful winner, cannot ask for
reimbursement for his salary because he did not work in the first place. It is the
de facto officer who is entitled to compensation at the time prior to his being
unseated.
Except: Where there is a sitting de jure officer.
General Manager of PPA v. Monserate
The general rule is where there is a de jure officer, the de facto officer
is not entitled to emoluments attached to the office during his wrongful
incumbency even if he occupied it in good faith.
But where the de jure officer assumed the lower position in protest, she
is entitled to salary but limited to back pay differentials to avoid double
compensation.
Ferdie: In this case, the protestant gave way and occupied a lower position. Later,
she was declared the rightful winner. She cannot be given the entire salary that
was received by the de facto officer. She is only entitled to the difference between
the salary for the contested position and salary received by de jure officer while
occupying the lower position. Otherwise, it will result in double compensation.
ELIGIBILITY AND QUALIFICATIONS OF PUBLIC OFFICERS
QUALIFICATIONS
QUALIFICATIONS
What is meant by qualification?
Endowment that fits one for office or acts which a person is required by
law to do before assuming office like oath taking. There must be rational
connection between requirements and duties.
Ferdie: Remember our lesson in so far as the temporary vacancy of the start of
office is concerned for the President and Vice president? One of the causes of
temporary vacancy is when the President fails to qualify. It means he did not take
the oath of office therefore he cannot assume office. This failure to qualify does
not pertain to a situation where there is a disqualification case and it became final.
But, of course, this doesn’t happen because they always take their oath of office.
Who prescribes Qualifications?
Congress prescribes eligibility, qualifications, and disqualifications and
provide for methods of filling offices, subject to constitutional limitations.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Ferdie: Take note that there are other offices whose qualifications are prescribed
not under the law but by the rules and regulations promulgated by the government
agency tasked to fill in the gap of the law and that is called Subordinate Legislation.
When there is an organic law, Congress is not expected to anticipate each and
every detail that might happen with actual implementation or enforcement. That
is why the government agency is authorized by Congress to fill in in the gap or to
complete the law and at the same time make sense or make it practicable for
proper enforcement.
GENERAL QUALIFICATIONS
A. Citizenship
Only citizens can apply or take civil service examinations. Aliens
cannot hold office, either appointive or elective.
B. Residence
Synonymous with domicile. Imports (1) intention to reside in one
place, (2) personal presence in that place and (3) conduct
indicative of such intention
C. Residence
President and VP – Resident of the Philippines for at least 10 years
immediately preceding the elections
Senator – Resident of the Philippines for at least 2 years
immediately preceding the elections
D. Age
President and VP - 40
Senator – 35
E. Education
For appointive positions only
F. Civil Service
Required in appointive positions
TIME OF POSSESSION OF QUALIFICATIONS
When should a public officer possess these qualifications?
It depends upon the Constitution or statute. But generally, at the time
of election, appointment or assumption
If qualification is not specified with reference to the time of elections, it
refers to qualification to hold office rather than to be elected to it. Thus,
disqualification existing at the time of election may be removed before
induction to office or before the term of office begins.
Ferdie: This pertains to Frivaldo case but as discussed before, it will take another
Frivaldo for the application of that case. Meaning, only if all facts are on all fours
can the doctrine be applied.
Citizenship is required only at the time of proclamation.
Frivaldo v. Comelec
Facts: Frivaldo won as governor but was disqualified by Comelec for
being an alien. Thus, Lee was proclaimed at 8:30pm on June 30, 1995.
But at 2pm of the same day, Frivaldo re-acquired his Philippine
citizenship through repatriation.
Contention of Lee: Even if Frivaldo re-acquried his citizenship, he is still
disqualified because citizenship is a condition precedent to the filing of
candidacy.
Held: Citizenship is required only at the time of proclamation and at the
start of term of office.
Ferdie: In the case of Frivaldo, it might have been articulated already the fact
that you can’t cancel your candidacy if you lied about your qualification as to
citizenship. But again Frivaldo doctrine is applicable provided the same
circumstances peculiar to that case can be repeated in the future.
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QUALIFICATIONS FOR PRESIDENT
Article 7, Section 2, 1987 Constitution
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.
QUALIFICATIONS FOR VICE-PRESIDENT
Article 7, Section 3, 1987 Constitution
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.
The Vice-President may be appointed as a Member of the Cabinet. Such
appointment requires no confirmation.
QUALIFICATIONS FOR HOUSE REPRESENTATIVE
Article 6, Section 6, 1987 Constitution
No person shall be a Member of the House of Representatives unless he
is a natural-born citizen of the Philippines and, on the day of the election,
is at least twenty-five years of age, able to read and write, and, except
the party-list representatives, a registered voter in the district in which
he shall be elected, and a resident thereof for a period of not less than
one year immediately preceding the day of the election.
Qualifications are provided for by the Constitution and cannot
be added by mere legislation
Pimentel v. Comelec
Facts: Section 36(g) of the Dangerous Drugs Act of 2002 requires all
candidates for public office whether appointed or elected both in the
national or local government to undergo a mandatory drug test.
The Commission on Elections issued a resolution prescribing the rules
and regulations on the mandatory drug testing of candidates for public
office in connection with the May 10, 2004 national and local elections.
It further says no person elected to any public office assumes office
without mandatory drug test.
Contention of Petitioner: Pimentel, a candidate for senator, says the law
and resolution are unconstitutional because they add to the senatorial
qualifications set forth in Article 6, Section 3, 1987 Constitution.
Held: Section 36(g) of the Dangerous Drugs Act of 2002 and Comelec
Resolution No. 6486 are both unconstitutional because they infringe on
the constitutional definition of qualification or eligibilty requirements of
senatorial candidates.
Property qualification is contrary to the Constitution
Maquera v. Borra
Facts: RA 4421 requires all candidates to post surety bond equivalent to
1 year salary of the position sought. Thus, the Comelec required
candidates for President, Vice-president, Senators and Congressmen to
post surety bond from a surety company acceptable to it in the amount
of P60,000, P40,000 and P32,000, respectively.
Held: It constitutes property qualification which is contrary to the
Constitution. It is inconsistent with the Republican system and the
principle of social justice.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
DISQUALIFICATIONS
DISQUALIFICATIONS
A. Conviction of the crime of malversation of public funds
B. Impeachment
Ferdie: If you are impeached, you cannot return to public service because
impeachment carries with it an accessory penalty of perpetual
disqualification to hold public office.
C. Congress cannot add disqualifications than what is provided for in
the Constitution
D. Property in the form of cash bond (Maquera v. Borra)
E. Lifestyle in the form of negative drug test (Pimental v. Comelec)
EFFECTS OF PARDON UNDER THE RPC
Article 36. Pardon
A pardon shall not work 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. A pardon shall in no case exempt the culprit from
the payment of the civil indemnity imposed upon him by the sentence.
Ferdie: Even if there is pardon, the civil damages shall be paid for by the one
pardoned. In Estrada case, it was found that the pardon granted by Arroyo to
Estrada was absolute and he accepted the terms and conditions. That’s why
Estrada was able to run for mayor and not for re-election.
General rule: Pardon does not automatically reinstate, it merely
restores eligibility for appointment.
Monsanto v. Factoran
Facts: An Assistant Treasurer was convicted for estafa and ordered to
pay at least P4,000. She moved to reconsider her conviction during
which she was extended absolute presidential pardon which she
accepted.
She thus argued that the pardon wiped out her crime and she should be
reinstated without need to re-apply and be paid full back wages. She
also refused to pay the fine.
Held: Pardon does not ipso facto restore a convicted felon to the office
necessarily relinquished or forfeited by reason of conviction although it
restores her eligibility for appointment to that office. Pardon merely
removed her disqualification. She must re-apply. That her conviction did
not acquire finality when she was extended pardon is of no moment
because pardon presupposes a crime was committed.
Ferdie: If there is a criminal case, the accessory penalty is the forfeiture of public
office perpetually but if there is pardon that disqualification will be removed but it
does not necessarily follow that you’re going to be reinstated right away to your
position that was forfeited by reason of the criminal conviction. So back to zero,
you must re-apply.
The fact that she was extended the pardon and she accepted it presupposes that
a crime was committed. Even without the finality or the case is still pending, the
extension of pardon and the act of accepting it, already presupposes that there
was a crime.
Bottom line: If there is pardon, it does not give you automatic right to get back to
your position that was forfeited by reason of conviction of an offense which carries
a penalty of forfeiture of public office.
Except: When acquittal is based on innocence.
Garcia v. COA Chairman
Facts: Garcia was administratively charged with dishonesty and
criminally charged with qualified theft due to loss of telegraph poles. But
he was acquitted based on innocence in the criminal case.
Held: if acquittal in criminal case is based on innocence, acquittal in
administrative case should follow. Thus, he should be reinstated and
paid back wages because the separation is void.
6|U N I V E R S I T Y O F S A N C A R L O S S L G
Ferdie: If the acquittal is based on innocence, you can get back to your previous
position. If it is a job order employee, it does not go to the CSC that is why there’s
no employee-employer relationship with the government but for casual employees
there is EE-ER relationship.
In the government, if you want to apply for a position, there is PSV (Personal
Selection Vote). In PSV, you’re interviewed, you have to take written exams, and
your credentials will be evaluated. But considering that it is the government,
“lutong macaw” ang process because many people are waiting in line inside the
organization to be appointed to a permanent position.
In the PSV, for example, there are 20 applicants and 10 of them achieved the
minimum grade, the appointing authority is going to choose who among the top
10 will be appointed to the position. He can choose the 10th, the 1st, or anyone
from the top 10. That is discretionary on the part of the appointing authority. What
is the role of CSC then? To be discussed in next case.
FORMATION OF RELATIONS
BY ELECTION AND APPOINTMENT
BY APPOINTMENT
Authority of the CSC to approve appointment is limited to
inquiry.
Central Bank v. CSC
Facts: The CSC voided the appointment of Jordan and replaced him with
Borja who it considers more qualified.
Held: The authority of the CSC is limited to determine whether the
appointee possesses appropriate civil service eligibility and other
qualifications because the authority to inquire qualification does not
include the power to replace the choice of the appointing authority as it
constitutes encroachment.
Ferdie: Bottomline: The choice of the appointing authority provided he/she
possesses the minimum qualifications should not be disturb by the CSC because
his duty is limited to whether or not the appointee possesses the minimum
qualification. So even if seemingly it appears that somebody else in qualified, it
cannot replace the judgment and wisdom of the appointing authority.
Even if there is evidence one possesses better qualification
than the other.
Lapinid v. CSC
Facts: The CSC replaced Lapinid with Junsay because the comparative
evaluation sheets show Lapinid got 75 while Junsay got 79.5.
Held: Appointment is discretionary on the part of the appointing
authority. The authority of the CSC is limited only to inquire whether the
appointee possesses qualifications required by law. If the appointee
does possess, the CSC has no other choice but approve the
appointment.
Ferdie: If one does not possess the qualification at the time of the appointment,
the CSC must disapprove the appointment. Example, if the minimum qualification
for a position of public office says law graduate and there are two choices – the
bar topnotcher and the law graduate who failed the bar. If the latter was the one
appointed by the appointing authority, can CSC replace? No because he possesses
the minimum qualification and CSC cannot replace the judgment and wisdom of
the appointing authority.
Luego v. CSC
The duration of authority of the CSC terminates after the inquiry. If the
CSC finds the appointee is qualified, it must approve. Otherwise, it
disapproves. There is no middle ground.
It becomes functus officio—an officer or agency whose mandate ended
because the date expired and the purpose for which it was created was
accomplished. It mostly refers to lack of authority to rehear a case after
it has rendered judgment; they are “void of office”.
Ferdie: Just like the acceptance of COC. Once accepted, the function of the
COMELEC officer ends there.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
General rule: Appointment and Designation are separate and
distinct.
Sevilla v. Santos
Facts: Sevilla was an engineer of one city, but he was also designated
Acting City Engineer of another city. Later, another was appointed in a
permanent capacity to the position he was designated.
Issue: Can he challenge the permanent appointment?
Held: No. His designation in an acting capacity merely added his
functions. It does not confer security of tenure. This is the distinction
between appointment and designation.
Except: When the appointment is used in its general sense, it
includes designation
Santiago v. COA
Facts: A retiree wanted to base his retirement benefits on a designated
position because the salary is higher.
Held: The law that sets the highest basic salary rate as basis for
computation did not intend to distinguish between appointment and
designation. Because it includes the highest salary rate compensation
for substitutionary services or in an acting capacity.
Ferdie: This is the exception. The general rule is that retirement clause should be
construed in favour of the retiree to afford humanitarian consideration.
ASSUMPTION AND TERM OF OFFICER
DOCTRINE OF HOLDOVER CAPACITY
DOCTRINE OF HOLDOVER CAPACITY
Term of office of a local elective official can’t be extended by a
mere ordinary legislation because no less than the Constitution
provides for it except for barangay and SK officials.
Abas Kida v. Senate
Facts: Congress passed a law for the synchronization of the ARMM local
elections with the national elections in May. ARMM have local elections
every August and the term ends on November. It was proposed that the
August ARMM elections will be suspended in order to synchronize it with
May national elections. So end of term November but next election is
May. The period in between is the issue in this case. Are they going to
extend the term of the incumbent? If not who will take care of ARMM?
Issue:
1. Whether Congress is empowered to change the schedule of the
ARMM local elections to synchronize with the national elections.
2. Whether the holdover capacity is constitutional.
3. Whether President is empowered to appoint OICs.
Held:
Whether Congress is empowered to change the schedule of the ARMM
local elections to synchronize with the national elections
Yes. The synchronization of ARMM elections with national and local
elections is necessary. Congress has capacity to synchronize elections.
Confronted with the gap between November which is the end of term of
ARMM officials and May schedule of national elections, the court
discussed the following options of Congress:
Whether the holdover capacity is constitutional.
No. Holdover is unconstitutional. The Constitution expressly provides for
the term limit of 3 years for the elective local public officers except the
barangay and SK officials. There is no way the court can choose this
option since it is the Constitution itself which fixed the period to 3 years
and it cannot be amended by mere legislation.
7|U N I V E R S I T Y O F S A N C A R L O S S L G
The term limit of the incumbent officials will be shortened - Court said
that it is not allowed also since the Constitution expressly provides for
the 3-year term limit and it can’t be reduced or lengthened by a law.
Holdover capacity – Incumbent official will have his term extended until
the time the ARMM election is held.
Whether President is empowered to appoint OICs.
Yes. The court finds this permissible under the Constitution. The
President has the power to appoint if there is a law vesting authority to
the President. The power of the President to appoint OIC is found in the
law on synchronization that the Congress enacted.
Ferdie: During Cory Aquino’s time after the revolution she appointed OIC all over
the country and those elected officials whose term has ended refused to step down
because they said that they were elected by the people. But the Constitution
provides for a term limit.
Once it has ended, they can’t stay unless re-elected. Since there was no election
because it was a revolutionary government, the President appointed OICs. That
time alone it can be inferred that the President has power to appoint in case term
of office has ended and no one replaces the incumbent.
POWERS, DUTIES, PRIVILEGES AND PROHIBITIONS
SOURCES OF POWER
SOURCES OF POWER
A. Article II, 1987 Constitution
B. Declaration of principles and state policies.
C. Section 1. The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority
emanates from them.
Ferdie: The government derives power from the people as provided in the
Constitution which says that “all government authority emanates from them”. This
applies to both elected and appointed officials. The source of power is the PEOPLE.
SCOPE OF AUTHORITY
SCOPE OF AUTHORITY
Doctrine of necessary implication
Scope of authority includes all powers necessary for the effective
exercise of express powers pursuant to the doctrine of necessary
implication.
Lo Cham v. Ocampo
Facts: A lawyer, also a doctor, from the medico legal division of the DOJ
was detailed by the justice secretary to assist the city fiscal with the
same powers and functions of an assistant city fiscal. He investigated,
signed and filed Information sheets.
The respondents moved to quash on the ground of lack of authority on
the ground that the person who conducted such had no authority to do
so, he was not a fiscal and he was just assigned to assist.
Issue: Whether the Lawyer had authority to investigate, sign and file
information sheets.
Held: The power to investigate, file and prosecute criminal cases is
inherent in the right to assist. The duties of a public office include all
those:
1. Which truly lie within its scope;
2. Essential to accomplish the main purpose of the office;
3. Relevant to accomplish the main purpose even if they are merely
incidental and collateral.
If the law does not prohibit specific acts, all related acts may be
performed pursuant to the doctrine of necessary implication.
Ferdie: Under the Revised Administrative Code, the Secretary of Justice can
appoint and assign any person qualified to assist the fiscal in his duties and at the
same time exercise powers of the Attorney General. The power given to the
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
assignee is so broad that it must carry all the necessary powers in order to conduct
an effective exercise of function. Since the fiscal investigates, files and prosecutes
criminal cases, it follows that the assignee has the capacity to do acts necessary
for the accomplishment of fiscal’s tasks. Using the doctrine of necessary
implication, if it is not prohibited then it follows that it is allowed.
The problem in the case is that the authority in writing only says that the lawyer
is detailed to assist the city fiscal. There was no mention whether by assisting, he
will also be allowed to investigate, file and sign information and prosecute criminal
case. Applying the doctrine of necessary implication and inferences, such functions
are collateral and incidental matters that are necessary to the effective
performance and exercise of the main task assigned even if not expressly written.
Rule: Even if it’s not expressly stated in the authority for as long as it is incidental,
collateral, necessary and germane to the purpose, it is allowed,
Limitation: Provided that there is no express prohibition.
Doctrine of necessary implication is equivalent to common sense and
there is no need to expressly provide the authority.
Q. Had it not been lawyer who was detailed, can the doctrine of
necessary implication be invoked?
No. Under the law, one can never be a prosecutor if he is not a lawyer.
In one BIR case, the custodian of escheated property was designated
but there was no power to designate in the 1st place. Here, there is no
authority to detail a non-lawyer to assist the prosecutor. You can only
assist a prosecutor if you are a lawyer also.
KINDS OF AUTHORITY
KINDS OF AUTHORITY
A. Discretionary
One where the law imposes a duty upon a public officer and gives
him the right to decide how and when the duty shall be performed.
Asuncion v. Yriarte
Discretion is a faculty conferred upon a court or other official by
which he may decide the question either way and still be right.
B. Ministerial
One where its discharge by the officer concerned is imperative and
requires neither judgment nor discretion on his part.
Example: Filing of CoC. However, even if ministerial, Comelec
would still need to verify if it was complete, signed and notarized.
General rule: A discretionary act cannot be compelled by
mandamus.
Aprueba v Ganzon
Facts: A stall was ordered closed by the mayor due to arrears and
violations such as failure to comply with health requirements. The stall
owner paid the arrears and complied with conditions but the mayor still
refused to re-open.
Aprueba and Modo filed a petition for mandamus to compel the mayor
to allow them to operate their stalls. Petitioners said it was done by the
mayor in retaliation due to their refusal to side with the mayor in the
campaign. Petitioners incurred losses due to the closure. Mayor claimed
that he cannot be compelled by mandamus because such act is within
his sound discretion. And even if mandamus will lie, still he won’t grant
it because Aprueba violated a city ordinance in subleasing his place to
Modo.
Held: The mayor cannot be compelled because the grant of business
licenses is a discretionary act on his part in the exercise of police power
and for reasons of public policy and sound public administration.
Mandamus will not lie because it is within the sound discretion of the
mayor to grant or not grant the license to operate.
Mandamus is not the proper remedy. Petitioners’ recourse is through a
civil case, particularly specific performance.
8|U N I V E R S I T Y O F S A N C A R L O S S L G
Ferdie: Actually in this case, if you think about it, mandamus is allowed to compel
the doing of discretionary act because mandamus merely says “do it” but it should
not say “this is how you should do it” because if that is the case, it is outside the
province of mandamus. It is already certiorari which corrects discretion.
Exception: Where there is grave abuse of discretion, manifest
injustice, palpable excess of authority equivalent to denial of
settled rights and there is no other plain, adequate or speedy
remedy.
First Phil. Holdings v Sandiganbayan
Facts: A civil case between the PCGG and spouses Romualdez and their
dummies to recover shares of stock is pending with the Sandiganbayan.
A company intervened, claiming ownership of the shares. But the
intervention was denied because it will unduly delay the case, among
others.
Held: The grant of intervention is a discretionary act of the court that
cannot be compelled by mandamus. But since the company established
legal interest in the matter at litigation, the denial of intervention based
on flimsy grounds amount to grave abuse of discretion. As such,
mandamus lies against the discretionary act of granting or denying the
motion to intervene.
Ferdie: Motion to Intervene is discretionary upon the court, provided that the
granting or denying of said motion has legal basis. The only reason cited by
Sandiganbayan in denying the motion is that the intervention will unduly delay the
proceedings. Such reason was unacceptable to the Supreme Court. SC said that
they should allow the petitioner to intervene because it is incidental to the main
case pending. Ordinarily, mandamus will not prosper to compel a discretionary act,
except when there is:
1. Grave abuse of discretion;
2. Manifest injustice;
3. Palpable excess of authority equivalent to denial of settled rights; and
4. There is no other plain, adequate or speedy remedy
Important: The writ of mandamus here is issued to compel the
exercise of discretion, but not the discretion itself.
PROHIBITIONS FOR AND AGAINST PUBLIC OFFICERS
PROHIBITIONS FOR AND AGAINST PUBLIC OFFICERS
Article IX-B, 1987 Constitution, Section 2 (3)
1. No officer or employee of the civil service shall be removed or
suspended except for cause provided by law.
Ferdie: Equivalent to just and authorized causes in Labor law is “cause
provided by law” in government
2. No elective or appointive public officer or employee shall receive
additional, double or indirect compensation, unless specifically
authorized by law, nor accept without the consent of the Congress,
any present, emolument, office, or title of any kind from any
foreign government.
TN: Pensions or gratuities shall not be considered additional,
double, or indirect compensation.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
RIGHTS AND PRIVILLEGES OF PUBLIC OFFICERS
RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS
1. Right to office
2. Right to compensation
3. Presidential immunity from suit
4. Doctrine of official immunity
5. Preference in promotion
6. Leave of absence
7. Retirement pay
RIGHT TO OFFICE
RIGHT TO OFFICE
A. The right to office of an incumbent does not depend on any
contract.
B. It creates no contractual relation between holder and the public.
C. It exists by virtue of some law.
D. It generally entitles holder to compensation.
RIGHT TO COMPENSATION
RIGHT TO COMPENSATION
Salary — personal compensation provided to be paid for services, and it
is generally a fixed annual, or periodic payment depending on the time
and not on the amount of services rendered.
Salary v. Wages
Salary is given to officers of higher degree of employment than those to
whom wages are given.
Salary is interchangeably used with compensation.
How to establish right to compensation
The officer must show that he is the officer either by:
1. Lawful appointment
2. Election
3. Qualification
GM of PPA v. Monserate
The general rule is during incumbency, the de facto officer is entitled to
the emoluments attached to the office, even if he or she occupied the
office in bad faith. But where the officer de jure assumed a lower
position under protest, he is entitled to back pay differentials to avoid
double compensation.
Sampayan v. Daza
A de facto officer cannot be made to reimburse funds disbursed during
his term of office because his acts are valid as those of a de jure officer.
As a de facto officer, he is also entitled to emoluments for actual services
rendered, provided there is no sitting de jure officer.
Constitutional prohibitions on salaries Prohibition against self-
serving legislation (Congress)
Article VI, Section 10, 1987 Constitution
The salaries of Senators and Members of the House of Representatives
shall be determined by law. No increase in said compensation shall take
effect until after the expiration of the full term of all the Members of the
Senate and the House of Representatives approving such increase.
Prohibition against self-serving approval (President)
Section 6, Article Vll, 1987 Constitution
The President shall have an official residence. The salaries of the
President and Vice-President shall be determined by law and shall not
be decreased during their tenure. No increase in said compensation shall
take effect until after the expiration of the term of the incumbent during
which such increase was approved. They shall not receive during their
tenure any other emolument from the Government or any other source.
9|U N I V E R S I T Y O F S A N C A R L O S S L G
Prohibition against violation of independence (Judiciary and
Constitutional Commissions)
Section 3, Article IX-B, 1987 Constitution
The salary of the Chief Justice and of the Associate Justices of the
Supreme Court, and of judges of lower courts shall be fixed by law.
During their continuance in office, their salary shall not be decreased.
Section 3, Article IX-B, 1987 Constitution
Salary of the Chair & Commissioners of the Constitutional Commissions
shall be fixed by law and shall not be decreased during their tenure.
Ferdie: Congress can fix the salary but cannot decrease it. This refers to
compensation salary only. Benefits are not included, unless the benefit has been
there for a long period of time that you have already acquired rights over the
same.
Back wages are awarded for the period of suspension or
dismissal if it is unjustified and the employee is found innocent
of the charge.
CSC v Cruz
Facts: Employee was preventively suspended and later on dismissed for
grave misconduct and dishonesty. But he was found innocent of the
charges. The finding of dishonesty was downgraded to violation of
reasonable office rule for failure to record attendance which is
punishable by reprimand only.
Ferdie: CSC ruled that even if the statements were not true, the act did not
constitute grave misconduct. On the dishonesty charge, the employee was able to
establish that he is entitled to overtime pay since he actually rendered work but
due to his failure to log in and log out, he was reprimanded. CSC ordered
reinstatement but did not award back wages.
Issue: Whether respondent is entitled to backwages.
Held: Yes, the two conditions for award of back wages are met, to wit:
1. Innocence
2. Suspension or dismissal is unjustified.
Ferdie:
General rule: Public officials can only get payment for services which they rendered
Except: When the public official was illegally dismissed. One can be awarded with
backwages during the period of suspension when the following requisites concur:
1) Employee must be found innocent with the charges and
2) Suspension was unjustified
When there is complete exoneration of the charges, the 2nd criteria is already
subsumed. However when the exoneration of charges is relative in a sense that
the factual basis of the charges is still present (but only imposed with lower
penalty) the 2nd criteria must be strictly observed.
In this case, he was completely exonerated but he has a slight infraction. Court
said that if failure to record attendance was his only infraction, the suspension was
illegal.
PRESIDENTIAL IMMUNITY FROM SUIT
PRESIDENTIAL IMMUNITY FROM SUIT
The 1987 Constitution has not reproduced the explicit guarantee of
immunity under the previous Constitution. But presidential immunity
during tenure remains part of the law.
Purpose: To assure the exercise of presidential duties and functions is
free from any hindrance or distraction. The president must devote
undivided time and attention.
However: Once out of office, even before the end of term, presidential
immunity from suit is lost.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
This privilege may be invoked or waived by the president only.
Soliven v Makasiar
Facts: Cory Aquino filed a criminal case for libel against Beltran who
wrote she hid under her bed at the height of the coup d'etat. Beltran
argued she cannot file a criminal case during her incumbency because
presidential immunity from suit includes disability to sue.
Ferdie: If you do, then you are already waving your immunity from suit. Beltran
argues that if the President will file suit, she opens herself to counter damage suit.
Held: Privilege of immunity from suit pertains to the president alone by
virtue of the office and may be invoked only by the holder of the office
and not any other person in his or her behalf.
Right to immunity is a personal right to the President who can waive the
same. It cannot be raised as a defense in order to prevent the case from
proceeding nor the President be compelled not to waive it
Reason for presidential immunity from suit
It is to prevent the President from getting distracted during incumbency.
After his term, the immunity is lost, so cases may be filed against him.
If there’s no immunity during the term, the President will be constrained
to face the charges instead of attending to his functions.
DOCTRINE OF OFFICIAL IMMUNITY
DOCTRINE OF OFFICIAL IMMUNITY
A public officer, as long as he acted in good faith, even if he causes
damage to another, cannot be held personally liable out of the
performance of an official act pursuant to the doctrine of official
immunity.
Rationale: If the official will be held personally liable, he will be hesitant
to make decisions because of fear of incurring liability. Unless the official
is in bad faith, no liability attaches to him in the performance of his
official functions.
Error in good faith is covered by official immunity
Farolan v. Solmac
Facts: Imported film scrap was found to be an oriented fiber which
importation is prohibited. Customs officials withheld release, pending
advice from the Board of Investment which took years before it allowed
release. One of them was sued for damages because the delay cost the
importer business losses.
Held: The official is not personally liable because he acted in good faith.
Even if he erred, he is not liable because the damage did not result in
injury to the importer.
The officials cannot be held liable in the performance of its functions,
i.e. withholding the release of the product, because they enjoy
presumption of good faith and regularity in the conduct of its official
functions. Good faith, being a state of mind can be inferred from the
acts of the officials. In this case, the acts of the official which indicates
good faith are:
1. Relying on the expert opinion of DOST; and
2. Seeking the opinion of Board of Investment which was rendered
late and conflicting.
Ferdie: Because, in this case, there was an issue on the nature of the products:
whether they are prohibited, restricted, or allowed. The Commissioners were
justified on their refusal to release the products upon Solmac’s request because
the opinion sought did not guide the Commissioners properly.
Even if there is damage or losses caused arising from that performance of an
official function, damnun absque injuria (damage without injury) applies. As a
public officer, as long as he acted in good faith even if you cause damage to
another one cannot be held personally liable out of the performance of an official
act because they are covered with official immunity.
10 | U N I V E R S I T Y O F S A N C A R L O S S L G
Honest mistake in the interpretation of ordinance is covered
by immunity.
Tuzon v. CA
Facts: An ordinance authorized the treasurer to ask thresher operators
who apply for permit to donate 1% of all threshed palay. Thus, he
prepared an agreement. The operator who did not sign was refused
payment of license fee and renewal of permit. It turned out however
that the 1% is optional.
Held: They acted within their authority pursuant to their honest
interpretation of the ordinance. The error does not amount to bad faith
hence they are not liable for damages.
Ferdie: In this case, the mayor had an error in interpreting the ordinance. The
mayor thought that the 1% donation by thresher operators was mandatory. So,
those who did not give 1% donation were refused issuance of license. However,
it turned out that the 1% was only optional. Those who did not pay claim that they
incurred losses. The issue faced here is whether the mayor is personally liable.
Court said that the honest mistake committed by an official will not make him
personally liable for damage or losses which may result therefrom.
Q. What if the people who erred in the interpretation of the
ordinance were lawyers from San Carlos?
It may still be argued that even if they are lawyers, they are still
vulnerable in committing mistakes, provided that in committing the
same, there is good faith. So even if there is an honest mistake, they
cannot be held personally liable.
PREFERENCE IN PROMOTION
PREFERENCE IN PROMOTION
Taduran v. CSC
There is no mandatory nor peremptory requirement in law that persons
next-in- rank are entitled to preference in appointment. But they would
be among the first to be considered for the vacancy, if qualified. If the
vacancy is not filled by promotion, the same shall be filled by transfer or
other modes of appointment. This is known as the “Next in Rank rule”.
LEAVE OF ABSENCE
LEAVE OF ABSENCE
Right to vacation leave
A. At least 6 months continuous, faithful and satisfactory service
B. Entitles the employee to a 15-day vacation leave of absence with
full pay, exclusive of Saturdays, Sundays and holidays.
C. For each calendar year of service. (Secs. 284, 285, Rev. Adm.
Code as amended by R.A. 2625)
Ferdie: Vacation leave, when not used, can be monetized (cash
equivalent)
Right to sick leave in addition to vacation leave
A. At least 6 months continuous, faithful and satisfactory service
B. Entitles the employee to 15 days sick leave of absence with full
pay, exclusive of Saturdays, Sundays and holidays.
C. For each calendar year of service. (Sec. 285, Rev. Adm. Code as
amended by R.A. 2625)
D. On account of sickness of the employee or any member of his
immediate family.
Ferdie: Sick leave cannot be monetized even if not used; but may be
availed even if it was a member of the family who was sick
Pensions
Regular allowances paid to the retiree in consideration of services
rendered or in recognition of merit, civil or military.
Gratuity
A donation, an act of pure liberality of the State.
Ferdie: Pension is an act of justice while gratuity is an act of generosity.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
RETIREMENT LAW
RETIREMENT LAW
Construction of retirement laws
Santiago v. COA
Facts: A retiree wanted to base his retirement benefits on a designated
position because the salary is higher.
Held: The law that sets the highest basic salary rate as basis for
computation did not intend to distinguish between appointment and
designation. Because it includes the highest salary rate "compensation
for substitutionary services or in an acting capacity".
Retirement laws should be liberally construed in favor of the retiree
because they are intended to provide sustenance for the retiree, and
even comfort, when he no longer has the stamina to continue earning
his livelihood.
Ferdie: “In an acting capacity” – it includes designation. The law does not
distinguish.
LIABILITIES OF PUBLIC OFFICERS
PRESUMPTION OF GOOD FAITH AND REGULARITY
PRESUMPTION OF GOOD FAITH AND REGULARITY IN THE
PERFORMANCE OF DUTIES
Officials enjoy the presumption of good faith and regularity in the
conduct of performance of their official functions. Absent any clear
showing and convincing evidence of bad faith, they are spared from
personal liabilities.
Farolan v. Solmac
Even if the withholding of imported goods turned out to be improper,
the public officer is not personally liable because his act enjoys
presumption of good faith and regularity.
Tuzon v. CA
Even if the public officer erred in the interpretation of ordinance resulting
in the delay of issuance of permit and business losses, he is not
personally liable if the interpretation is honest although erroneous.
Error in the exercise of authority is covered by immunity,
provided it is done within the scope of authority in good faith,
without willfulness, malice or corruption.
Philippine Racing Club v. Bonifacio
Facts: The results of a horse race was nullified by the Commission on
Races after it investigated and found a faulty start. The winners claimed
prizes and losers were reimbursed of the amount of their bets. It turned
out however that the Commission did not have the authority to nullify
the results of the race.
Held: Honest belief that it had the power of control is good faith. Good
faith being a state of mind is inferred from the acts of the officials –the
officials acted on impulse and immediately conducted an investigation
after the commotion and rendered a decision which was done in good
faith. Also, the Commissioners honestly believed that they had the
authority to order the cancellation and nullification of the results.
The presumption is however not absolute.
Eulogio v. Spouses Apeles
Section 3, Rule 131 of the Rules of Court expressly provides that the
presumption that official duty has been regularly performed is
satisfactory if un-contradicted and overcome by other evidence. The
presumption, however, is not absolute.
11 | U N I V E R S I T Y O F S A N C A R L O S S L G
It may be overcome by clear and convincing evidence to the
contrary.
San Luis v. CA
Facts: An official suspended an employee. Later, there was an order
to reinstate the latter. However, the official disregard said order and
eventually dismissed the employee.
Initially, the officer was transferred and reason of transfer was that he
denounced the graft and corrupt practices of some of the provincial
officers. After transfer, the Governor subsequently suspended and
eventually dismissed the officer. Said officer contested the dismissal
before CSC and Office of the President. Both administrative agencies
found the transfer to be erroneous. Despite such ruling and order for
reinstatement, the governor continued to suspend and dismiss the
officer.
Held: Blatant disregard of the order reinstating an employee is a clear
indication of bad faith of an official which makes him personally liable
for damages incurred by the employee. While the officials enjoy the
presumption of good faith, the same can be overcome by clear and
convincing evidence.
Court ruled that the rulings of CSC and Office of the President must be
accorded with due respect. It is a ministerial duty of the Governor to
reinstate the officer because it was clear that he has a right to his office.
BPI v. Evangelista
To overcome this presumption, clear and convincing evidence to the
contrary must be presented.
Pac Pacific v. Sales Co.
The presumption of regularity may only be rebutted by evidence so
clear, strong and convincing as to exclude all controversy. Absent such,
the presumption must be upheld. The burden of proof to overcome the
presumption lies on the one contesting the same.
KINDS OF LIABILITY
KINDS OF LIABILITY
A. Nonfeasance — neglect or refusal, without sufficient cause, to
perform an act which it was the officer's legal obligation to the
individual to perform. This is omission of duty.
Ferdie: This is a resemblance of ministerial duty.
B. Misfeasance — or negligence, failure to use, in the performance
of a duty owing to the individual, that degree of care, skill and
diligence which the circumstances of the case reasonably
demand. This is improper act.
C. Malfeasance — acts without any authority, excess, ignorance or
abuse of power. This is illegal act.
Test to determine if offense is committed in relation to office
Crisostomo v. Sandiganbayan
Facts: Crisostomo is a jail guard charged with murder of a detainee
under his custody before the Sandiganbayan. He argues lack of
jurisdiction because there is no direct relation between the commission
of murder and his public office.
Held: The direct relation is shown in his duty as a jail guard which is to
ensure safe custody and proper confinement of a detainee who was
murdered under his watch.
Ferdie: The public officer commits an offense in relation to his office if he
perpetuates the offense while performing his function and without such position,
he could not have committed the act.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Public office need not be an element of the crime charged to
show they are related.
Esteban v. Sandiganbayan
Facts: A bookbinder charged a judge with acts of lasciviousness after
he made sexual advances and innuendos on her when she sought his
recommendation. The judge argues the acts of lasciviousness were not
committed in relation to his office as a judge, and it is not an essential
element of the crime.
Held: True, public office is not an element but still, he could not have
committed it were it not for his power to recommend appointment.
Ferdie: Public office is not an essential element of the act of lasciviousness. But
still, having the authority to recommend or appoint, petitioner used his position to
perpetrate the acts committed. Had there been no authority to appoint, the official
could not have committed those acts.
THREE-FOLD LIABILITY RULE
THREE-FOLD LIABILITY RULE
It states that the wrongful acts or omissions of a public officer may give
rise to civil, criminal and administrative liability. It is not mandatory.
Office of the Court Administrator v. Enriquez
An action for each can proceed independently of the others. They are
separate and distinct from each other.
Absence of essential elements of the crime charged does not
bar administrative liability pursuant to the three-fold liability
rule.
Domingo v. Rayala
Facts: A stenographic reporter charged the NLRC Chairman with sexual
harassment. The Chairman argued the acts complained of do not
constitute sexual harassment because the essential elements of demand
for sexual favour and made as a pre-condition to employment or
promotion were not alleged.
Held: Correct, if it is a criminal case. Even if none of the elements of
sexual harassment is alleged, he is still administratively liable because
under the 3-fold liability rule, the wrongful acts of a public officer may
also give rise to administrative liability, apart from criminal and civil
liability.
It is not required that the demand, request or requirement of a sexual
favor be made categorically. It is enough if it creates an intimidating,
hostile or offensive environment.
Ferdie: Certain acts of public officials give rise to the 3-fold rule. Administrative,
civil and criminal. Each can proceed independently. However, there are acts which
do not necessarily give rise to three-fold liability. An example is an employee’s
tardiness in reporting to work. It will give rise to administrative liability but there
is no criminal liability. However, when one’s tardiness is being covered by changing
the DTR (Daily Time Record) and he subsequently claims salary, it amounts to
falsification which is a criminal offense and thus gives rise to criminal liability. There
will also be civil liability because the employee has to return the salary he received
for the period when he was late and no work was performed.
Usually, if it’s a criminal case, more or less it embraces the administrative offense.
If it’s purely administrative offense, more often than not, it does not embrace the
criminal offense. Civil liability can only be had if there is bad faith. That’s why it is
said that an offense MAY give rise to the three-fold liability. It is not mandatory.
Also, it is not a defense to say that since there is already a criminal case (or an
administrative case) filed, there can be no more administrative case (or criminal
case). Following the three-fold liability rule, these actions can proceed
independently from each other.
In the case of Rayala, would the defense of “I did not verbalize the sexual favor”
prosper in a criminal case? The SC somehow suggested that this would prosper if
it was a criminal case because he did not verbalize the sexual favor.
12 | U N I V E R S I T Y O F S A N C A R L O S S L G
Dismissal of a criminal case does not bar administrative liability
even if both arise from identical facts.
Office of the President vs Cataquiz
Facts: Cataquiz was criminally and administratively charged for graft and
corruption. He was replaced and later dismissed from service,
disqualified to hold public office and forfeited of retirement benefits. But
the criminal case was dismissed. He argued it constitutes the law of the
case. As such, the administrative case must also be dismissed.
He also argued he could no longer be dismissed because he was
dismissed by replacement earlier. As such, the accessory penalties of
disqualification and forfeiture cannot be imposed pursuant to the
principle that the accessory follows the principal.
Held: Dismissal of the criminal case does not bar administrative case
and accessory penalties pursuant to the 3-fold liability rule.
Ferdie: So there is a criminal a case and also an administrative case. But for both
these cases, they arise form identical set of facts. The causes of action for both is
the malversation. The criminal case is dismissed. SC said that the weight of
evidence is different. Proof beyond reasonable doubt v. substantial evidence.
There are different quantums of proof. First is substantial evidence for
administrative cases, then preponderance of evidence for civil cases, then clear
and convincing evidence, then proof beyond reasonable doubt in criminal cases,
then lastly, the highest quantum of proof, overwhelming evidence. Guilt beyond
reasonable doubt, there is still doubt but the doubt is unreasonable.
Important: Dismissal of the criminal case does not bar administrative case even if
they arise from the same set of facts except if the dismissal of the criminal case is
based on innocence. It follows that there is no more administrative case provided
that they arise from the same set of facts.
But when the public officer acts as a government lawyer, the
action for damages must be brought in a separate action
Chavez v. Sandiganbayan
Facts: The PCGG, represented by Solicitor General Frank Chavez, filed a
complaint for reconveyance, reversion and accounting, restitution and
damages against Enrile. Enrile impleaded Chavez in his counter-claim
for damages, alleging it is a mere harassment suit because he was
already cleared from a similar case before.
Held: The action is misplaced. There is no general immunity arising
solely from occupying a public office. Public officers can be held
personally liable for ultra vires acts or if they act in bad faith. But to
allow a counterclaim against a lawyer leads to mischievous
consequences.
Ferdie: What the court is saying here is that although there is official immunity
from suit for the acts of public officers that is not absolute. There are exceptions.
For example if the public officials act in ultra vires or in bad faith they can be held
personally liable.
But the remedy Enrile availed here is odd and unprocedural because he’s filing a
counter-suit against the lawyer handling the case against him. SC said that that is
not the proper remedy because if allowed, it will result to mischievous
circumstances or consequences.
What are these mischievous consequences? It will intimidate or harass the lawyer.
There may be an instance that he will not file a case because he will be retaliated.
SC also said that if you really want to vindicate your name, file a separate action.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
LIABILITY OF OFFICERS FOR ACTS OF SUBORDINATES
LIABILITY OF OFFICERS FOR ACTS OF SUBORDINATES
The signature of the approving officer does not in itself amount
to conspiracy with the subordinates.
Arias v. Sandiganbayan & Data v. Sandiganbayan
Facts: An auditor approved payment for expropriated land which turned
out to be overpriced and supported by falsified documents. He was
charged in conspiracy with others who examined, reviewed and
prepared falsified documents for the transaction.
Issue: Is the head officer liable for the acts of the subordinate officer?
Held: The mere signature of the head of office who had to rely to a
reasonable extent on the competence and good faith of his subordinates
is not an evidence of conspiracy.
To require the head of office to personally probe records, inspect
documents or investigate the motives of all individuals involved in the
transaction before signing it is asking the impossible. There has to be
some added reason why the head of office should examine the
documents in detail. Otherwise, he repeats the process all over again,
defeating delegation and division of labor, which are good administrative
practices.
Ferdie: If you’re a head officer of an agency of the government, you are allowed
to rely on the competence and good faith of the employees. Why are you allowed
to rely? Because a document is presented to you for signature and it presupposes
that it has been reviewed by those under you. That’s why SC said they must be
allowed to rely. Because if you don’t rely, you will have to do everything. Nag-staff
pa ka.
Because of the volume of documents that you have to sign, you have to rely to
your subordinates for reviewing except when there is an added reason that
prompted you for reviewing the documents.
In this case, even though there was an alteration (snowfaked as used in the case)
and superimposition on the price of the land, it cannot be considered an added
reason to prompt Arias to review because, at that time, there was inflation and
sudden surge of the fair market value that made the price of P80/sq.m. no longer
surprising. That’s why SC said there was nothing special about that and it is to be
expected.
Aside from that, it would appear that Arias was not really part of the conspiracy
because when he came to the picture, the deal was done. As a matter of fact,
everybody did not know him. His act of signing was merely ministerial.
Except: When there is no allegation of conspiracy among the
superior and subordinates
Cesa v. Ombudsman
Facts: Under a city treasurer are 5 department heads and 370
employees, one of whom is a paymaster who malversed at least 18M
pesos of public funds. The City Mayor filed an administrative case
against paymaster. But the Ombudsman impleaded city treasurer for
neglect of duty.
The city treasurer argues he could not be held liable because he does
not approve cash advances. Invoking the Arias doctrine, he said he had
to rely on his subordinates by virtue of division of labor and delegation
of functions.
Issue: Whether Arias doctrine can be invoked by the city treasurer.
Held: The City treasurer is still liable for neglect of duty because his lack
of supervision contributed to the malversation of public funds. As a
matter of fact, he approved paymasters’ requests based on papers
without particulars.
The public official’s foreknowledge of facts and circumstances that
suggested an irregularity constitutes an added reason to exercise
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greater degree of circumspection before signing & issuing public
documents.
Arias doctrine does not apply because he was not charged in conspiracy
with the paymaster. He was separately charged and found to be
negligent in his supervisory powers.
Ferdie: Another reason why Cesa (city treasurer) invoked the Arias Doctrine is
that, according to him, he actually manages a big department, having 5
department heads and 370 employees. So he is constrained to rely on them,
pursuant to the Arias doctrine. However, SC insisted in holding him liable because
he is charged to have foreknowledge of the facts and circumstances that should
have alerted him on the irregularities. CA found Cesa negligent for tolerating the
illegal practices on cash advances because he approved the paymasters’ requests
for cash advances based on pieces of paper without any particulars and without
diligent supervision over them. Arias ruling is inapplicable because Cesa was not
charged with conspiracy. What was proven was that his negligence in carrying out
his duties as city treasurer contributed to giving Badana the opportunity to
malverse more than P18M in public funds. SC was silent on this portion of the
decision of CA but since SC affirmed CA decision, by implication, SC sustained the
reasoning of CA on conspiracy.
However, the requirement that there has to be conspiracy for one to invoke the
Arias doctrine was only enunciated in CA. SC was silent on this portion of the CA
decision but it did not expressly contradict SC. By implication, SC sustained the
reasoning of CA on conspiracy. SC affirmed the decision and only added the reason
that Arias doctrine cannot be invoked (aside from the absence of conspiracy) was
because Cesa has foreknowledge of the facts and circumstances that should have
alerted him to think twice before signing the documents.
In Cesa case, SC also cited another case which was about the registrar of deeds
in Caloocan City and her Deputy registrar. There was a charge of conspiracy but
SC held that Arias doctrine is not applicable even if there was conspiracy because
there was an added reason for him to be prompted. In that case, there were two
titles issued in one parcel of land.
Q: Should it be the superior who is charged or is it okay that the subordinate is
charged as long as there is conspiracy?
A: When you are in conspiracy, you are charged the same, so it doesn’t matter
who is charged. What matters is who can invoke the defense. Because only the
head or the chief officer can invoke the Arias doctrine, being the ones allowed to
rely on the work of their subordinates.
TERMINATION OF RELATIONS
MODES OF TERMINATION
MODES OF TERMINATION
1. End of Term
2. Retirement
3. Abolition of Office
4. Reorganization
5. Abandonment
6. Incompatible Office
7. Resignation
8. Removal
9. Recall
10. Prescription
END OF TERM
END OF TERM
Loss of confidence by the appointing authority serves as
expiration of term.
Fernandez v. Ledesma
Facts: The chief of police was replaced by the president with another
pursuant to the city charter that allows him to remove appointed officers
in the city at his pleasure or discretion, except the municipal judge who
may be removed only for cause provided by law.
Held: If the creation and tenure of office is expressly made dependent
upon the pleasure of the appointing authority, the appointment has no
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
fixed term. As such, replacement does not amount to removal but
expiration of term.
Ferdie: This case no longer applies insofar as the facts of the case. Today, the
chief of police do not derive their appointment from the municipal president; they
have security of tenure already. They do not serve at the pleasure of the
appointing authority. What is alive in this case is the principle that says if you serve
at the pleasure of the appointing authority and the appointing authority loses trust
in you that is not termination but the end of term of office.
If the appointing authority says, I lost trust and confidence in you that is the end
of term not termination. When the law says, nobody can be removed except for
cause provided by law, that cause is the loss of confidence.
Q: How about appointed officials whose appointment was confirmed by
Sanggunian?
A: We’re talking here only about political appointees like cabinet secretaries; they
serve at the pleasure of the President. Even others that are appointed by the
President, it does not depend upon his liking or upon his loss of trust and
confidence. There has to be security of tenure and you can only be removed for
cause provided for by law and loss of trust and confidence is not the one referred
to in so far as their appointments. The principle that loss of confidence by the
appointing authority serves as expiration of the term of office only applies to
political appointees.
Q: Are you familiar with courtesy resignation?
A: Cabinet secretaries, they are political appointees by the President. They serve
at the pleasure of the President. What if the President wants to revamp the cabinet
but he is hesitant. Some of them are his friends, so he’s hesitant to terminate.
What he does is to ask everyone to tender courtesy resignation to give the
president a free hand to choose which one to retain and which one to fire.
The loss of trust and confidence must be on the part of the
appointing authority.
Hernandez v. Villegas
Facts: The Director for Security of the Bureau of Customs was removed
and transferred as Arrastre Superintendent without cause. Respondents
argued that the transfer is allowed because the position is primarily
confidential as it coordinates functions of security, patrol and
investigation.
Primarily confidential, policy-determining and highly technical positions
are excluded from the merit system and their dismissal is at the pleasure
of the appointing authority. Thus, the Director can be removed and
transferred with or without cause.
Held: The position is not primarily confidential. The only authority to
classify it as such is the President. The constitution merely exempts
these positions from the civil service requirement that appointments
must be made on the basis of merit and fitness as determined by
competitive examinations.
As such, they can only be suspended or removed for cause as may be
provided by law. And that cause is loss of confidence. If they are
terminated on ground of loss of confidence, it is not removal but
expiration of the term of office.
Ferdie: In this case, the transfer was through the decision of the Secretary of
Finance. It was not the President’s authority. This is now the issue because the
director served at the pleasure of the President who is the appointing authority.
Therefore, it is only also the President that has the power to say “I have lost trust
and confidence in you”. Because he can only be removed and transferred for cause
and that cause includes loss of trust and confidence. But who loses trust and
confidence? It is only the president, the appointing authority.
14 | U N I V E R S I T Y O F S A N C A R L O S S L G
RETIREMENT
RETIREMENT
Retirement of government employees is imposed by law and is
not a result of any contractual stipulation.
Beronilla v. GSIS
Facts: Beronilla changed his year of birth from 1898 to 1900 which was
approved by the GSIS general manager. Thus, the proceeds of his
insurance policy was re-computed, maturity date and value were
adjusted. He also paid additional premium.
But later it was found out that he had been paid salaries and fringe
benefits despite lapse of his compulsory retirement age. Thus, the GSIS
Board of Trustees resolved to supersede the decision of the general
manager that allowed change of year of birth.
Contention of Beronilla: He argued it impaired the obligations of the
contract between him and the GSIS regarding his retirement.
Held: The constitutional injunction against impairment of obligations of
insurance contracts can only be directed against legislation and not
resolutions of government agencies. Retirement of government
employees is imposed by law and is not a result of any contractual
stipulation.
Ferdie: The defense here was that the GSIS Board of Trustees cannot supersede
the decision of the general manager in so far as to change the birth year of the
employee. According to him, there is a constitutional prohibition against the
impairment of obligation of contracts.
SC said that you cannot invoke that against a mere resolution of a government
agency. It can only be available as a remedy against an act of Congress. Meaning
there has to be that piece of legislation because retirement benefits is not a result
of a stipulation of contract but by a positive act of legislation.
ABOLITION OF OFFICE
ABOLITION OF OFFICE
Manalang v. Quitoriano
Facts: The Placement Bureau was expressly abolished by law organizing
its replacement, the National Employment Service. Manalang, the
Bureau Director was expected to be appointed Commissioner but Labor
Secretary Quitoriano was appointed. Manalang argued there is no
abolition of office but a mere fading away of the title Placement Bureau
and all its functions are continued by the National Employment Service.
Hence, he continues to occupy it by operation of law. As such, the
appointment of Quitoriano is illegal because it amounted to his removal
from office without cause.
Held: Removal presupposes that the officer was ousted from office prior
to term end and that the office still exists after the ouster of the
occupant. It is not the case in point. A law expressly abolished the
Placement Bureau. Thus, the Office of the Director is impliedly abolished
because it cannot exist without the bureau. The abolition of the office
likewise abolished the right of the occupant to stay. There is no removal,
but abolition by express legislative act.
Ferdie: SC said that there was an express abolition provided for under the law.
Manalang was not terminated but his office was abolished. When you say transfer,
that presupposes from one place to another. It cannot be from one place to the
same place, otherwise it is not transfer anymore. Granting that Manalang was
merely transferred, where is now the office? It is gone.
If there is no evidence of bad faith in the abolition of office, the
termination does not result in removal, but a result of abolition.
Facundo v. Pabalan & Ulep vs Carbonell
Facts: Facundo is an eligible market collector while Ulep is a non-eligible
clerk. The municipal council resolved to abolish their positions because
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
they are unnecessary, useless and redundant. But on the same day,
another resolution was passed creating 4 positions for policemen. They
argued the resolution abolishing their offices illegally terminated them.
Held: While it appears the abolition is tainted with politics, the positions
created by one resolution are entirely different from the positions
abolished by another resolution. Thus, there is no evidence of bad faith.
Ulep could not invoke his right against removal without cause because
he was not removed, but his office was abolished. Thus, it does not
matter whether he is civil service eligible, non-civil service eligible, or
eligible-in-waiting.
Ferdie: Good faith or bad faith can only be measured in the actions of the
appointing authority. Although it makes a lot of sense that they invoke political
maneuvers, there was no evidence. SC was not prepared to declare bad faith.
Abolition of office in bad faith is null and void hence it results
in unlawful termination.
Cruz v. Primicias
Facts: Cruz and other are civil service eligible provincial clerks. By virtue
of authority from the provincial board, the governor issued an executive
order reorganizing his office and the provincial board to promote
economy, efficiency and simplicity. It abolished the positions of clerks
but created positions for the governor’s confidential staff.
Held: The issue is not removal but validity of the abolition of their offices.
It is null because it clearly serves personal or political ends or to
circumvent security of tenure. No economy. Of the 72 positions
abolished, 50 were vacant and the 22 occupied positions were paid
P25,000 per semester. Whereas the 28 new positions were paid P43,000
per semester. There is no need for more efficiency because there is no
complaint for inefficiency filed. As a matter of fact, they were all
promoted before due to efficiency.
Ferdie: The best evidence of bad faith is when the Governor said that his office
is political in nature and as such, it must be filled out by people loyal to the
governor.
Abolition of office presupposes clear intention to do away with
it wholly and permanently.
Busacay v. Buenaventura
Facts: A toll collector was laid off when the bridge was totally destroyed
by flood. When it reopened, he was replaced because accordingly, his
position is temporary and the total collapse of the bridge abolished it.
Held: The total collapse of the bridge merely suspended the position,
because there is no intention to do away with it wholly and permanently.
When it reopened, the position was automatically restored.
Ferdie: There has to be an act of Congress or probably the provincial board or
the municipal council to abolish the position. Bottomline: Force majeure does not
abolish an office.
REORGANIZATION
REORGANIZATION
Dario v. Mison
Facts: Cory Aquino reorganized the Bureau if Customs. Thus, Mison
terminated 394 customs officials and employees but replaced them with
522 new employees.
Held: Reorganization is valid if done in good faith. There is
reorganization if personnel are reduced, offices consolidated or
abolished by reason of economy or redundancy. No economy, 394 were
replaced with 522 new employees. No reorganization, but mere change
of personnel.
Qualifications are continuing requirements
Article VIII, 1987 Constitution Section 11
The Members of the Supreme Court and judges of lower courts shall
hold office during good behaviour until they reach the age of seventy
15 | U N I V E R S I T Y O F S A N C A R L O S S L G
years or become incapacitated to discharge the duties of their office.
The Supreme Court en banc shall have the power to discipline judges of
lower courts, or order their dismissal by a vote of majority of the
Members who actually took part in the deliberations on the issues in the
case and voted thereon.
Reorganization by abolition does not result in unlawful removal
from office
Dela Llana v. Alba
Facts: Dela Llana is a lower court judge who challenged the
constitutionality of BP 129 reorganizing the judiciary. He argued it
violates his security of tenure because he holds office during good
behaviour until he reaches compulsory age of retirement or is
incapacitated.
Held: Reorganization of lower courts does not violate security of tenure
of its occupants because there is no removal but abolition of their
offices.
Ferdie: Take note that abolition is just a concrete manifestation of reorganization.
The power of the president to reorganize his office does not
include the power to create one.
Biraogo v. Truth Commission & Lagman vs Albano
Facts: President Aquino created the truth commission to investigate
graft and corruption cases allegedly committed under the Arroyo
administration.
Held: While the law grants the president continuing authority to
reorganize his office, it does not include the power to create an office.
Reorganization involves:
1. Reduction of personnel
2. Consolidation or
3. Abolition of offices by reason of economy or redundancy.
Thus, it presupposes that an office existed prior to alteration. It is not
an exercise of power of control because it involves the power to modify,
alter, nullify or set aside the decision of a subordinate. It does not
include the power to create an office.
The power to create a public office is:
A. Legislative, or
B. Validly delegated by Congress or
C. Inherent duty to faithfully execute laws.
Ferdie: But in this case, the inherent duty to faithfully execute laws was invoked
by the solicitor general in favor of the office of the president. But it was not taken
into consideration by the SC because the SC was actually blinded by the fact that
it violated the equal protection clause of the Constitution because it singled-out
the Arroyo administration.
Something about exam question: If by reason of economy, economy alone is not
dependent upon the number of positions abolished or created, look at something
else.
The power to create an office is the power of the legislative or validly delegated
by Congress. However, when we go to administratively law, there is going to be
the power of the president to create an office, not in the office of the president
but in the executive department. They are different. Also, the truth commission is
a violation of the equal protection clause.
Bad faith in reorganization per R.A. 6656 (Acts that protect
Security of Tenure)
A. Significant increase in the number of positions
Dario v. Mison
Replacement of 394 eligible employees with 522 new employees
negates economy as justification for reorganization.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Cruz v. Primicias
Replacement of 22 occupied positions at P25,000 per semester
with 28 new positions at P43,800 per semester negates economy
as justification for reorganization.
B. An office is abolished and replaced with another
performing substantially the same functions.
Facundo v. Pabalan, Ulep v. Carbonell
Facts: The offices of a market collector and local civil registrar clerk
were dissolved and replaced with 4 positions for policemen. It
appeared that the market collector and local civil registrar clerk
were removed via abolition of their offices because of their political
affiliation.
Held: Although the reorganization is tainted with politics, the
Supreme Court said that was not prepared to declare it an abuse
of power because the dissolved positions and the newly created
positions performed entirely different functions. It would have been
struck down as done in bad faith had both offices performed
substantially the same functions.
C. Incumbents are replaced with less qualified in terms of
status of appointment, performance and merit
Cruz v. Primicias
Replacement of eligible clerks who were once promoted for
efficiency with confidential employees whose only qualification is
loyalty to the governor negates efficiency as justification for
reorganization.
D. Reclassification with substantially the same functions as
the original offices
E. Removal violates order of separation provided in Sec 3
1. Casual employees serving less than 5 years
2. Casual employees serving 5 or more years
3. Temporary employees
4. Permanent employees
Evidence of bad faith must be adduced, otherwise the
reorganization is sustained.
Cotiangco v. Province of Biliran
Facts: Permanent public health workers were terminated when their
offices were abolished due to reorganization which they claimed was
done in bad faith.
Held: Good faith is presumed. He who alleges otherwise has the burden
of proof. Instead of significant increase in positions, it decreased from
120 to 98. The new positions created were for storekeepers that do not
perform similar functions as health practitioners.
They also failed to show:
a) Reclassification of offices performing substantially similar
functions.
b) Evidence they are better qualified in performance and merit than
those who replaced them.
c) Order of separation was violated, especially the provision that says
those who are least qualified in terms of performance and merit
shall be laid off first, regardless of length of service.
ABANDONMENT
ABANDONMENT
Summers v. Ozaeta
Facts: A cadastral judge received, qualified and assumed an ad interim
appointment as judge-at large of first instance. But it was disapproved
by the Commission on Appointments. He argues he did not abandon his
former position because the constitution entitles him to hold office as
cadastral judge during good behaviour until he reaches mandatory
retirement age of 70 or becomes incapacitated.
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Held: There is no doubt about the right to hold office during good
behaviour until he reaches maximum retirement age of 70 years or
becomes incapacitated. But it can be waived through abandonment. If
the officer discharged the functions of his new position and received
salaries for it, he is considered to have abandoned his former position
without right to repossess.
Other acts constitutive of abandonment
Unabia v. City Mayor
Facts: A foreman was removed by the city mayor without investigation
and cause. But he filed a petition for quo warranto to recover his position
a year and 15 days after.
Held: Inaction or failure to recover position for an unreasonable length
of time constitutes abandonment.
Zandueta v. de la Costa
Facts: A judge accepted another appointment, discharged its functions
and received salaries.
Held: He abandoned his office without right to repossess if the new
appointment was disapproved.
INCOMPATIBLE OFFICE
INCOMPATIBLE OFFICE
Incompatibility is found on the character of the offices and their relation
to each other, in the subordination of one to the other, and in the nature
of the functions and duties which attach to them. It requires the
involvement of two government offices or positions which are held by
one individual at the same time.
It exists where:
1. There is conflict and interference in the duties and functions
2. One is subordinate of public policy
3. The law, for reasons of public policy, declares the incompatibility
even though there is no inconsistency in the nature and functions
of the offices.
Thus, Members of Congress are disqualified to hold any other office or
employment in the government.
Ferdie: In the government only. But in the private sector, it can be allowed.
They cannot hold 2 classes of office:
1. Incompatible office
2. Forbidden office
Incompatible office
Includes any kind of office or employment in the government, or any of
its subdivision, agency or instrumentality including GOCC’s or their
subsidiaries.
Acceptance of the second office incompatible with the first ipso facto
vacates the latter. Thus, a senator or congressman who accepts any
other office or employment in the government during his term of office
forfeits his seat. While the holding of another office is allowed, he
automatically forfeits his elective post.
An appointive officer is deemed ipso facto resigned upon filing of
candidacy for an elective position.
Forbidden office
Refers to any office created or the emoluments of which have been
increased during the term for which he was elected, not merely during
his tenure or actual incumbency.
Ferdie: Example: You’re a congressman, you legislated to create an office and
you wanted to be appointed to that office. Is that allowed? Yes, but only after you
have ended your term of office. But if you resign to be appointed then no. because
the prohibition extends until the last day of the term of office.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Ineligibility lasts until after end of term, not tenure. So, he is not eligible
to be appointed to the office created during his term even if he resigns
or loses his seat before end of term.
Terms of office
A fixed period of time during which the officer has a right to hold office
Tenure of office
The period during which the incumbent actually holds office.
RESIGNATION
RESIGNATION
Things to remember:
A. Resignation is the formal renunciation of a public office.
B. If the law requires a particular form, it must be followed.
C. Where no such form is prescribed or particular mode required, it
may be made by any method indicative of the purpose.
D. It need not be in writing, unless so required by law.
E. It may be oral or implied by conduct.
Ferdie: It is not necessary for you to write a formal resignation unless expressly
required by law. It can be implied or constructive.
Resignation implied by conduct
Triste v. Macaraeg
By applying for and receiving retirement benefits, one may be deemed
to have irrevocably resigned from government service.
Gonzales v. Hernandez
If resignation is conditional, there is no resignation at all due to lack of
intention to relinquish the position. To constitute a complete and
operative act of resignation, there must be:
A. Clear intention to relinquish, and
B. Acceptance by a competent and lawful authority.
Ferdie: Example of conditional: I will resign, if that guy resigns.
To whom tendered
1. To the one designated by statute
2. If not designated by law, to the officer or body having authority to
appoint his successor or call an election.
Acceptance
Acceptance is done by a formal declaration or appointment of successor
Without it –
a. The resignation is inoperative and ineffective
b. The officer who abandons his office to the detriment of public
service is criminally liable.
c. The offer to resign is revocable.
Withdrawal of resignation is allowed provided it is done before:
a. Its intended date
b. It is accepted
c. The appointing officer acts in reliance on it.
Ferdie: What if you want to change your mind? You already resigned then you
say you won’t resign anymore? Follow this. These are separate instances, they
may not concur.
Effect of resignation on administrative case
OP & PAGC v. Cataquiz
Facts: Cataquiz was dismissed with accessory penalties of
disqualification and forfeiture. But he was already replaced with another
prior to his dismissal. The Court of Appeals thus disallowed the accessory
penalties because there is no more principal penalty of dismissal which
the accessories should follow.
Held: Removal or resignation is not a bar to the finding of administrative
liability. Hence, accessory penalties can still be imposed. (3-fold Rule)
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Except: If the public officer resigned before the administrative
case was filed and it is clearly shown that it was not intended
to pre-empt its filing.
Ferdie: The purpose of filing an administrative case is to discipline. If the
employee has resigned already, it defeats the purpose because there is already no
one to discipline. But it depends on the time of resignation.
a. If he resigns before the filing of the administrative case – The resignation
moots the case.
b. If he resigned after – The administrative case will still continue because it
cannot be pre-empted or mooted by mere expediency of resignation.
What if you resigned before the filing of the case but you knew it was coming?
Still the administrative case can still continue. Take note that it should be not
intended to pre-empt the administrative case.
Ombudsman v. Andutan
Facts: A deputy director of the finance department resigned after he
was directed to vacate for being a non-career official. More than a year
after he resigned however, he was administratively charged for
dishonesty, grave misconduct, falsification and prejudicial conduct.
Held: The ombudsman may still investigate an administrative offense
after a year it was committed. But if the public officer resigned before it
is filed, the administrative case is mooted and the accessory penalties
could no longer be imposed. While it is true that the Supreme Court has
held that resignation does not moot administrative cases, the public
officials involved in such cases resigned after the administrative cases
were filed against them. In those cases, it was intended either to
discontinue one already filed or pre-empt imminent filing of one. None
of which is present, because the director was forced to resign.
Ferdie: He was forced to resign and he had no choice. Take note of the difference
from the earlier case.
REMOVAL
REMOVAL
Manalang v. Quitoriano
Removal entails ouster of an incumbent before the expiration of his
term. It implies that the office exists after the ouster. It may be express
or implied. Implied if –
a. Appointment of another officer
b. Transfer to another office
c. Demotion
d. Reassignment
Power to appoint includes power to remove, where there is no
fixed term
Lacson v. Roque
Limitations on the power to remove –
A. Purely executive officials with no fixed term are removable anytime
with or without cause
Ferdie: These are the persons who served at the pleasure of the appointing
authority. But it is a misnomer to say that with or without cause. There is
cause and it is the loss of confidence.
B. Civil service employees cannot be removed or suspended except
for cause as provided for by law.
“For cause” means reasons which the law and sound public policy
recognize as sufficient ground for removal.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Dismissal of criminal case does not bar removal
administrative case.
OP & PAGC v. Cataquiz
Facts: Cataquiz was recommended to be dismissed due to graft and
corruption. Instead of acting on it, the president replaced him with
another in an acting capacity. He was later dismissed by the president,
disqualified to hold public office and forfeited of benefits.
But since the dismissal could no longer be enforced because of prior
replacement, the president removed the penalty of dismissal but
reiterated disqualification and forfeiture.
Contention of Cataquiz: The Ombudsman dismissed the criminal cases
against him involving the same set of facts. As such, it becomes the law
of the case between the parties which warrants dismissal of the
administrative charges against him.
Held: The dismissal by the Ombudsman of the cases against him
involving similar facts does not bar the president from removing him,
except if the acquittal is based on pure innocence.
Impeachable officials can only be removed on the grounds
enumerated in the Constitution.
In Re: Gonzales, 160 SCRA 771
Facts: A chief justice was sought to be disbarred.
Held: The Chief Justice is removable only by impeachment. Since he is
also required to be a member of the Philippine Bar, he cannot be
disbarred during his incumbency. To grant disbarment circumvents
constitutional mandate that SC members can only be removed by
impeachment.
Ferdie: SC said that you cannot go by the back door. For you to remain a Chief
Justice you must possess the continuing qualifications and one of them is the
membership of the Philippine Bar. Because if you disbar him, he will not have one
of the qualifications to become a Chief Justice and it cannot happen since justices
can only be removed through impeachment. Bottomline: While they are sitting as
justices, you cannot file a disbarment case.
REMOVAL
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
Ferdie: Under the law, you need not be a voter for the recall election, but you
can sign a petition for recall. Only my observation but do not bother about recall.
By whom Registered voters of the LGU to which the local elective
exercised official belongs
Ground Loss of confidence
How By a petition, supported by the registered voters in the LGU
commenced concerned
1. 25% if voting population is not more than 20k
Subject to 2. 20% but in no case under 5K, if voting population is at
the % least 20K but not more than 75K
requirements 3. 15% but in no case under 15K, if voting population is
at least 75K but not more than 300K
4. 10% but in no case under 45K, if voting population is
more than 300K
1. Names, addresses and signatures of petitioners
2. Barangay, city or municipality, local legislative district
Contents of and the province where the petitioners belong
the recall 3. Name of the official sought to be recalled
petition 4. Brief narration of the reasons and justifications
Thus, the allegation of loss of confidence is not sufficient
Where filed Comelec through its field office in the local government unit
concerned
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in Election on recall
Official sought to be recalled is automatically considered a candidate.
He is not allowed to resign while the recall process is in progress.
If the incumbent official will win the recall election
It means that the recall election failed since it has been shown that the
people still have their trust and confidence on the incumbent.
If somebody else wins the recall election
Then it means that the recall election succeeded, since it has been
shown that the people lost their trust and confidence on the incumbent.
Limitations on recall
1. A local elective official may be subject of recall only once during his
term of office for loss of confidence
2. No recall within one year from date of assumption or before a
regular local election.
“Regular local election”
Angobung v. Comelec
For the time bar to apply, the approaching regular local election must
be one where the position of the official to be recalled will be contested
and filled by the electorate.
Paras v. Comelec
The prohibition is due to the proximity of the next regular election where
the electorate can choose a replacement with longer tenure than the
successor elected through recall. Recall election is potentially disruptive
of the normal working of a local government, aside from additional
expenses.
PRESCRIPTION
PRESCRIPTION
Unabia v. Mayor
Facts: On June 16, 1953, a foreman was removed and replaced by the
city mayor without investigation and cause. On July 1, 1954, he filed
quo warranto to be reinstated.
Held: He appears to have abandoned his position because it took him a
year and 15 days to file quo warranto. But since the law does not fix a
period for abandonment, prescription of action is the more appropriate
mode on how his official relations were terminated.
Ferdie: It is not exactly abandonment because abandonment is based on the acts
that constitutes abandonment. It does not pertain to the lapse of time.
Reasons for prescription
Tumulak v. Egay
Facts: In July 1946, a justice of the peace was replaced with another.
In August 1948, he filed a quo warranto case.
Held: The action prescribed. It is not proper that the title of a public
office should be subjected to continued uncertainty. Public interest
requires that such right should be determined as soon as possible or
within reasonable time.
Effect of failure to assume office
Failure to assume vacates the office and terminates relations
Section 11. Failure to assume office of the Omnibus Election Code –
The office of any official elected who fails or refuses to take his oath of
office within six months from his proclamation shall be considered
vacant, unless said failure is for a cause or causes beyond his control.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Criminal liability for failure to assume office
Article 234. Refusal to discharge elective office. Arresto mayor or a
maximum 1,000 fine or both.
Elements:
1. Offender is elected by popular election to a public office
2. Refuses to swear or discharge duties of office
3. Without legal motive
“Legal motive” means legal justification.
Reason why it is punished
Discharge of duties not only becomes a matter of right, but a matter of
duty.
ADMINISTRATIVE DISCIPLINE
OVER PRESIDENTIAL APPOINTEES
DISCIPLINE OVER PRESIDENTIAL APPOINTEES
The SC has exclusive administrative control and supervision
over all court personnel even if they are presidential
appointees.
Ferdie: The argument here is, the power to appoint includes the power to remove.
But here, there is an expressed separation of constitutional powers between the
president and the judiciary. The power of the president to appoint but the power
to remove does not pertain to the president, it is with the SC.
Dolalas v. Ombudsman
Undue delay in the disposition of a case is administrative in nature. As
such, it pertains to the exclusive jurisdiction of the SC.
Maceda v. Vasquez
But falsification of certificates of service is not only criminal for the
falsification but also administrative for serious misconduct and
inefficiency. As such, the ombudsman must defer action and refer it to
the SC to determine if he acted within his scope of duties.
Section 59. Nepotism.
Ferdie: Take note, the exclusive power is with the SC in so far as discipline of the
court personnel is concerned.
OVER NON-PRESIDENTIAL APPOINTEES
DISCPLINE OVER NON-PRESIDENTIAL APPOINTEES
Book V, EO 292 or the Revised Administrative Code
Section 46. Discipline: General Provisions
(a) No officer or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action: (pertains to
appointive officers)
1. Dishonesty
2. Oppression (if grave oppression, then dismissal. If not, then only
suspension)
3. Neglect of Duty
4. Misconduct
5. Disgraceful and immoral conduct
6. Being notoriously undesirable (requisites are notoriety and habit)
7. Discourtesy in the course of official duties
8. Inefficiency and incompetence in the performance of official
duties
9. Receiving 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, committing acts punishable under
the anti-graft laws. (Minimal amount is allowed especially during
special occasions)
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10. Conviction of a crime involving moral turpitude
11. Improper or unauthorized solicitation of contributions from
subordinate employees and by teachers or school officials from
school children
12. Violation of existing Civil Service Law and rules or reasonable
office regulations
13. Falsification of official document
14. Frequent unauthorized absences or tardiness in reporting for
duty, loafing or frequently unauthorized absences from duty
during regular office hours.
15. Habitual drunkenness
16. Gambling prohibited by law (Even if legal but there are specific
prohibition against government officials to gamble in casinos)
17. Refusal to perform official duty or render overtime service
18. Disgraceful, immoral, or dishonest conduct prior to entering the
service. (Refers to the concealment of prior conduct)
19. Physical or mental disability due to immoral or vicious habits
20. Borrowing money by superior officers from subordinates or
lending by subordinates to superior officers.
21. Lending money at usurious rates or interest
22. Willful failure to pay just debts or willful failure to pay taxes due
to the government
23. Contracting loans of money or other property from persons with
whom the office of the employee concerned has business
relations.
24. Pursuit of private business, vocation or profession without the
permission required by Civil Service rules and regulations
25. Insubordination
26. Engaging directly or indirectly in partisan political activities by
one holding a non-political office.
27. Conduct prejudicial to the best interest of the service
28. Lobbying for personal interest or gain in legislative halls and
offices without authority. (3rd degree of consanguinity or affinity)
29. Promoting the sale of tickets 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
30. Nepotism
(1) All appointments in the national, provincial, city and municipal
governments or in any branch or instrumentality thereof,
including government-owned or controlled corporations, made
in favor of a relative of the appointing or recommending
authority, or of the persons exercising immediate supervision
over him, are hereby prohibited. As used in this Section, the
word "relative" and members of the family referred to are those
related within the third degree either of consanguinity or of
affinity.
(2) The following are exempted:
a. Persons employed in a confidential capacity
b. Teachers
c. Physicians, and
d. Members of the AFP
Provided however,
That in each particular instance, full report of such appointment
shall be made to the Commission.
The restriction mentioned in subsection (1) shall not be
applicable to the case of a member of any family who, after his
or her appointment to any position in an office or bureau,
contracts marriage with someone in the same office or bureau,
in which event the employment or retention therein of both
husband and wife may be allowed.
(3) To give immediate effect to these provisions, cases of previous
appointments which are in contravention hereof shall be
corrected by transfer, and pending such transfer, no promotion
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
or salary increase shall be allowed in favor of the relative who
are appointed in violation if these provisions.
IMPEACHMENT
IMPEACHMENT
Section 2, Article XI, 1987 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. All other public
officers and employees may be removed from office as provided by law,
but not by impeachment.
A method of national inquest into the conduct of public men.
Purpose: To protect the people from the official delinquencies. It is not
to punish but only to remove an officer who does not deserve to hold
office.
Impeachment is limited to removal from office and disqualification to
hold public office, without prejudice to filing of appropriate cases. Thus,
jeopardy is not a defense.
Impeachment is beyond the president's power of executive
clemency
The disqualification is perpetual.
Impeachable officials
1. President
2. Vice-president
3. Members of the SC
4. Members of the Constitutional Commissions
5. The Ombudsman
Important: The list is exclusive.
Grounds for Impeachment
1. Culpable violation of the constitution
2. Treason
3. Bribery
4. Graft and Corruption
5. Other high crimes
6. Betrayal of Public trust
“Betrayal of public trust”
Gonzales v. OP
Betrayal of public trust refers to any form of violation of oath of office
even if it is not a criminally punishable offense.
Too broad, thus SC clarified this definition. It refers to "acts which are
just short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty,
favouritism, and gross exercise of discretionary powers"
Acts that constitute betrayal of public trust as to warrant removal from
office may be less than criminal but must be attended by bad faith and
of such gravity and seriousness as the other grounds for impeachment.
OVER LOCAL ELECTIVE OFFICIALS
DISCIPLINE OVER LOCAL ELECTIVE OFFICIALS
Section 60, Local Government Code
Grounds for disciplinary actions
An elective local official may be – (do not memorize)
1. Disciplined
2. Suspended or
3. Removed from office
4. Disloyalty to the Republic
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5. Culpable violation of the Constitution
6. Dishonesty, oppression, misconduct in the office, gross
negligence or dereliction of duty
7. Commission of any offense involving moral turpitude or an
offense punishable by at least Prision Mayor
8. Abuse of authority
9. Unauthorized absence for 15 consecutive working days except
Sanggunian members
10. Application for, or acquisition of foreign citizenship, residence or
status of immigrant
Form and Filing of administrative complaints
Form – verified complaint
Where filed – Office of the President - elective official of a province,
HUC, Independent component city component city.
Take note: Decisions of the OP are final and executory, unless there is
grave abuse of discretion.
Administrative Appeals
When filed – 30 days from receipt of decision
Where filed -
A. Sangguniang Panlungsod of component city or Sangguniang
Bayan – Sangguniang Panlalawigan
B. Sangguniang Panlalawigan and Sangguniang Panlungsod of HUC
and independent component city – Office of the President
PREVENTIVE SUSPENSION
Who suspends –
A. President – in case of elective official of province, highly
urbanized city or independent component city
Hagad v. Dadole
But with concurrent jurisdiction with the Ombudsman.
Ferdie: SC said in the Hagad Case that the LGC 1991 did not repeal the
Ombudsman Act of 1989 in so far as the jurisdiction to discipline elective
officials HUC is concerned. Concurrent.
B. Governor – elective official of a component city or municipality
C. Mayor – elective official of a barangay
When – any time after issues are joined
Basis for Preventive Suspension
Evidence of guilt is strong.
Nera v. Garcia
Disciplining authority decides when evidence of guilt is strong.
TN: Prior hearing is not required in preventive suspension because it is
not a penalty and will not violate due process
Reasons for preventive suspension
1. Given the gravity of the offense, there is great probability that
continuance in office
2. Influence the witnesses
3. Pose a threat to the safety and integrity of the records and other
evidence (tinker the evidence)
Limitations
A. Single case – not beyond 60 days
B. Multiple cases – not more than 90 days
C. Within a single year or on the same grounds existing and known
during first suspension
Ferdie: The reason for the limitation is because if the suspension is indefinite,
it might already be a suspension or removal from office.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Salary of Respondent Pending Suspension
Ganaden v. CA
A public official preventively suspended is not entitled to salary during
suspension. However, if exonerated and reinstated, he must be paid
his full salary and other emoluments.
Rights of Respondent
1. Full opportunity to appear and to defend himself or by counsel
2. The party in an inquiry may or may not be assisted by counsel
and the body has no duty to furnish him with counsel
3. Confront and cross-examine witnesses
Ferdie: Take note of Ang Tibay Case in so far as administrative proceeding is
concerned. In administrative cases, it is enough that there is opportunity to be
heard.
Execution Pending Appeal
Appeal does not prevent decision becoming final and executory.
If respondent wins an appeal –
The period during which the appeal was pending shall be considered
as a period of preventive suspension.
If the appeal exonerates –
He shall be paid his salary and such other emoluments during the
pendency of the appeal (Ganaden v. CA)
THE OMBUDSMAN
JURISDICTION OF THE OMBUDSMAN
JURISDICTION OF THE OMBUDSMAN
The full administrative disciplinary authority of the
Ombudsman is not limited to recommendation. When public
officers are found at fault, it includes the power to remove,
suspend, demote, fine, censure and prosecute.
Ombudsman v. CA & Armilla
Facts: DENR employees were suspended by the Ombudsman for simple
misconduct. They argued that the Ombudsman is without authority to
suspend them because its power is merely recommendatory pursuant
to Tapiador.
Held: The Tapiador ruling that says the power of the Ombudsman is
merely recommendatory, is a mere obiter dictum. The term
“recommend” in the Constitution should not be literally interpreted, but
construed in tandem with the Ombudsman Act which vests full
administrative disciplinary authority from recommendation to
implementation.
The Ombudsman is not intended to be passive, but an activist watchman
armed with the power to prosecute and take active role in enforcing
anti-graft laws.
The Ombudsman has the power to prosecute criminal cases
involving public officers, and it includes the power to conduct
preliminary investigation.
Camanag v. Guerrero
Facts: The Ombudsman conducted preliminary investigation and found
probable cause against a BIR employee who was claimed to be a CPA
by falsifying official documents and deputized the city prosecutor to file
and prosecute falsification charges.
The employee argued that the Ombudsman has no power to prosecute
and conduct preliminary investigation because the Constitution merely
empowered it to direct the officer concerned to take appropriate action
and recommend.
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Held: It is true that the framers intended to withhold prosecutorial
powers from the Ombudsman. However, they also did not hesitate to
recommend legislation to prescribe its other powers, duties and
functions.
Section 13(8), Article XI empowers it to “exercise such other powers and
perform such other functions or duties” as Congress may legislate. Thus,
the Ombudsman Act of 1989 was enacted granting it power to prosecute
including power to investigate.
The jurisdiction of the Ombudsman over GOCC’s is confined
only to those with original charter.
Khan Jr. v. Ombudsman
Facts: PAL officers were charged for violation of R.A. 3019 before the
Ombudsman after they allegedly used their positions to secure a
contract for a company they were stockholders. They moved to dismiss
for lack of jurisdiction, saying PAL is a private entity and they were not
public officers. It was denied because PAL is now a GOCC after its
controlling interest was acquired by the government through the GSIS.
Held: The jurisdiction of the Ombudsman over GOCC’s is confined only
to those with original charters. While it is true that PAL is now a GOCC
after its controlling interest was acquired by the government through
the GSIS, it has no original charter. It was originally organized as a
private entity seeded with private capital under the general corporation
law.
Ferdie: Original charter is if there was a special law creating the GOCC.
A public officer may be dismissed from service for private and
personal acts.
Remolona v. CSC
Facts: A postmaster was dismissed after found guilty of dishonesty for
faking the eligibility of his wife. He argued his dismissal violates due
process because it was not for cause since the dishonest act was not
committed in the performance of his official duties as postmaster.
Held: A public officer may be dismissed from service for an offense not
related to work or foreign to his performance of official duties because
dishonesty affects fitness to continue in office.
Dishonesty defined
Pagcor v. Rillorosa
As an administrative offense, dishonesty is defined as the disposition to
lie, cheat, deceive, or defraud, untrustworthiness, lack of integrity in
principle, lack of fairness and straightforwardness, disposition to
defraud, deceive or betray.
Alfonso v. OP
It is the concealment or distortion of truth in a matter of fact relevant
to one’s office or connected with the performance of his duties.
POWER TO INVESTIGATE ADMINISTRATIVE CHARGES
POWER TO INVESTIGATE ADMINISTRATIVE CHARGES
The administrative disciplinary authority of the Ombudsman is
not merely recommendatory, but mandatory.
Ombudsman v. Beltran
Facts: An employee of the Tricycle Regulatory Office was dismissed by
the Ombudsman after being found guilty of misconduct for failure to
remit fees collected from tricycle drivers.
Held: Ledesma v. Court of Appeals overruled a mere obiter dictum the
Tapiador decision that says the administrative disciplinary authority of
the Ombudsman is merely recommendatory.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
Article XI of the Constitution that directs the Ombudsman to recommend
removal, suspension, fine, censure and prosecution of public officers
found to be at fault should not be interpreted literally. When read with
the pertinent provisions of the Ombudsman Act, the full administrative
disciplinary authority is mandatory, and not merely advisory.
Acop v. Ombudsman
The constitutional powers of the Ombudsman are not exclusive.
Congress is authorized to legislate additional powers hence it passed the
Ombudsman Act of 1989 empowering the Ombudsman to directly
remove, suspend, fine, censure and prosecute public officers.
Ombudsman v. CA
Ombudsman’s disciplinary authority covers the gamut of administrative
adjudication. It entails authority to receive complaints, investigate, hear,
summon witnesses, require documents, preventively suspend,
determine and impose appropriate penalty.
It is the real party-in-interest in administrative cases because it stands
to suffer if decisions adverse to it attain finality. If deprived of
disciplinary authority, enforcement of its mandated functions as
protector of the people is defeated.
The word “recommend” is mandatory and the proper officer
whom it is coursed through has no choice but to enforce it.
Ferdie: If the Ombudsman orders the head office to suspend a person, the head
office has no choice but to enforce it.
Ombudsman v. CA and Santos
Facts: Santos is LTFRB special collection and disbursing officer who was
dismissed by the Ombudsman for dishonesty after she was found by the
COA with a cash shortage. She went to the CA, saying that the
Ombudsman cannot directly dismiss her because its disciplinary power
is merely recommendatory.
The CA agreed with her. The Constitution provides, “Direct the officer
concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion,
fine, censure, or prosecution and ensure compliance therewith. RA 6770
further provides – or who neglects to perform an act or discharge a duty
required by law, and recommend his removal, suspension, demotion,
fine, censure, or prosecution and ensure compliance therewith.
Ferdie: The word recommend is paired with “ensure compliance therewith,” that
makes it mandatory.
It is only when the officer fails to act that the Ombudsman is empowered
to enforce and compel such officer to act. If RA 6770 empowered the
Ombudsman to directly remove, it should have placed the word
“enforce” at the start of the provision – “or enforce” its disciplinary
authority”.
The office of the Ombudsman shall have disciplinary authority over all
elective and appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local
government, government –owned or controlled corporation and their
subsidiaries,”
Held: Do not be too literal. Ledesma v Court of Appeals said that such
literal interpretation is too restrictive and inconsistent with the wisdom
and spirit behind the creation of the Office of the Ombudsman. The word
“recommend” as used in the Constitution and the Ombudsman Act
means that the implementation of the order to remove, suspend,
demote, fine, censure and prosecute be coursed through the proper
officer, and that officer has no choice but to enforce it.
Provided, that the refusal by any officer without just cause to comply
with an order of Ombudsman to remove, suspend, demote, fine, censure
and prosecute an officer or employee who is at fault or who neglects to
perform an act or discharge a duty required by law shall be a ground for
disciplinary action against said officer.” This strongly indicates that
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“recommendation” is not merely advisory in nature but mandatory
within the bounds of the law.
The Military Ombudsman is not prohibited to perform other
functions affecting non-military personnel. Thus, it has
jurisdiction to investigate police officers even if they are civilian
personnel of the government. And there is no distinction
between the duty to investigate and the power to conduct
preliminary investigation
Acop v. Ombudsman, Lacson v. Casaclang
Facts: Different composite teams of police officers were investigated by
the Deputy Ombudsman for the military for their involvement in the
rubout of 11 suspected members of the notorious robbery gang,
Kuratong Baleleng. They argued the duty of the Ombudsman to
investigate is separate and distinct from the power to conduct
preliminary investigation which remains with the Special Prosecutor. The
Military Ombudsman has no jurisdiction over police officers because they
are civilian personnel of the government.
Held: Based on the deliberations of the framers, there is no distinction
between the duty to investigate and the power to conduct preliminary
investigation. There is also no showing that such power remains with
the Special Prosecutor.
While there is an intention to withhold prosecutorial powers, it did not
hesitate to recommend legislation to add powers, functions and duties
of the Ombudsman. Hence, the Ombudsman Act of 1989 was passed
which made the Office of the Special Prosecutor an organic component
of the Office of the Ombudsman. It also removed powers of the Special
Prosecutor and transferred them to the Ombudsman.
There is no evidence from the deliberation that the Military Ombudsman
is prohibited from performing other functions affecting non-military
personnel.
Sec. 31 of the Ombudsman Act authorizes the Ombudsman to designate
personnel of his office or deputize any prosecutor or government lawyer
to act as special investigator or prosecutor. Thus, the Ombudsman may
refer cases involving non-military personnel for investigation to the
Military Ombudsman.
Ferdie: If there is a case filed against a police officer, it goes all the way to the
Deputy Ombudsman for the Military. And Ombudsman also have the power to
deputize.
The School Superintendent has original jurisdiction over
administrative cases involving public school teachers. As such,
the Ombudsman must yield, except, where there is estoppel.
Ferdie: If it is the public school teacher, then go to school superintendent which
has the original exclusive jurisdiction. The rationale here is to establish a standard
for public school teacher. Example of the second sentence: You file a counter-
affidavit with the Ombudsman, then you participated in the case. Then when you
lost, you will say Ombudsman has no jurisdiction. That is not allowed because you
are estopped.
Ombudsman case
Facts: A public school teacher was charged with falsification, dishonesty
and gave misconduct before the Ombudsman after he failed to produce
original copy of his TOR, which authenticity was denied by the school
registrar.
He argues that the School Superintendent has exclusive jurisdiction over
administrative cases against a public school teachers under the Magna
Carta for Public School Teachers.
Held: Magna Carta grants jurisdiction to the investigating Committee
headed by the School Superintendent over erring public school teachers.
But the Ombudsman Act likewise grants jurisdiction to the Ombudsman
over acts or omissions that are contrary to law.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
The Constitution empowers the Ombudsman to investigate acts or
omissions that appear to be illegal, unjust, improper or inefficient.
Deloso v. Domingo
Defined “illegal act or omission of any official” as any crime committed
by a public officer, even if the act or omission is not related with the
performance of official duty.
Ombudsman v. Estandarte
Rules that per Magna Carta for Public School Teachers, original
jurisdiction over administrative cases against public school teachers
pertains to the School Superintendent. Purpose is to impose a separate
standard and procedural requirement for administrative cases involving
public school teachers. Thus, the Ombudsman must yield.
Except: When there is estoppel.
Ombudsman v. Galicia
In this case, Galicia is estopped because he was given due process and
he filed his counter-affidavit. It was only when the decision was adverse
to him that he raised the issue of lack of jurisdiction for the first time.
Alcala v. Villar
The public school teacher is estopped from questioning the jurisdiction
of the Ombudsman because he was given sufficient opportunity to be
heard and he submitted his defenses.
CONCURRENT WITH THE OFFICE OF THE PRESIDENT
CONCURRENT WITH THE OFFICE OF THE PRESIDENT
The Ombudsman and the President have concurrent
jurisdiction to enforce administrative discipline on local
elective officials of a highly urbanized city.
Hagad v. Dadole
Facts: Local elective officials of a highly urbanized city were charged
with falsification before the Ombudsman after they allegedly altered the
amount in an appropriation ordinance without authority from the
Sangguniang Panlungsod.
Ouano moved to dismiss, arguing that the Ombudsman has no more
jurisdiction over the administrative case because of the enactment of
the Local Government Code of 1991.
Section 63 empowers the Office of the President to investigate and
impose administrative sanctions against, and preventively suspend,
elective officials of a highly urbanized city. Ouano added that there is
nothing in the Constitution that gave the Ombudsman superior powers
than those of the Office of the President over elective officials.
But the Ombudsman denied the motion to dismiss and recommend that
Ouano be placed under preventive suspension. He went to the Regional
Trial Court asking prohibition and injunction. Presiding Judge Dadole
restrained the Ombudsman. But the Ombudsman moved to dismiss.
Dadole denied it, saying that the investigative power of the Ombudsman
under the Ombudsman Act is too general and vague whereas the LGC
provides more specific and well-defined grounds for administrative
discipline. Thus, the LGC provides exception to the disciplinary authority
of the Ombudsman to investigate local elective officials.
Held: Section 21 of the Ombudsman Act grants the Ombudsman with
disciplinary administrative authority over all elective and appointive
officials except those removable by impeachment and members of
Congress. Whereas, Section 24 authorizes the Ombudsman to
ly suspend any public officer under its investigation.
But Section 61(a) of the LGC says that and administrative complaint
against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the
Office of the President.
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The Supreme Court required the Solicitor- General to comment since
any final resolution of the case is a matter of national concern. The Sol-
Gen said that while the LGC conferred on the Office of the President
disciplinary authority over local elective officials, such grant is not
exclusive.
The LGC did not withdraw the power of the Ombudsman under the
Ombudsman Act conformably with the constitutional mandate. Indeed,
there is nothing in the LGC that indicates it has, expressly or impliedly,
repealed the pertinent provisions of the Ombudsman Act.
The two statutes are not so irreconcilable that compels the Court to
uphold one and strike the other.
Congress is presumed to have known existing laws on the subject and
not to have enacted conflicting statutes. Hence, doubts must be
resolved against implied repeal and the laws must be harmonized.
Sections 61 and 63 of the LGC of 1991 are parallel with Sections 61 and
63 of its precursor, the Government Code of 1983. In that law, the
authority to investigate and preventively suspend elective local officials
was placed under the Minister of Local Government, until it became
concurrent with the Ombudsman, by virtue of the Ombudsman Act of
1989. The LGC of 1991 did not change the Government Code of 1983,
except the substitution of the Minister of Local Government with the
Office of the President as having power of administrative discipline.
Hence, the Ombudsman and the President have concurrent jurisdiction
to enforce administrative discipline on local elective officials of a highly
urbanized city.
The President and the Ombudsman have concurrent authority
to remove the Deputy and Special Prosecutor under certain
conditions.
Gonzales v. Office of the President and Sulit v. Ochoa
Facts: Mendoza held hostage and killed foreign tourists because the
Ombudsman failed to act on his motion for reconsideration. The Incident
Investigation and Review Committee recommended Deputy
Ombudsman Gonzales for dismissal. The Office of the President found
him guilty of gross neglect of duty and grave misconduct constituting
betrayal of public trust.
The IRC blamed Gonzales for not acting on the motion for
reconsideration filed by Mendoza for more than 9 months without
justification. Worse, they merely offered to review the motion for
reconsideration when they received the demand of Mendoza to resolve
it. They should have resolved it right away or suspended the
enforcement of dismissal.
This aggravated the situation and triggered the collapse of the
negotiation. Thus, the IRC found Gonzales guilty of serious and
inexcusable negligence and gross violation of the rule that motions for
reconsideration must be resolved within 5 days from filing.
Meanwhile, Major Carlos Garcia, his wife and 2 sons were charged with
plunder and money laundering by Special Prosecutor Wendell Barreras-
Sulit before the Sandiganbayan. Garcia moved to bail but was denied
because there is strong prosecution evidence. But suddenly, Sulit sought
approval of the plea bargaining agreement entered into with Garcia.
The Sandiganbayan resolved that the change of plea is warranted and
the plea bargaining agreement complies with jurisprudential
requirements. Outraged by the back deal that could allow Garcia to get
off the hook, Congress investigated and recommended to the President
that Sulit be dismissed after filing of charges for acts or omissions
amounting to betrayal of public trust.
The Office of the President initiated an administrative case against Sulit.
But she invoked prematurity and lack of jurisdiction. Both Gonzales and
Sulit challenged the constitutionality of Section 8(2) of the Ombudsman
Act of 1989.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016
It says the deputy or special prosecutor may be removed from office by
the President for any of the grounds for the removal of the Ombudsman,
and after due process.
Issue: Whether the Office of the President has jurisdiction to exercise
administrative disciplinary power over a deputy ombudsman or a special
prosecutor who belong to a constitutionally- created Office of the
Ombudsman.
Held: While the disciplinary authority of the Ombudsman is extensive
and covers all public officers except those removable by impeachment,
it is not exclusive.
Section 8(2) of the Ombudsman Act says that the Deputy or Special
Prosecutor may be removed from office by the President for any of the
grounds for impeachment of the Ombudsman, after due process.
Unquestionably, the Ombudsman has jurisdiction to discipline his or her
own men. Also unquestionably, the President has concurrent authority
with the Ombudsman to remove the deputy and the special prosecutor
under certain conditions.
These conditions are:
1. That it must be for any of the grounds for removal of the
Ombudsman.
a. Culpable violation of the Constitution
b. Graft and corruption
c. Other high crimes
d. Bribery
e. Treason
f. Betrayal of public trust
2. That due process is observed.
Section 8(2) is not unconstitutional. Removal of the Ombudsman by
impeachment is clear under the law but the removal of the deputy and
special prosecutor is not. As such, the express grant by Section 8(2) on
the President to remove a deputy and special prosecutor merely filled
the gap in law. The power to remove the deputy and special prosecutor
is implied from the power of the president to appoint them.
General rule:
All officers appointed by the president are removable by him.
Except: When the law expressly provides otherwise. Like when the
Constitution expressly separates the power to remove from the power
to appoint.
Examples:
1. Supreme Court Justices are appointed by the President but
removable by impeachment.
2. Judges of lower courts are appointed by he President but
removable by the Supreme Court.
3. The Chairmen and Commissioners of the Constitutional Bodies, and
the Ombudsman are appointed by the President but removable by
impeachment.
The power to remove does not diminish the independence of the
Ombudsman because such independence refers to political
independence only.
The terms of office, salary, appointments and discipline are reasonably
insulated from the whims of the politicians through prescribed term of 7
years, prohibition against salary decreases and fiscal autonomy.
Espinosa v Ombudsman elucidated the independence of the
Ombudsman as having endowed with a wide latitude of investigative
and prosecutorial powers virtually free from legislative, executive or
judicial intervention.
24 | U N I V E R S I T Y O F S A N C A R L O S S L G
But Gonzales cannot be removed for acts that do not constitute betrayal
of public trust. The tragic hostage-taking incident was the result of a
confluence of several unfortunate events including system failure of
government response. It cannot be solely attributed to what Gonzales
may have negligently failed to do for the quick and complete resolution
of the case, or in his error of judgment.
The failure to immediately act on a request for early resolution is not,
by itself, gross neglect of duty amounting to betrayal of public trust. As
a matter of fact, Gonzales recommended it for final approval within 9
days from receipt.
True, it is the Sandiganbayan that determines the propriety of a plea
bargain based on evidence. What the disciplinary authority determines
is whether the special prosecutor considered the best interest of the
government or was diligent and efficient in performing her prosecutorial
duty when she entered into a plea bargain. But she was found to be
inept and negligent in her duty for failing to build a strong case for the
government.
Important: If the president is allowed to remove the deputy and
special prosecutor, it violates the independence of the Ombudsman. But
SC said that it does not necessarily violate. What we are trying to protect
here is political independence.
But in so far as the power to remove is concerned, the deputy and
special prosecutor, the President can do that. Provided, the ground for
removal is the same as grounds for impeachment and there is due
process.
CONCURRENT WITH THE DOJ
CONCURRENT WITH THE DEPARTMENT OF JUSTICE
The Ombudsman has concurrent jurisdiction with the
Department of Justice.
Honasan v. DOJ Panel of Investigating Prosecutors
Facts: Honasan was charged with the crime of coup d'etat before the
DOJ pursuant to the Joint Circular between the Ombudsman and
Contention of Honasan: He argued that it is the Ombudsman that has
jurisdiction to conduct preliminary investigation because the imputed
acts relate to his public office.
Should the case be filed, it should be with the Sandiganbayan and not
the regular courts, because he receives Salary Grade 31 as senator.
Contention of the DOJ: It has jurisdiction to conduct preliminary
investigation pursuant to the Revised Administrative Code. Coup d'etat
is not directly related to his public office as a senator. The challenge
against the constitutionality of the Joint Circular is misplaced.
The jurisdiction of the DOJ is a statutory grant under the Administrative
Code and is not derived from any of the provisions of the Joint Circular.
Contention of the Ombudsman: The DOJ has jurisdiction because coup
d'etat falls under the Sandiganbayan only if it is committed in relation to
the office.
The DOJ has concurrent jurisdiction with the Ombudsman to conduct
preliminary investigation over public officials has been recognized in
Sanchez v. Demetriou and incorporated in rules on criminal procedure.
The Joint Circular need not be published because it is a mere internal
arrangement between the DOJ and the Ombudsman and it neither
regulates nor penalizes conduct of persons.
The jurisdiction over cases cognizable by the Sandiganbayan is
concurrent with all investigatory agencies of the government duly
authorized to conduct preliminary investigation under the Rules of
Criminal Procedure.
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

The only qualification is that, the Ombudsman may take over the
investigation at any stage in the exercise of its primary jurisdiction.
While the Ombudsman has jurisdiction to investigate and prosecute any
illegal act or omission of any public official, such authority is merely
primary and not exclusive.
INVESTIGATE ILL-GOTTEN WEALTH AFTER 2/25/1986
OMBUDSMAN’S POWER TO INVESTIGATE ILL-GOTTEN WEALTH
Republic v. Sandiganbayan & Argana
The PCGG and the Ombudsman do not have concurrent jurisdiction to
investigate cases of ill-gotten wealth. Instead, the jurisdiction of the
PCGG and the Ombudsman to investigate cases of ill-gotten wealth are
separated by period of time.
For wealth ill-gotten before February 25, 1986, the PCGG has
jurisdiction. But thereafter, it pertains to the Ombudsman.
PREVENTIVE SUSPENSION
PREVENTIVE SUSPENSION
Lastimosa v. Vasquez
Facts: A public health nurse filed a criminal complaint for frustrated rape
and administrative complaint for immoral acts, abuse of authority and
grave misconduct against a municipal mayor before the Office of the
Ombudsman. The graft investigator recommended dismissal for lack of
evidence. But it was reversed on review by the Ombudsman who
directed the Deputy Ombudsman to file the case of attempted rape with
the regional trial court.
Thus, the Deputy Ombudsman referred the case to the Provincial
Prosecutor for filing with the regional trial court. The case was eventually
assigned to Asst. Provincial Prosecutor Lastimosa. She investigated the
case and found that the mayor is liable for acts of lasciviousness only
and filed it with the municipal trial court.

When the deputy ombudsman learned no case for attempted rape was
OMBDUSMAN FOR THE MILITARY filed, it ordered Lastimosa to show cause why she should not be cited
in contempt for disobedience.
OMBUDSMAN FOR THE MILITARY
In the administrative case, she was placed under preventive suspension.
Jurisdiction of the Military Ombudsman over police officers Thus, she filed this certiorari and prohibition to set aside the orders to
file the attempted rape case, to explain why she should not be held in
Agbay v. Deputy Ombudsman for the Military
contempt and to place her under preventive suspension. She argued
Facts: On Sept. 7, Agbay was detained for touching the genitals of a
that the Ombudsman and the Prosecutor have concurrent authority to
minor while aboard a tricycle. On Sept. 8, a complaint for child abuse
investigate public officers.
was filed against him by the mother before the municipal trial court. On
Sept. 10, the lawyer demanded the police officers to release him since
When the Ombudsman first takes cognizance, it excludes the
they failed to deliver him to the proper judicial authority within 36 hours
Prosecutor. Thus, it must file the case in court because preparation and
from detention.
filing are part and parcel of preliminary investigation. As such, it must
not be referred or delegated. That she investigated just the same is
Agbay argued that the Military Ombudsman has no jurisdiction to act on
because the Ombudsman insisted. It has no jurisdiction because rape
a complaint against police officers because of the civilian character of
was not committed in relation to a public office. As such, it has no
the Philippine National Police. He also challenged the constitutionality of
authority to cite her in contempt, aside from prejudicial question, and
MC No. 14 insofar as it vests the Military Ombudsman with jurisdiction
place her under preventive suspension for disobedience.
to investigate all cases involving PNP personnel.
Held: The Ombudsman has the power to investigate and prosecute any
The Acop doctrine applies only to isolated cases involving non-military
act or omission of any public officer when such act or omission appears
personnel. The referral must not be wholesale or indiscriminate. MC No.
illegal, unjust, improper or inefficient. This power includes investigation
14 violates the clear intent and policy of the Constitution and the
and prosecution of any crime whether or not the acts or omissions relate
Ombudsman Act to maintain the civilian character of the police force. It
to, connected or arise from the performance of his duties. It is enough
also blurs the distinction between cases involving civilian and military
that the act or omission is committed by a public official.
personnel and negates the purpose of the creation of separate offices
for each.
In the exercise of this power, the Ombudsman is authorized to designate
or deputize prosecutors for assistance under his supervision and control.
Held: The Military Ombudsman has jurisdiction to investigate, including
Once deputized, the prosecutor cannot legally act on his own and refuse
personnel of the Philippine National Police. Acop ruled that the
to prepare and file the Information as directed. Any disobedience is
deliberation on the military ombudsman does not yield conclusive
contumacious pursuant to Section 15(g) of the Ombudsman Act granting
evidence that such deputy is prohibited from performing other functions
it power of contumacy.
and duties affecting non-military personnel.
The argument that she cannot be cited in contempt because her refusal
On the contrary, pertinent constitutional provisions reveal otherwise. It
arose out of an administrative, and not judicial proceeding has no merit.
says the Ombudsman may exercise powers and perform other functions
She herself said in another context that preliminary investigation is a
as may be prescribed by legislation. Thus, the Ombudsman Act was
quasi-judicial proceeding.
enacted, which Section 11 grants the Ombudsman supervision and
control over his office.
Section 21 of the-Ombudsman Act grants the Ombudsman disciplinary
authority over prosecutors. Section 22 authorizes the Ombudsman to
Section 31 empowers the Ombudsman to deputize and designate
preventively suspend any officer under investigation if in his judgment
personnel of his office, any prosecutor or state prosecutor to assist him
the evidence of guilt is strong, the charge involves dishonesty,
in the investigation and prosecution of certain cases. Accordingly, the
oppression, grave misconduct or neglect in the performance of duty,
Ombudsman may refer cases involving non-military personnel for
charges warrant removal and the continued stay may prejudice the case.
investigation by the deputy for military affairs. The issuance of MC No.
It continues until the case is terminated but not to exceed 6 months
14 is simply an exercise of the power to utilize its own personnel and to
except when the delay in the disposition is due to the fault, negligence
designate and deputize.
or petition of the respondent.

Prior notice and hearing are not required because preventive suspension
is not a penalty but a mere preliminary step in administrative
investigation. Buenaseda v. Flavier ruled that whether the evidence of
25 | U N I V E R S I T Y O F S A N C A R L O S S L G
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

guilt is strong is left to the determination of the Ombudsman by taking

into account the evidence before him. Nera v. Garcia likewise ruled that
the disciplining authority is given the discretion to decide when the
evidence of guilt is strong. True, 90 days is based on jurisprudence. But,
it refers to cases where the law is either silent or expressly limits
suspension to 90 days,

When law is silent as to period of suspension, Section 13 of R.A. 3019

supplies to limit period to 90 days to prevent indefinite suspension. In
this case, she was suspended under Sec. 24 of the Ombudsman Act
expressly setting the maximum period of suspension to 6 months. The
contention of prejudicial question has no merit. The two cases arose out
of the same act or omission. They may proceed hand in hand, or one
over the other. Whatever order does not matter.
Ferdie: If you are deputize by the Ombudsman, you actions must be consistent
with the theory of the Ombudsman. Because in this case the Ombudsman wanted
here to file a Rape case. She didn’t think it was rape. Ombudsman wanted to cite
her in contempt.

ENFORCEMENT OF DECISIONS

ENFORCEMENT OF DECISIONS

Appeal does not stay the execution of administrative decisions

of the Ombudsman penalizing dismissal or suspension.
Ganaden v. CA
Facts: NPC employees were charged with three administrative cases
before the Ombudsman for dishonesty, misconduct and acts inimical to
public service. They were found guilty of dishonesty and suspended for
one year. They moved to reconsider, but instead the penalty of
suspension was upgraded to dismissal. They appealed before the CA.

They argued that by virtue of their pending appeal with the Court of
Appeals, plus the fact that the CA granted their motion to amend to
include Transco as respondent, the decisions enforcing dismissal and
suspension are automatically stayed even without a restraining order.

Held: These cases are antiquated. The Ombudsman Rules of Procedure

allowing stay of execution pending appeal has been amended on
September 15, 2003 by Administrative Order No. 17.

It says the Ombudsman decision in administrative cases shall be

executed as a matter of course. An appeal shall not stop the decision
from being executor. In case the penalty is removal and suspension, and
the respondent wins such appeal, he shall be considered under
preventive suspension and paid the salary and other emoluments he did
not receive by reason of the suspension or removal.

Under this provision, a respondent penalized with suspension for more

than one month has the right to appeal. But the act of filing an appeal
does not stay the execution. The Ombudsman Rules of Procedure is
clear that an appeal does not stay execution.

Ferdie: The appeal does not stop the decision from becoming final and executory.
All acts of the public officer that appear to be illegal can be investigated by the
Ombudsman. You can file in any way. Even an anonymous letter. Even if there is
no complaint, the Ombudsman can act even if it’s just a newspaper report. They
should be an “activist.”

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