Professional Documents
Culture Documents
Law On Public Officers (Cruz)
Law On Public Officers (Cruz)
A PUBLIC OFFICE is the right, authority and duty, created and No vested interest (exception: constitutional offices) or absolute
conferred by law, by which for a given period, either fixed by law or right to hold an office
enduring at the pleasure of the creating power, an individual is Cannot be deprived of his office without a clear expression of the
invested with some portion of the sovereign functions of the state to be legislative will
exercised by him for the benefit of the body politic. The individual so
invested is a public officer.
The distinguishing factor is that the creation and conferring of an office Constitutional or statutory
involves a delegation to the individual of some of the sovereign National or local
functions of government, to be exercised by him for the benefit of the
Legislative, executive or judiciary
public.
Lucrative or honorary
Statute I. APPOINTMENT
Created by legislation or validly delegated legislative power (Bureau of
Mines, SEC, Code Commission, Sangguniang Panlungsod)
APPOINTMENT is defined as the act of designation by the appointing
officer, body, or board, to whom that power has been delegated, of the
Authority of Law individual who is to exercise the functions of a given office.
Established by implementing statutes mandated by the Constitution
(MMDA, NEDA) DELEGATION mere imposition of new duties on the officer to be
performed by him in a special manner (temporary in nature)
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be entitled to receive his salary at once, without awaiting the approval
The power of appointment is executive in nature and is vested by the of his appointment by the Commission.
Constitution in the President of the Philippines. Such power of the
President, being discretionary in nature, cannot be delegated. The Civil Service Commission is authorized to recall an appointment
initially approved in disregard of applicable provisions of the Civil
This power is not exclusively presidential. Also by constitutional Service Law and Regulations.
provision, it may be exercised by the Supreme Court, the
Constitutional Commissions, and the Congress. However, in certain Where a prospective vacancy will occur after the appointing authoritys
instances, the appointing power exercised by the President requires term, he cannot fill it in advance during his term, as this would be an
concurrence by the legislature. illegal pre-emption of the powers of his successor.
Appointing authority of the President under the Constitution Best evidence of the appointment:
--needs confirmation from Commission on Appointments-- Appointment must be in writing, embodied in what is known as the
(1) Heads of the executive departments commission
(2) Ambassadors, other public ministers and consuls
(3) Officers of the armed forces from the rank of colonel or naval Completing act of the appointment:
captain Delivery of the commission
(4) Those other officers whose appointments are vested in him by the
Constitution (Constitutional Commissions)
The only instance when an individual can be compelled to accept an
--no need for confirmation-- appointive office is in connection with the defense of the State.
(5) All other officers of the government whose appointments are not
provided for by the law
(6) Those whom he may be authorized by law to appoint
II. ELECTION
An appointment issued in accordance with pertinent laws and rule shall If the pardon is based on the innocence of the individual, or if the
take effect immediately upon its issuance by the appointing authority, executive clemency is granted to cover the administrative charges
and if the appointee has assumed the duties of the position, he shall for the same acts for which he was prosecuted (and later acquitted
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because he was found not to have committed the offense imputed Duration of qualifications
to him) in criminal proceedings, he no longer needs to apply for
The prescribed qualifications should be possessed at the earliest
reinstatement to his former position.
on the date indicated by the Constitution or the law.
RATIONALE
Limitations on the power of the legislature to prescribe
qualifications The members of the public dealing with the government are not
supposed to verify the credentials of every functionary exercising
(1) May not reduce or increase the qualifications prescribed in an official functions. They have the right to presume that he is the officer
exclusive manner he assumes to be.
(2) May prescribe only general qualifications
(3) Qualifications must be relevant to the office for which they are It is not only the acts of the lawful officer that are regarded as valid and
prescribed binding. Insofar as third persons are concerned, legal effect is also
accorded to certain acts of a person whose title is presumptively
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legitimate, that is, who reasonably appears to be the officer he
assumes to be, although he really does not have valid title to the EFFECTS OF ACTS OF DE FACTO OFFICERS
position he is holding. (de facto officer)
The lawful acts of an officer de facto, so far as the rights of third
persons are concerned, are, if done within the scope and by the
DEFINITION apparent authority of the office, considered as valid and binding as if
An officer de facto is one whose acts, though not those of a lawful he were the officer legally elected and qualified for the office and in full
officer, the law, upon principles of policy and justice, will hold valid so possession thereof.
far as they involve the interests of the public and thirds persons, where
the duties of the office were exercised: However, the de facto officer cannot benefit from his own status
(1) Without a known appointment or election, but under such because public policy demands that unlawful assumption of public
circumstances of reputation or acquiescence as were calculated office be discouraged. The individual is bound to verify his title to an
to induce people, without inquiry, to submit to or invoke his action, office. Thus, as a general rule, the de facto officer cannot claim a
supposing him to be the officer he assumes to be salary and other compensation for services rendered by him as such. If
(2) Under color of a known and valid appointment but have failed to he collected such salary, he may in fact be required to pay it back to
conform to some condition, precedent or requirement, as to take the de jure officer upon recognition of the latters title.
an oath, file a bond or the like
(3) Under color of a known appointment or election, void, because The de facto officer is subject to the same liabilities imposed on the de
the officer was not eligible, or because there was a want of power jure officer in the discharge of official duties, in addition to whatever
in the electing or appointing body, or by reason of some defect or special damages may be due from him because of his unlawful
irregularity in its exercise, such ineligibility, want of power, or assumption of office.
defect being unknown to the public
(4) Under color of an election or an appointment by or pursuant to a CHALLENGE TO A DE FACTO OFFICER
public, unconstitutional law before the same is adjudged to such
The authorized proceeding is quo warranto (or by what authority),
which is an action that may be brought against a person who usurps,
DISTINCTIONS intrudes into or unlawfully holds or exercises a public office, either by
the Solicitor General in the name of the Republic or by any person
de jure officer de facto officer claiming title to the office.
lawful title to the office but has actually possesses the office
not been able to take possession although he has an imperfect or
of it or has been ousted only colorable title thereto
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de facto officer may ripen into
intruder may grow into an officer
officer de jure as where he
de facto if his assumption of office CHAPTER 4
repairs his omission and takes
is acquiesced in, thereby
the required oath or post the The Civil Service
acquiring color of title to the office
needed bond
REQUISITES OF DE FACTO OFFICERSHIP GOCCs organized under special law Civil Service
(1) De jure office organized under Corporation Code Labor Code
If the person occupying a legitimate office was invalidly appointed
or elected thereto, or is not possessed of the necessary eligibility,
he is a de facto officer. But if what is defective is not the title to the The members of the Civil Service are regulated under Article IX-B of
office but the office itself, then the possessor thereof is not a de the Constitution, the Civil Service Decree, the Administrative Code of
facto officer. 1987 and the pertinent principles under the law of public officers.
(2) Color of title
Color of title is derived from reputation or acquiescence or from THE CIVIL SERVICE COMMISSION
an invalid appointment or election. As long as the defect in the It is the governments central personnel agency designated to set
appointment or election is unknown to the public, the occupant of standards and to enforce the laws and rules governing the
the office will have color of title and can be considered a de facto selection, utilization, training and discipline of civil servants.
officer. He must also be holding over in good faith.
(3) Physical possession of the office in good faith
The Commission is composed of a Chairman and two Commissioners,
The office must be actually held by the de facto officer if his acts complying with the following requirements:
are to affect the public and third persons. Any person who
professes to act officially but does not occupy a public office Natural-born citizens of the Philippines
cannot be considered an officer de facto and his acts are At least 35 years of age
absolutely void.
With proven capacity for public administration
Must not have been candidates for any elective position in the
elections immediately preceding their appointment
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Appointed by the President with the consent of the Commission on (2) Department Heads and other officials of Cabinet rank who
Appointments for a term of seven years without reappointment hold positions at the pleasure of the President and their
personal or confidential staff(s)
May be removed only by impeachment
(3) Chairman and members of commissions and boards with
fixed terms of office and their personal or confidential staff
OBJECTIVES
(4) Contractual personnel or those whose employment in the
Establish a career service and adopt measures to promote morale, government is in accordance with a special contract to
efficiency, integrity, responsiveness, progressiveness and courtesy undertake a specific work or job
in the civil service
(5) Emergency and seasonal personnel
Strengthen the merit and rewards system, integrate all human
resources and development programs for all levels and ranks, and
institutionalize a management climate conducive to public ELIGIBILITY
accountability Subject to the constitutional exceptions, appointees to the career
Ensure that personnel functions shall be decentralized, delegating service must possess the requisite eligibility to be established at
the corresponding authority to the departments, offices and appropriate examinations given by the Civil Service Commission
agencies where such functions can be effectively performed and the different agencies.
The board and bar examinations are considered civil service
examinations for the purposes of appointment to positions in the
SCOPE career service involving knowledge of the respective professions.
Government-owned or controlled corporations created by special Appropriate civil service eligibility is also granted to summa cum
law or given legislative charters and its subsidiaries and employees laude, magna cum laude and cum laude graduates of four-year
The Civil Service and labor laws and procedures, whenever degree courses under certain conditions.
applicable, shall be followed in the resolution of complaints,
grievances and cases involving government employees, and the
Bureau of Labor relations has original and exclusive authority to act APPOINTMENTS
on all inter-union and intra-union conflicts Appointments in the civil service shall be made only according to
merit and fitness to be determined by competitive examination.
These may be either permanent or temporary.
Positions in the Civil Service
1. Career Service Permanent Appointment Temporary Appointment
Characteristics Issued to a person who meets all Issued to a person who meets all
the requirements for the position the requirements for the position
(1) Entrance based on merit and fitness
to which he is being appointment to which he is being appointed,
(2) Opportunity for advancement to higher career positions except the appropriate civil
(3) Security of tenure service eligibility, in the absence
of appropriate eligible and it
Scope becomes necessary in the public
(1) Open Career positions for appointment to which prior interest to fill a vacancy
qualification in an appropriate examination is required Shall serve a probationary period Shall not exceed 12 months and
(2) Closed Career positions which are scientific or highly of 6 months, subject to character may be replaced sooner if a
technical in nature investigation and dropping for qualified civil service eligible
unsatisfactory conduct or want of becomes available (no fixed
(3) Positions in the Career Executive Service
capacity tenure, but can only be
(4) Career officers, other than those in the Career Executive terminated with just cause)
Service, who are appointed by the President, such as the
Foreign Service Officers in the Department of Foreign
Affairs May be granted the civil service
eligibility that will qualify them for
(5) Commissioned officers and enlisted men of the Armed
permanent appointment to their
Forces which shall maintain a separate merit system
positions if already rendered at
(6) Personnel of GOCCs, whether performing governmental least a total of 7 years of efficient
or proprietary functions, who do not fall under the non- service
career service
Provisional appointment vs Temporary appointment
(7) Permanent laborers, whether skilled, semi-skilled, or
unskilled Provisional appointment is issued to a person who has not qualified
in an appropriate examination but who otherwise meets the
2. Non-Career Service requirements for appointment to a regular position in the
Characteristics competitive service, whenever a vacancy occurs and the filling
thereof is necessary in the interest of the service and there in not
(1) Entrance on bases other than those of usual tests of merit appropriate register of eligible at the time of appointment.
and fitness utilized for the career service
Temporary appointment is given to a non-civil service eligible
(2) Tenure which is limited to a period specified by law, or without a definite tenure and is dependent upon the pleasure of the
which is co-terminous with that of the appointing authority appointing power.
or subject to his pleasure, or which is limited to the
duration of a particular project for which purpose of
employment was made Regular appointment Ad interim appointment
Scope Made during legislative session Made during the recess
(1) Elective officials and their personal or confidential staff
Made only after the nomination is Made before such confirmation
confirmed by the Commission on
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Appointments
OTHER PERSONNEL ACTIONS
Shall cease to be valid if
Once confirmed by the
disapproved by the Commission Any action denoting the movement or progress of personnel in the
Commission, continues until the civil service, including appointment through certification, promotion,
or upon the adjournment of the
end of the term of the appointee transfer, reinstatement, reemployment, detail, reassignment,
Congress
demotion and separation
Appointment is deemed by- Certification
passed through inaction of, and Intended to prevent a hiatus in
An appointment through certification to a position in the civil service
so disapproved impliedly by, the the discharge of official duties
is issued to a person who has been selected from a list of qualified
Commission
persons certified by the Commission from an appropriate register
Permanent appointment of eligibles
Transfer
Exceptions from the requirement for competitive examinations A transfer is a movement, requiring prior appointment, from one
position to another which is of equivalent rank, level or salary
(a) Policy-determining position without break in service involving the issuance of an appointment
One charged with the laying down of principal or fundamental (appealable to the Commission)
guidelines or rules, such as that of a department head Reinstatement
(b) Primarily confidential position Any person who has been permanently appointed, and not merely
Denotes close intimacy which ensures freedom of intercourse designated, to a position in the career service and who has,
without embarrassment or freedom from misgivings or through no delinquency or misconduct, been separated therefrom,
betrayals of personal trust or confidential matters of state; may be reinstated to a position in the same level for which he is
term lasts as long as confidence in them endures qualified
(c) Highly technical position Reemployment
Requires the appointee to possess technical skill or training in Names of persons who have been appointed permanently to
the supreme or superior degree positions in the career service and who have been separated as a
result of reduction in force and/ or reorganization, shall be entered
in a list from which selection for reemployment shall be made
PROMOTION
Detail
Advancement from one position to another with increase in
The movement of an employee from one agency to another without
duties and responsibilities as authorized by law and usually
the issuance of an appointment and shall be allowed, only for a
accompanied by increase in pay
limited period in the case of employees occupying professional,
Increase in salary should only be considered incidental but not technical and scientific positions (appealable to the Commission
determinative of promotion and executory, unless otherwise ordered, pending appeal
Generally made according to a merit promotion plan and a Reassignment
performance evaluation system established and implemented by
An employee may be reassigned from one organizational unit to
each department or agency another in the same agency, provided that such reassignment shall
Next in rank rule the person next in rank shall be given not involve a reduction in rank, status or salary
preference in the promotion when the position immediately above Demotion
his is vacated; if not appointed, the appointing authority must
specify the special reason or reasons for not appointing the The movement from one position to another involving the issuance
officer next-in-rank of an appointment with diminution in duties, responsibilities, status
or rank which may or may not involve reduction in salary
A qualified next-in-rank employee who is not satisfied with the (tantamount to removal, if done without just cause)
written reasons given by the appointing authority for his by-passing
may appeal, initially to the department head
PERSONNEL DEVELOPMENT
NEPOTISM To improve the attitude and competence of the civil service, each
department or agency is required to develop a career and
Nepotism, or favouritism toward relatives by the appointing personnel development plan which shall contain provisions for
authority, is prohibited merit promotion, performance evaluation, in-service training, job
The relations covered by the prohibition extend to the third degree rotation, suggestions and awards system, and such other plans for
of consanguinity or affinity employees health, welfare, counselling, recreation and similar
services
As provided in the Constitution, the spouse and relatives by
consanguinity or affinity within the fourth civil degree of the Employees shall have the right to present their complaints or
President shall not during his tenure be appointed as Members of grievances to management and have them adjudicated as
the Constitutional Commissions, or to the Office of the expeditiously as possible in the best interest of the agency, the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or government as a whole, and the employee concerned
heads of bureaus or offices, including GOCCs and their
subsidiaries
DISCIPLINE
Exceptions to the nepotism rule:
Officers and employees in the Civil Service, including those
(a) Persons employed in a confidential capacity appointed to policy-determining, primarily confidential and highly
(b) Teachers technical positions, enjoy security of tenure and may not be
suspended or dismissed except for cause as provided by law. They
(c) Physicians
may, however, be disciplined if they violate their public trust and fail
(d) Members of the Armed Forces of the Philippines to serve with utmost responsibility, integrity, loyalty, and efficiency
Charges of nepotism must be duly proved and act with patriotism and justice, and lead modest lives.
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Grounds 1. Filing of the complaint
Among the grounds for the discipline of members of the Civil Service 2. Filing of Counter-Affidavit/ Comment of the respondent under
are: oath within three days from receipt
Dishonesty 3. Preliminary investigation to determine whether or not a prima
facie case exists to warrant the issuance of a formal charge
Neglect of duty
Includes ex parte examination of records and documents, and
Misconduct
opportunity for the parties to submit affidavits and counter-
Disgraceful and immoral conduct affidavits
Incompetence in the performance of duty Failure of the respondent to submit his counter-affidavit is
Gross negligence tantamount to a waiver of said right
A conference may be held by the investigator to propound
clarificatory and other relevant questions
Jurisdiction
Investigation shall commence within 5 days from receipt of the
The Secretaries and heads of agencies and instrumentalities, complaint by the disciplining authority and shall be terminated
provinces, cities and municipalities shall have jurisdiction to within 30 days thereafter
investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Their decision shall Investigation report is required to be submitted within 5 days
be final in case the penalty imposed is suspension for not more from such termination
than 30 days or fine in an amount not exceeding 30 days salary. 4. Formal charge shall be issued if a prima facie case is
In case the decision rendered by a bureau or office head is established during preliminary investigation
appealable to the Commission, the same may be initially appealed In the absence of prima facie case, the complaint shall be
to the department and finally to the Commission and pending dismissed
appeal, the same shall be executor except when the penalty is
A complainant may elevate the decision dismissing a
removal, in which case the same shall be executory only after
complaint for lack of prima facie case before the Commission
confirmation by the Secretary concerned.
Proper through a petition for review within 15 days from
The Commission shall decide upon appeal all administrative receipt of said decision
disciplinary cases involving the imposition of a penalty of
Includes the specification of the charge(s), statement of
suspension for more than 30 days, or fine in an amount exceeding
material facts, and copies of documentary evidence
30 days salary, demotion in rank or salary transfer, removal or
dismissal from office. Failure to submit an answer within 5 days from receipt of
formal charge shall be considered a waiver of right to do so
A complaint may be filed directly with the Commission by a private
citizen against a government official or employee in which case it 5. An order of preventive suspension may be issued upon service
may hear and decide the case or it may deputize any department, of the formal charge
agency, official, or group of officials to conduct the investigation. Such order may be issued if the charge involves (1)
Disciplinary cases and cases involving personnel actions dishonesty, (2) oppression, (3) grave misconduct, (4) neglect
affecting employees in the civil service are within the exclusive in the performance of duty, or (5) if there are reasons to
jurisdiction of the Civil Service Commission, which is the sole believe that the respondent s guilty of the charges which
arbiter of controversies relating to the civil service. would warrant his removal from the service
Executive Order No. 151, or the Presidential Commission Against In lieu of preventive suspension, respondent may be
Graft and Corruption, exercises jurisdiction to investigate all reassigned to other units of the agency during formal hearings
administrative complaints involving graft and corruption filed in any 6. Formal investigation shall be held not earlier than 5 days nor
form or manner against presidential appointees in the executive later than 10 days from receipt of respondents answer
department of the government, including those in GOCCs. Such
jurisdiction extends to non-presidential appointees who may have It shall be finished within 30 days from the issuance of the
acted in conspiracy or who may have been involved with a formal charge or the receipt of the answer
presidential appointee. The period may be extended by the disciplining authority in
The Sandiganbayan has exclusive original jurisdiction over meritorious cases
presidents, directors or trustees, or managers of GOCCs, without 7. Pre-hearing conference may be conducted for the purpose of,
any distinction with respect to the manner of their creation, among others, providing for a stipulation of facts and the
whenever charges of graft and corruption are involved. simplification of issues
RA No. 4670, otherwise known as the Magna Carta for Public 8. Continuous hearings shall be held on dates agreed upon during
School Teachers, covers and governs administrative proceedings the preliminary conference
involving public school teachers.
If there was no preliminary conference, parties shall be given
notice of at least 5 days before the first scheduled hearing
Procedure Only 3 written motions for postponements shall be allowed,
General rule: A complaint against a civil service official or employee and a fourth motion may be granted subject to the discretion
shall not be given due course unless it is in writing and subscribed and of the disciplining authority
sworn to by the complainant. 9. A decision rendered by heads of agencies providing for a penalty
Exceptions: of suspension of not more than 30 days or a fine in an amount not
exceeding 30 days salary shall be final and executor
In cases initiated by the proper disciplining authority, the complaint
need not be under oath. If the fine imposed is suspension for more than 30 days or a
fine in an amount exceeding 30 days salary, it shall be final
An anonymous complaint shall be entertained only when there is and excutory only after the lapse of the 15-day period for the
obvious truth or merit to the allegations therein or supported by filing of a motion for reconsideration or appeal
documentary or direct evidence.
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preliminary injunction to secure the rights of the respondent
pending appeal of his dismissal.
Only one motion for reconsideration shall be allowed, and
only on any of the following grounds:
(a) Discovery of new evidence which materially affects the
decision rendered RIGHT TO SELF-ORGANIZATION
(b) Decision is not supported by the evidence on record All government employees, including those in GOCCs, except
(c) Errors of law members of the AFP, police officers, policemen, firemen and jail
guards, can form, join or assist employees organizations of their
own choosing for the furtherance and protection of their interests.
Preventive Suspension
High level employees whose functions are not normally considered
Preventive suspension is not a penalty in itself. as policy-making or managerial or whose duties are of a highly
Two kinds of preventive suspension of civil service employees: confidential nature shall not be eligible to join the organization of
rank-and-file government employees.
1. Preventive suspension pending investigation
Government employees organizations shall register with the
2. Preventive suspension pending appeal Commission and the DOLE which, with the support of the majority
An order of preventive suspension need not be preceded by a prior of the employees in their respective organizational units, shall be
notice and hearing since it is merely a preliminary step in an entitled to be designated as the sole and exclusive representatives
administrative investigation and it is not the final determination of of the employees.
guilt.
Although civil servants are now given the right to organize, they
When the case against an officer or employee under preventive may, however, not stage strikes.
suspension has not been finally decided within the period of 90
days, unless otherwise provided by special law, he shall be
automatically reinstated in the service.
o If the delay was due to the fault of the respondent, this should
not be included in the counting of the 90 calendar days ----------------------------------------------------------------------------------------------
o Maternity/ paternity leave is considered as interruption in the
counting of the 90 calendar days
CHAPTER 5
o Under the Local Government Code, the preventive suspension
of a local elective official shall not extend beyond 60 days, Authority of the Public Officer
provided that it shall not extend beyond 90 days in the event
that several administrative cases are filed against him
The respondent may move for the reconsideration of the order of
preventive suspension against him. The AUTHORITY OF THE PUBLIC OFFICER is derived from the
people themselves conformably to the constitutional principle that the
Philippines is a republican state. Sovereignty resides in the people and
Decision all government authority emanates from them. This authority is
conferred upon him either by the Constitution itself or by statute.
If the charges are not proved by a preponderance of evidence, the
case shall be dismissed and the respondent reinstated with back
salaries and benefits if preventively suspended. WHERE EXERCISED
In the determination of the penalties to be imposed, the The public officer may exercise his powers only within the territorial
extenuating, mitigating, aggravating or alternative circumstances limits of his authority and that any act performed outside that area will
may be considered. be null and void.
An appeal shall not stop the decision from being executory, and in
case the penalty is suspension or removal, the respondent shall be
considered as having been under preventive suspension during the WHEN EXERCISED
pendency of the appeal in the event he wins the appeal. The public officer may exercise his authority only during his term or
Being found liable for a lesser offense is not equivalent to office. Hence, any act performed by him after such term will be
exoneration. Likewise, an employee cannot be found considered invalid, except where he may be regarded as a de facto
administratively liable for acts not alleged in the formal charges. officer.
An appointment made by the President to fill an anticipated
vacancy occurring after his term will be invalid even if the
Appeal appointment itself was made during his term.
An appeal sent by mail shall be deemed filed on the date shown by Where an officer is authorized to hold over, his acts continue to be
the postmark on the envelope which shall be attached to the valid until his successor is duly chosen and subsequently qualifies.
records of the case and, in case of personal delivery, the date Such an officer is regarded as de jure and all his acts have the
stamped thereon by the proper office. same legal efficacy as of those performed by him before the
The Commission has the standing to appeal a decision which expiration of his fixed term.
adversely affects the civil service.
Decisions, order or rulings of the Commission may be brought to HOW EXERCISED
the Supreme Court on certiorari by the aggrieved party within 30
days from receipt of a copy thereof. The remedy of an aggrieved Representative government is a government of limited
party from a resolution issued by the Civil Service Commission is to powers. Any doubt on this matter shall be resolved in favour of the
file a petition for review under Rule 43 of the Rules of Court within public and against the exercise of the authority claimed.
15 days from notice of the resolution. The doctrine of necessary implication provides that all powers
Having appellate jurisdiction over decisions of the Commission, the necessary to the exercise of the power expressly granted are
Court of Appeals has the discretion to issue an ancillary writ of deemed impliedly granted. Where a general power is conferred or
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duly enjoined, every particular power necessary for the exercise of CHAPTER 6
the one or the performance of the other is also conferred.
Inhibitions
The claim of power may also be justified on the ground that the
power is inherent. An example is the police power, which may be
asserted by the national legislature despite the absence of
constitutional vesture.
An INHIBITION is a restraint upon the public officer against the doing
An administrative officer has only such powers as are of certain acts which may legally be done by others. It differs from
expressly granted to him and those necessarily implied in the disqualification, although the two terms are used interchangeably, in
exercise thereof. These powers should not be extended by that the latter denotes the lack of a needed eligibility for a certain
implication beyond what may be necessary for their just and office.
reasonable execution.
An officer to whom a discretion is entrusted cannot 4. No Senator or Member of the House of Representatives may
delegate it to another, the presumption being that he was personally appear as counsel before any court of justice or before
chosen because he was deemed fit and competent to exercise the Electoral Tribunals, or quasi-judicial and other administrative
that judgment and discretion, and unless the power to bodies. Neither shall he, directly or indirectly, be interested
substitute another in his place has been given to him, he financially in any contract with, or in any franchise or special
cannot delegate his duties to another. privilege granted by the Government, or any subdivision, agency,
or instrumentality thereof, including any government-owned or
If he has been given the discretion to act or not to act upon a controlled corporation, or its subsidiary, during his term of office.
certain matter, his decision not to act cannot be the subject of a He shall not intervene in any matter before any office of the
judicial reversal. Government for his pecuniary benefit or where he may be called
Discretion is not totally unlimited. It is restricted by the very upon to act on account of his office.
qualities that justified its confermentthe judgment and good 5. No member of a Constitutional Commission shall, during his
sense of the delegate. If these are not employed in the tenure, hold any other office or employment. Neither shall he
discharge of the duty, or if the duty was performed arbitrarily or engage in the practice of any profession or in the active
capriciously, or with disregard of rights, there results what is management or control of any business which, in any way, may be
known as a grave abuse of discretion, which may be affected by the functions of his office, nor shall he be financially
corrected in appropriate judicial proceedings. interested, directly or indirectly, in any contract with, or in any
2. Ministerial (specific action) franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-
The duty is ministerial when the officer is given little latitude owned or controlled corporations or their subsidiaries. This
in its discharge, prescribing and defining the time, mode and inhibition applies as well to the Ombudsman and his Deputies.
occasion of its performance with such certainty that nothing is
left for judgment or discretion. 6. No officer or employee in the civil service shall engage, directly or
indirectly, in any electioneering or partisan political campaign.
No particular qualification is required for the discharge of this
kind of duty because the law itself defines with precision the 7. No elective official shall be eligible for appointment or designation
occasion and manner of its exercise. Thus, the ministerial duty in any capacity to any public office or position during his tenure.
can be compelled by judicial action. Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including GOCCs or their subsidiaries.
8. No elective or appointive public officer or employee shall receive
additional, or indirect compensation, unless specifically authorized
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by law, nor accept without the consent of Congress any present
emolument, office, or title of any kind from any foreign government.
Pension or gratuities shall not be considered as additional, double,
or indirect compensation.
*Mara Martinez*
9. No loan, guaranty, or other form of financial accommodation for government, or any of its subdivisions, agencies, or
any business purpose may be granted, directly or indirectly, by any instrumentalities, including GOCCs or their subsidiaries.
government-owned or controlled bank or financial institution to the
Civil servants shall not strike against the Government as a means
President, the Vice-President, the Members of the Cabinet, the
of securing changes in the terms and conditions of employment.
Congress, the Supreme Court, and the Constitutional
Commissions, the Ombudsman, or to any firm or entity in which
they have controlling interest, during their tenure.
OTHER DISQUALIFICATIONS
All appointments in the national, provincial, city and municipal
CONSTITUTIONAL DISQUALIFICATIONS governments or in any branch or instrumentality thereof, including
GOCCs, made in favour of a relative within the third degree of
The spouse and relatives by consanguinity or affinity within the
consanguinity or affinity, or of the appointing or recommending
fourth civil degree of the President shall not during his tenure be
authority, or of the chief of the bureau of office, or of the person
appointed as Members of the Constitutional Commissions, or the
exercising immediate supervision over him, are prohibited.
Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including GOCCs and The following are disqualified from running for any elective local
their subsidiaries. position:
No Senator or Member of the House of Representatives shall be (a) Those sentenced by final judgment for an offense involving
appointed to any office which may have been created or the moral turpitude or for an offense punishable by 1 year or more
emoluments thereof increased during the term for which he was for imprisonment, within 2 years after serving sentence
elected. (b) Those removed from office as a result of an administrative
The members of the Supreme Court and of other courts case
established by law shall not be designated to any agency (c) Those convicted by final judgment for violating the oath of
performing quasi-judicial or administrative functions. allegiance to the Republic
Appointees to the Constitutional Commissions must not have been (d) Those with dual citizenship
candidates for any elective position in the elections immediately
(e) Fugitives from justice in criminal or non-political cases here or
preceding their appointment.
abroad
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
OTHER INHIBITIONS same right after the effectivity of the Local Government Code
No officer or employee of the government shall purchase directly or (g) The insane or feeble-minded
indirectly any property sold by the government for non-payment of
any tax, fee or any other public charge. Any such purchase shall be
void.
EFFECTS OF VIOLATION
Even if allowed by law or by the primary functions of his position, a
member of the Cabinet, undersecretary, assistant secretary or Sanctions for the violation of the inhibition will depend upon the law
other appointive official of the Executive Department may hold not imposing it or implementing the constitutional restriction.
more than two positions in the government and government
corporations and receive the corresponding compensation therefor:
Provided, that this limitation shall not apply to ad hoc bodies or
committees, or to boards, councils or bodies of which the President
is the Chairman. ----------------------------------------------------------------------------------------------
No judge or judicial officer shall sit in any case in which he, or his
wife or child, is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within the sixth CHAPTER 7
degree of consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in which
Salary and Perquisites
he has been executor, administrator, guardian, trustee or counsel,
or in which he has been presided in any inferior court when his
ruling or decision is the subject of review, without the written
consent of all parties in interest, signed by them and entered upon Purposes of compensation and perquisites
the record. A judge may, in the exercise of his sound discretion, 1. To attract competent men to the government service
disqualify himself from sitting in a case, for just or valid reasons
other than those mentioned above. 2. To lessen the temptation for graft as there would be little need for
the public officer to augment his income through illegal methods
No judge or other official or employee of the superior courts or of
3. To lend the necessary prestige to the office
the Office of the Solicitor General shall engage in private practice
as a member of the bar or give professional advice to clients. 4. To pay and to reward the public officer for the loyalty and dedicated
service
No Chairman or commissioner of the COMELEC shall sit in any
case in which he has manifested bias or prejudice or antagonism
against any party thereto and in connection therewith, or in any
case in which he would be disqualified under the Rules of Court.
SALARY
The Chairman and the Members of the Commission on Human
Rights shall not, during their tenure, hold any other office or Salary is not an essential element of a public office. In fact, there is
employment. Neither shall they engage in the practice of any such a thing as an honorary office, to which no compensation is
profession or in the active management or control of any business attached and where the incumbent is prepared and willing to serve
which in any way will be affected by the functions of their office, nor gratis.
shall they be financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the
*Mara Martinez*
SOURCE OF SALARY from the date of deprivation. A claim for back salaries cannot stand by
The salary of a public officer may be provided by the Constitution or by itself. It must be coupled with a claim for reinstatement. Claims for
statute. back salaries are subject to the prescriptive period of 1 year.
*Mara Martinez*