The Law of Public Officers

7/30/2019 The Law of Public Officers

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THE LAW OF PUBLIC OFFICERS

Define Appointment. Discuss its nature.

Held: An appointment to a public office is the unequivocal act of designating or selecting by one having the

authority therefor of an individual to discharge and perform the duties and functions of an office or trust. Theappointment is deemed complete once the last act required of the appointing authority has been complied with

and its acceptance thereafter by the appointee in order to render it effective. Appointment necessarily calls foran exercise of discretion on the part of the appointing authority. InPamantasan ng Lungsod ng Maynila v.

Intermediate Appellate Court, reiterated inFlores v. Drilon, this Court has held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may

exercise freely according to his judgment, deciding for himself who is best qualified among those who have thenecessary qualifications and eligibilities. It is a prerogative of the appointing power x x x.

Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of the

power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999, 3rdDiv. [Vitug])

May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the ground thatsomebody else is better qualified?

Held: The head of an agency who is the appointing power is the one most knowledgeable to decide who can

best perform the functions of the office. Appointment is an essentially discretionary power and must beperformed by the officer vested with such power according to his best lights, the only condition being that the

appointee should possess the qualifications required by law. If he does, then the appointment cannot be faultedon the ground that there are others better qualified who should have been preferred. Indeed, this is a prerogative

of the appointing authority which he alone can decide. The choice of an appointee from among those whopossess the required qualifications is a political and administrative decision calling for considerations of

wisdom, convenience, utility and the interests of the service which can best be made by the head of the officeconcerned, the person most familiar with the organizational structure and environmental circumstances within

which the appointee must function.

As long as the appointee is qualified the Civil Service Commission has no choice but to attest to and respect theappointment even if it be proved that there are others with superior credentials. The law limits the

Commissions authority only to whether or not the appointees possess the legal qualifications and theappropriate civil service eligibility, nothing else. If they do then the appointments are approved because the

Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither canwe. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J .])

Does the next-in-rank rule import any mandatory or peremptory requirement that the person next-in-rankmust be appointed to the vacancy?

Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a process which denotes a

scalar ascent of an officer to another position higher either in rank or salary. And even in promotions, it can bedisregarded for sound reasons made known to the next-in-rank, as the concept does not import any mandatory

or peremptory requirement that the person next-in-rank must be appointed to the vacancy. The appointingauthority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees,

reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, notnecessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion; the appointing

authority is given wide discretion to fill a vacancy from among the several alternatives provided by law.

What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding the positionnext in rank thereto shall be considered for promotion.

In Taduran v. Civil Service Commission, the Court construed that phrase to mean that the person next-in-rankwould be among the first to be considered for the vacancy, if qualified. In Santiago, Jr. v. Civil Service

Commission, the Court elaborated the import of the rule in the following manner:


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One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it doesnot necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the

holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higherposition x x x (Abila v. CSC, 198 SCRA 102, J une 3, 1991, En Banc [Feliciano])

Can a person who lacks the necessary qualifications for a public position be appointed to it in a permanentcapacity? Illustrative case.

Held: At the outset, it must be stressed that the position of Ministry Legal Counsel-CESO IV isembraced in the Career Executive Service. X x x

In the case at bar, there is no question that private respondent does not have the required CESeligibility. As admitted by private respondent in his Comment, he is not a CESO or a member of the Career

Executive Service.

In the case ofAchacoso v. Macaraig, et al., the Court held:

It is settled that a permanent appointment can be issued only to a person who meets all the requirements for theposition to which he s being appointed, including the appropriate eligibility prescribed. Achacoso did not. At

best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn atwill by the appointing authority and at a moments notice, conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in the petitionersReply and of the Solicitor-Generals Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure in

its occupant even if he does not possess the required qualifications. Such right will have to depend on thenature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the

requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to therule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The

appointment extended to him cannot be regarded as permanent even if it may be so designated.

Evidently, private respondents appointment did not attain permanency. Not having taken thenecessary Career Executive Service examination to obtain the requisite eligibility, he did not at the time of his

appointment and up to the present, possess the needed eligibility for a position in the Career ExecutiveService. Consequently, his appointment as Ministry Legal Counsel-CESO IV/Department Legal Counsel

and/or Director III, was merely temporary. Such being the case, he could be transferred or reassigned withoutviolating the constitutionally guaranteed right to security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly contending that themobility and flexibility concepts in the assignment of personnels under the Career Executive Service do not

apply to him because he s not a Career Executive Service Officer. Obviously, the contention is withoutmerit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to CES

positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would be apremium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not

enjoy.

Then too, the cases on unconsented transfer invoked by private respondent find no application in thepresent case. To reiterate, private respondents appointment is merely temporary; hence, he could be transferred

or reassigned to other positions without violating his right to security of tenure. (De Leon v. Court of Appeals,350 SCRA 1, J an. 22, 2001, En Banc [Ynares-Santiago])

In the career executive service, is a career executive service (CES) eligibility all that an employee needs toacquire security of tenure? Is appointment to a CES rank necessary for the acquisition of such security oftenure?

Held: In the career executive service, the acquisition of security of tenure which presupposes apermanent appointment is governed by the rules and regulations promulgated by the CES Board x x x.


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As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in thecareer executive service may attain security of tenure, to wit:

CES eligibility; and

Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in the career executive service (except

first and second level employees in the civil service), pertains only to rank and not to the office or to theposition to which they may be appointed. Thus, a career executive service officer may be transferred orreassigned from one position to another without losing his rank which follows him wherever he is transferred or

reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lowersalary grade, as he is compensated according to his CES rank and not on the basis of the position or office he

occupies.

In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does not possessthe appropriate CES rank, which isCES rank level V, for the position of Regional Director of the LTO

(Region V). Falling short of one of the qualifications that would complete his membership in the CES,respondent cannot successfully interpose violation of security of tenure. Accordingly, he could be validly

reassigned to other positions in the career executive service. x x x

Moreover, under the mobility and flexibility principles of the Integrated Reorganization Plan, CES personnelmay be reassigned or transferred from one position to another x x x.

One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not a CESeligible. The absence, however, of such CES eligibility is of no moment. As stated in Part III, Chapter I,

Article IV, paragraph 5(c), of the Integrated Reorganization Plan

x x x the President may, in exceptional cases, appoint any person who is not a Career Executive Serviceeligible; provided that such appointee shall subsequently take the required Career Executive Service

examination and that he shall not be promoted to a higher class until he qualified in such examination.

Evidently, the law allows appointment of those who are not CES eligible, subject to the obtention of saideligibility, in the same manner that the appointment of respondent who does not possess the required CES rank

(CES rank level V) for the position of Regional Director of the LTO, is permitted in a temporarycapacity. (General v. Roco, 350 SCRA 528, J an. 29, 2001, 1st Div. [Ynares-Santiago])

How are positions in the Civil Service classified? Discuss the characteristics of each.

Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2) Non-CareerPositions.

Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far as

practicable by competitive examination, or based on highly technical qualifications; (2) opportunity foradvancement to higher career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V,E.O. No. 292).

The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of merit or

fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which iscoterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration

of a particular project for which purpose employment was made (Sec. 9, Chap. 2, Subtitle A, Title I, Bk. V,E.O. No. 292).

What is a primarily confidential position? What is the test to determine whether a position is primarilyconfidential or not?

Held: Aprimarily confidential position is one which denotes not only confidence in the aptitude of the

appointee for the duties of the office but primarily close intimacy which ensures freedom from intercourse


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without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters ofstate. (De los Santos v. Mallare, 87 Phil. 289 [1950])

Under theproximity rule, the occupant of a particular position could be considered a confidential employee if

the predominant reason why he was chosen by the appointing authority was the latters belief that he can share aclose intimate relationship with the occupant which ensures freedom of discussion without fear or

embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal,where the position occupied is more remote from that of the appointing authority, the element of trust between

them is no longer predominant. (CSC v. Salas, 274 SCRA 414, J une 19, 1997)

Does the Civil Service Law contemplate a review of decisions exonerating officers or employees fromadministrative charges?

Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase partyadversely affected by the decision refers to the government employee against whom the administrative case is

filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary,transfer, removal or dismissal from office and not included are cases where the penalty imposed is suspension

for not more than thirty (30) days or fine in an amount not exceeding thirty days salary (Paredes v. CivilService Commission, 192 SCRA 84, 85)or when respondent is exonerated of the charges, there is no occasion

for appeal. (Mendez v. Civil Service Commission, 204 SCRA 965, 968) In other words, we overrule priordecisions holding that the Civil Service Law does not contemplate a review of decisions exonerating officers

or employees from administrative charges enunciated inParedes v. Civil Service Commission (192 SCRA 84);Mendez v. Civil Service Commission (204 SCRA 965); Magpale v. Civil Service Commission (215 SCRA 398);

Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 207) and more recentlyDel Castillo v. Civil Service Commission (237 SCRA 184).(CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April29, 1999, En Banc [Pardo])

What is preventive suspension? Discuss its nature.

Held: Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty

in itself. It is merely a measure of precaution so that the employee who is charged may be separated, forobvious reasons, from the scene of his alleged misfeasance while the same is being investigated. Thus

preventive suspension is distinct from the administrative penalty of removal from office such as the onementioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent during the

investigation of the charges against him, the latter is the penalty which may only be meted upon him at thetermination of the investigation or the final disposition of the case. (Beja, Sr. v. CA, 207 SCRA 689, March 31,1992 [Romero])

Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil service employeeplaced under preventive suspension be entitled to compensation?

Held: There are two kinds of preventive suspension of civil service employees who are charged with offensespunishable by removal or suspension: (1) preventive suspensionpending investigation(Sec. 51, Civil Service

Law, EO No. 292) and (2) preventive suspensionpending appealif the penalty imposed by the discipliningauthority is suspension or dismissal and, after review, the respondent is exonerated (Section 47, par. 4, Civil

Service Law, EO No. 292).

Preventive suspensionpending investigation is not a penalty. It is a measure intended to enable the disciplining

authority to investigate charges against respondent by preventing the latter from intimidating or in any wayinfluencing witnesses against him. If the investigation is not finished and a decision is not rendered within that

period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigationrespondent is found innocent of the charges and is exonerated, he should be reinstated. However, no

compensation was due for the period of preventive suspension pending investigation. The Civil Service Act of


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1959 (R.A. No. 2260) providing for compensation in such a case once the respondent was exonerated wasrevised in 1975 and the provision on the payment of salaries during suspension was deleted.

But although it is held that employees who are preventively suspendedpending investigation are not entitled to

the payment of their salaries even if they are exonerated, they are entitled to compensation for the period oftheir suspensionpending appealif eventually they are found innocent.

Preventive suspensionpending investigation x x x is not a penalty but only a means of enabling the disciplining

authority to conduct an unhampered investigation. On the other hand, preventive suspensionpending appealisactually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the

administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for theperiod of the suspension. (Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc [Mendoza])

Discuss the power of Ombudsman to conduct administrative investigations, and to impose preventivesuspension.

Held: Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman

to conduct administrative investigations is mandated by no less than the Constitution. x x x

R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct

administrative investigations. x x x

Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority x x x.

Petitioner is an elective local official accused of grave misconduct and dishonesty. That the Office of theOmbudsman may conduct an administrative investigation into the acts complained of, appears clear from the

foregoing provisions of R.A. 6770.

However, the question of whether or not the Ombudsman may conduct an investigation over a particular act oromission is different from the question of whether or not petitioner, after investigation, may be heldadministratively liable. This distinction ought here to be kept in mind even as we must also take note that the

power to investigate is distinct from the power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subjectto its administrative investigation is provided by specific provision of law. x x x

We have previously interpreted the phrase under his authority to mean that the Ombudsman can preventively

suspend all officials under investigation by his office, regardless of the branch of government in which they areemployed, excepting of course those removable by impeachment, members of Congress and the Judiciary.

The power to preventively suspend is available not only to the Ombudsman but also to the DeputyOmbudsman. This is the clear import of Section 24 of R.A. 6770 abovecited.

There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue

an order of preventive suspension against an official like the petitioner, to prevent that official from using hisoffice to intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21, 1999, p. 7, 306

SCRA 287) or to tamper with records that might be vital to the prosecution of the case against him (Yasay, Jr. v.Desierto, et al., G.R. No. 134495, December 28, 1998, p. 9, 300 SCRA 494). In our view, the present

controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and thecircumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set

the period of preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among other factors, the evidence

of guilt is strong. The period for which an official may be preventively suspended must not exceed sixmonths. In this case, petitioner was preventively suspended and ordered to cease and desist from holding office

for the entire period of six months, which is the maximum provided by law.


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The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension restswith the Ombudsman. The discretion as regards the period of such suspension also necessarily belongs to the

Ombudsman, except that he cannot extend the period of suspension beyond that provided by law. But, in ourview, both the strength of the evidence to warrant said suspension and the propriety of the length or period of

suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition. X x x

Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition ofpreventive suspension against petitioner. But considering its purpose and the circumstances in the case brought

before us, it does appear to us that the imposition of the maximum period of six months is unwarranted.

X x x [G]ranting that now the evidence against petitioner is already strong, even without conceding that initiallyit was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than

necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the periodduring which petitioner was already preventively suspended, has been sufficient for the lawful purpose of

preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses whowish to appear against him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2ndDiv. [Quisumbing])

Distinguish preventive suspension under the Local Government Code from preventive suspension under theOmbudsman Act.

Held: We reach the foregoing conclusion, however, without necessarily subscribing to petitioners claim that

the Local Government Code, which he averred should apply to this case of an elective local official, has beenviolated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and

only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance torefute first the charges against him, and for the maximum period of six months provided by the Ombudsman

Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinctfrom those initiated under the Local Government Code. Respondents point out that the shorter period of

suspension under the Local Government Code is intended to limit the period of suspension that may be imposedby a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast

the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly

motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whetherthere has been grave abuse of discretion in a specific case of preventive suspension.

Respondents may be correct in pointing out the reason for the shorter period of preventive suspensionimposable under the Local Government Code. Political color could taint the exercise of the power to suspend

local officials by the mayor, governor, or Presidents office. In contrast the Ombudsman, considering theconstitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents

would have us believe.

InHagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped of his

power to investigate local elective officials by virtue of the Local Government Code, we said:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly orimpliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question

are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other.

It was also argued inHagad, that the six-month preventive suspension under the Ombudsman Law is

much too repugnant to the 60-day period that may be imposed under the Local Government Code. But per J.Vitug, the two provisions govern differently.

However, petitioner now contends thatHagaddid not settle the question of whether a local elective

official may be preventively suspended even before the issues could be joined. Indeed it did not, but we have

held in other cases that there could be preventive suspension even before the charges against the official areheard, or before the official is given an opportunity to prove his innocence. Preventive suspension is merely apreliminary step in an administrative investigation and is not in any way the final determination of the guilt of

the official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section 26[2] ofthe Ombudsman Law x x x.


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Petitioner argues that before an inquiry may be converted into a full-blown administrativeinvestigation, the official concerned must be given 72 hours to answer the charges against him. In his case,

petitioner says the inquiry was converted into an administrative investigation without him being given therequired number of hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer

to the complaint against him. This, however, does not make invalid the preventive suspension order issuedagainst him. As we have earlier stated, a preventive suspension order may be issued even before the charges

against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaintfiled by respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of the Rules of

Procedure of the Office of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2ndDiv.[Quisumbing])

Does Section 13, Republic Act No. 3019 exclude from its coverage the members of Congress and, therefore,the Sandiganbayan erred in decreeing the preventive suspension order against Senator Miriam Defensor-Santiago? Will the order of suspension prescribed by Republic Act No. 3019 not encroach on the power ofCongress to discipline its own ranks under the Constitution?

Held: The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive

suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from anygovernment position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of

the suspension order.

The authority of the Sandiganbayan to order the preventive suspension of an incumbent public officialcharged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. X

x x

In the relatively recent case ofSegovia v. Sandiganbayan, the Court reiterated:

The validity of Section 13, R.A. 3019, as amended treating of the suspensionpendente lite of an accused

public officermay no longer be put at issue, having been repeatedly upheld by this Court.

The provision of suspensionpendente lite applies to all persons indicted upon a valid information under theAct, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the

career or non-career service. (At pp. 336-337)

It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon

determination of the validity of the information filed before it. Once the information is found to be sufficient inform and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to

be no ifs and butsabout it. Explaining the nature of the preventive suspension, the Court in the case ofBayotv. Sandiganbayan:

x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the

official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receiveduring suspension.

In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear andunequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld

Sandiganbayans authority to decree the suspension of public officials and employees indicted before it.

Section 13 of Republic Act No. 3019 does not state that the public officer concerned must besuspended only in the office where he is alleged to have committed the acts with which he has been

charged. Thus, it has been held that the use of the word office would indicate that it applies to any officewhich the officer charged may be holding, and not only the particular office under which he stands accused.

(Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)


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En passant, while the imposition of suspension is not automatic or self-operative as the validity of theinformation must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct

thereof. It has been said that

x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accusedshould be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL

PROCEEDINGS against him, e.g., that he has not been afforded the right of due preliminary investigation; thatthe acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019 or the

bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office underSection 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for

in Rule 117 of the Rules of Court x x x.

Likewise, he is accorded the right to challenge the propriety of his prosecution on theground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions

on bribery of the Revised Penal Code, and the right to present a motion to quash the information on any othergrounds provided in Rule 117 of the Rules of Court.

However, a challenge to the validity of the criminal proceedings on the ground that the acts for which theaccused is charged do not constitute a violation of the provisions of Rep. Act No. 3019, or of the provisions on

bribery of the Revised Penal Code, should be treated only in the same manner as a challenge to the criminalproceeding by way of a motion to quash on the ground provided in Paragraph (a), Section 2 of Rule 117 of the

Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a resolution of thechallenge to the validity of the criminal proceeding, on such ground, should be limited to an inquiry whether the

facts alleged in the information, if hypothetically admitted, constitute the elements of an offense punishableunder Rep. Act 3019 or the provisions on bribery of the Revised Penal Code. (Luciano v. Mariano, 40 SCRA

187 [1971]; People v. Albano, 163 SCRA 511, 517-519 [1988])

The law does not require that the guilt of the accused must be established in a pre-suspensionproceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the

strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3) whether or not

his continuance in office could influence the witnesses or pose a threat to the safety and integrity of the recordsand other evidence before the court could have a valid basis in decreeing preventive suspension pending thetrial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of

the proceedings against him, such as, that he has not been afforded the right to due preliminary investigation,that the acts imputed to him do not constitute a specific crime warranting his mandatory suspension from office

under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the groundsset out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure.

The pronouncement, upholding the validity of the information filed against petitioner, behooved

Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congressto discipline its own ranks under the Constitution which provides that each

x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, withthe concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when

imposed, shall not exceed sixty days. (Section 16[3], Article VI, 1987 Constitution)

The suspension contemplated in the above constitutional provision is a punitive measure that is

imposed upon determination by the Senate or the House of Representatives, as the case may be, upon an erringmember. Thus, in its resolution in the case ofCeferino Paredes, Jr. v. Sandiganbayan, et al., the Court

affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on

the encroachment by the court on the prerogatives of Congress. The Court ruled:

x x x Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of

each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel aMember by a vote of two-thirds of all its Members subject to the qualification that the penalty of suspension,

when imposed, should not exceed sixty daysin unavailing, as it appears to be quite distinct from thesuspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure,


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prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of theHouse of Representatives.

The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members of

Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the threeco-equal and independent, albeit coordinate, branches of the governmentthe Legislative, the Executive and

the Judiciaryhas exclusive prerogatives and cognizance within its own sphere of influence and effectivelyprevents one branch from unduly intruding into the internal affairs of either branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers

the Court to act not only in the settlement of actual controversies involving rights which are legallydemandable and enforceable, but also in the determination of whether or not there has been a grave abuse of

discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of thegovernment. The provision allowing the Court to look into any possible grave abuse of discretion committed

by any government instrumentality has evidently been couched in general terms in order to make it malleable tojudicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to

imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess ofjurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive,

the Court subscribes to the view that unless an infringement of any specific Constitutional proscription thereby

inheres the Court should not deign substitute its own judgment over that of any of the other two branches ofgovernment. It is an impairment or a clear disregard of a specific constitutional precept or provision that canunbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive

to contemporary needs, it is the people, not the Court, who must promptly react in the manner prescribed by theCharter itself.

Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, theSandiganbayan did not err in thus decreeing the assailed preventive suspension order.

Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of the

Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it

appropriate to render this decision for future guidance on the significant issue raised by petitioner. (Santiago v.Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc [Vitug])

May an elective public official be validly appointed or designated to any public office or position during histenure?

Ans.: No elective official shall be eligible for appointment or designation in any capacity to anypublic office or position during his tenure. (Sec. 7, 1st par., Art. IX-B, 1987 Constitution)

May an appointive public official hold any other office or employment?

Ans.: Unless otherwise allowed by law or by the primary functions of his position, no appointiveofficial shall hold any other office or employment in the Government or any subdivision, agency or

instrumentality thereof, including government-owned or controlled corporation. (Sec. 7, 2ndpar., Art. IX-B,1987 Constitution)

May the President, Vice-President, Members of the Cabinet, their deputies or assistants hold any other officeor employment?

Ans.: The President, Vice-President, the Members of the Cabinet, and their deputies or assistants

shall not, unless otherwise provided in this Constitution, hold any other office or employment during theirtenure. (Sec. 13, Art. VII, 1987 Constitution)

Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their

deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general underSection 7, par. (2), Article IX-B?


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Held: The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad

exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easyreference is quoted anew, thus: 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 orinstrumentality thereof, including government-owned or controlled corporation or their subsidiaries.

We rule in the negative.

The practice of designating members of the Cabinet, their deputies and assistants as members of the

governing bodies or boards of various government agencies and instrumentalities, including government-ownedand controlled corporations, became prevalent during the time legislative powers in this country were exercised

by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation ofnewly-created agencies, instrumentalities and government-owned and controlled corporations created by

presidential decrees and other modes of presidential issuances where Cabinet members, their deputies orassistants were designated to head or sit as members of the board with the corresponding salaries, emoluments,

per diems, allowances and other perquisites of office. X x x

This practice of holding multiple offices or positions in the government soon led to abuses by

unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. X x x

Particularly odious and revolting to the peoples sense of propriety and morality in governmentservice were the data contained therein that Roberto v. Ongpin was a member of the governing boards of

twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three(23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo

Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono oftwelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia

Bautista and Teodoro Q. Pena of ten (10) each.

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the

Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of thepeople that the 1986 Constitutional Commission, convened as it was after the people successfully unseatedformer President Marcos, should draft into its proposed Constitution the provisions under consideration which

are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental officesand employment. X x x

But what is indeed significant is the fact that although Section 7, Article IX-B already contains ablanket prohibition against the holding of multiple offices or employment in the government subsuming both

elective and appointive public officials, the Constitutional Commission should see it fit to formulate anotherprovision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet,

their deputies and assistants from holding any other office or employment during their tenure, unless otherwise

provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in

question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President andhis official family in so far as holding other offices or employment in the government or elsewhere is

concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions

of the Constitution on the disqualifications of certain public officials or employees from holding other offices oremployment. Under Section 13, Article VI, [N]o Senator or Member of the House of Representatives may

hold any other office or employment in the Government x x x. Under section 5(4), Article XVI, [N]o member

of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position inthe Government, including government-owned orcontrolled corporations or any of their subsidiaries. EvenSection 7(2), Article IX-B, relied upon by respondents provides [U]nless otherwise allowed by law or by the

primary functions of his position, no appointive official shall hold any other office or employment in theGovernment.

It is quite notable that in all these provisions on disqualifications to hold other office or employment,

the prohibition pertains to an office or employment in the governmentand government-owned or controlled


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corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that[T]he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless

otherwise provided in this Constitution, hold any other office or employment during their tenure. In the latterprovision, the disqualification is absolute, not being qualified by the phrase in the Government. The

prohibition imposed on the President and his official family is therefore all-embracing and covers both publicand private office or employment.

Going further into Section 13, Article VII, the second sentence provides: They shall not, during said

tenure, directly or indirectly, practice any other profession, participate in any business, or be financiallyinterested in any contract with, or in any franchise, or special privilege granted by the Government or any

subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or theirsubsidiaries. These sweeping, all-embracing prohibitions imposed on the President and his official family,

which prohibitions are not similarly imposed on other public officials or employees such as the Members ofCongress, members of the civil service in general and members of the armed forces, are proof of the intent of

the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon saidclass stricter prohibitions.

Thus, while all other appointive officials in the civil service are allowed to hold other office or

employment in the government during their tenure when such is allowed by law or by the primary functions of

their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorizedby the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general ruleapplicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant

to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputiesand assistants.

This being the case, the qualifying phrase unless otherwise provided in this Constitution in Section13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987

Constitution. To construe said qualifying phrase as respondents would have us to do, would render nugatoryand meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter

prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect

to holding other offices or employment in the government during their tenure. Respondents interpretation thatSection 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliteratethe distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the

Executive Branch from the President to assistant Secretary, on the one hand, and the generality of civil servantsfrom the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or

position in the government during their tenure.

Moreover, respondents reading of the provisions in question would render certain parts of theConstitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of

Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as anelective public official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible for appointment or

designation in any capacity to any public office or position during his tenure. Surely, to say that the phraseunless otherwise provided in this Constitution found in Section 13, Article VII has reference to Section 7, par.

(1) of Article IX-B would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet (Sec. 3, Ibid.), and to act as President without relinquishing the

Vice-Presidency where the President shall not have been chosen or fails to qualify (Sec. 7, Article VII). Suchabsurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e.,

Section 7, par. (1) of Article IX-B providing the general rule and the other, i.e., Section 13, Article VII asconstituting the exception thereto. In the same manner must Section 7, par. (2) of Article IX-B be construed

vis--vis Section 13, Article VII.

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on

the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holdingmultiple offices or employment in the government during their tenure, the exception to this prohibition must be

read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must beunderstood as intended to be a positive and unequivocal negation of the privilege of holding multiple

government offices and employment. Verily, wherever the language used in the constitution is prohibitory, it isto be understood as intended to be a positive and unequivocal negation (Varney v. Justice, 86 Ky 596; 6 S.W.

457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The phrase unless otherwise provided in this Constitutionmust be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to


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wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; oracting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary

of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

It being clear x x x that the 1987 Constitution seeks to prohibit the President, Vice-President,members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or

employment in the government, except in those cases specified in the Constitution itself and as above clarifiedwith respect to posts held without additional compensation in an ex-officio capacity as provided by law and as

required by the primary functions of their office, the citation of Cabinet members (then called Ministers) asexamples during the debate and deliberation on the general rule laid down for all appointive officials should be

considered as mere personal opinions which cannot override the constitutions manifest intent and the peoplesunderstanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),

Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 isunconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or

assistant secretaries may hold in addition to their primary position to not more than two (2) positions in thegovernment and government corporations, Executive Order No. 284 actually allows them to hold multiple

offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987

Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strictapplication of the prohibition mandated under Section 13, Article VII on the operations of the Government,

considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason oftheir primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by

the executive official concerned without additional compensation as provided by law and as required by theprimary functions of his office do not fall under the definition of any other office within the contemplation of

the constitutional prohibition. With respect to other offices or employment held by virtue of legislation,including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries,

suffice it to say that the feared impractical consequences are more apparent than real. Being head of an

executive department is no mean job. It is more than a full-time job, requiring full attention, specializedknowledge, skills and expertise. If maximum benefits are to be derived from a department heads ability andexpertise, he should be allowed to attend to his duties and responsibilities without the distraction of other

governmental offices or employment. He should be precluded from dissipating his efforts, attention and energyamong too many positions and responsibility, which may result in haphazardness and inefficiency. Surely the

advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stageof our national and economic development, far outweigh the benefits, if any, that may be gained from a

department head spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the Court hereby ordersrespondents x x x to immediately relinquish their other offices or employment, as herein defined, in the

government, including government-owned or controlled corporations and their subsidiaries. (CivilLiberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ ])

Does the prohibition against holding dual or multiple offices or employment under Section 13, Article VII ofthe Constitution apply to posts occupied by the Executive officials specified therein without additionalcompensation in an ex-officio capacity as provided by law and as required by the primary functions of saidofficials office?

Held: The prohibition against holding dual or multiple offices or employment under Section 13,

Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executiveofficials specified therein without additional compensation in an ex-officio capacity as provided by law and as

required(As opposed to the term allowed used in Section 7, par. (2), Article IX-B of the Constitution, whichis permissive. Required suggests an imposition, and therefore, obligatory in na ture) by the primary functions

of said officials office. The reason is that these posts do not comprise any other office within thecontemplation of the constitutional prohibition but are properly an imposition of additional duties and functions

on said officials. To characterize these posts otherwise would lead to absurd consequences, among which are:The President of the Philippines cannot chair the National Security Council reorganized under Executive Order

No. 115. Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense,Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to


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exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, wouldalso be prohibited.

Indeed, the framers of our Constitution could not have intended such absurd consequences. A

Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demandingthe impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided.

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions

held without additional compensation in ex-officio capacities as provided by law and as required by the primaryfunctions of the concerned officials office. The term ex-officio means from office; by virtue of office. It

refers to an authority derived from official character merely, not expressly conferred upon the individualcharacter, but rather annexed to the official position.Ex officio likewise denotes an act done in an official

character, or as a consequence of office, and without any other appointment or authority than that conferred bythe office. An ex-officio member of a board is one who is a member by virtue of his title to a certain office,

and without further warrant or appointment. To illustrate, by express provision of law, the Secretary ofTransportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority

(Sec. 7, E.O. 778), and the Light Rail Transit Authority (Sec. 1, E.O. 210).

The Court had occasion to explain the meaning of an ex-officio position inRafael v. Embroidery and

Apparel Control and Inspection Board, thus: An examination of Section 2 of the questioned statute (R.A.3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the

respective department heads. With the exception of the representative from the private sector, they sit ex-officio. I order to be designated they must already be holding positions in the offices mentioned in the

law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, underthe act, be designated a representative from that office. The same is true with respect to the representatives

from the other offices. No new appointments are necessary. This is as it should be, because the representativesso designated merely perform duties in the Board in addition to those already performed under their original

appointments.

The term primary used to describe functions refers to the order ofimportance and thus means

chief or principal function. The term is not restricted to the singular but may refer to the plural (33A Words andPhrases, p. 210). The additional duties must not only be closely related to, but must be required by theofficials primary functions. Examples of designations to positions by virtue of ones primary functions are the

Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary ofTransportation and Communications acting as Chairman of the Maritime Industry Authority and the Civil

Aeronautics Board.

If the functions to be performed are merely incidental, remotely related, inconsistent, incompatible, orotherwise alien to the primary function of a cabinet official, such additional functions would fall under the

purview of any other office prohibited by the Constitution. An example would be the Press Undersecretarysitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies

to such positions which confer on the cabinet official management functions and/or monetary compensation,such as but not limited to chairmanships or directorships in government-owned or controlled corporations andtheir subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their

deputies or assistants which are not inconsistent with those already prescribed by their offices or appointmentsby virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-

recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction,continuity and coordination among the different offices in the Executive Branch in the discharge of its

multifarious tasks of executing and implementing laws affecting national interest and general welfare anddelivering basic services to the people. It is consistent with the power vested on the President and his alter egos,

the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure thatthe laws are faithfully executed. Without these additional duties and functions being assigned to the President

and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities inan ex-officio capacity as provided by law and as required by their primary functions, they would be deprived of

the means for control and supervision, thereby resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress theprohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions


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must be required by the primary functions of the official concerned, who is to perform the same in an ex-officiocapacity as provided by law, without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows

that the official concerned has no right to receive additional compensation for his services in the saidposition. The reason is that these services are already paid for and covered by the compensation attached to his

principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the MonetaryBoard as an ex-officio member thereof, he is actually and in legal contemplation performing the primary

function of his principal office in defining policy in monetary and banking matters, which come under thejurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra

compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other sucheuphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution.(Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ ])

Should members of the Cabinet appointed to other positions in the government pursuant to Executive OrderNo. 284 which later was declared unconstitutional by the SC for being violative of Section 13, Article VI I ofthe Constitution be made to reimburse the government for whatever pay and emoluments they received fromholding such other positions?

Held: During their tenure in the questioned positions, respondents may be considered de factoofficers and as such entitled to emoluments for actual services rendered. It has been held that in cases where

there is no de jure officer, a de facto officer, who, in good faith has had possession of the office and hasdischarged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an

appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is,undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services

of an officerde facto and then be freed from all liability to pay any one for such services. Any per diem,allowances or other emoluments received by the respondents by virtue of actual services rendered in the

questioned positions may therefore be retained by them. (Civil L iberties Union v. Executive Secretary, 194SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ ])

May a Senator or Congressman hold any other office or employment?

Ans.: No Senator or Member of the House of Representatives may hold any other office or

employment in the government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall

he be appointed to any office which may have been created or the emoluments thereof increased during the termfor which he was elected. (Sec. 13, Art. VI, 1987 Constitution).

What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of arelative within the third civil degree of consanguinity or affinity of any of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office; and

d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the

appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment isextended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of

the bureau or office, or the person exercising immediate supervision over the appointee. (CSC v. Pedro O.Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])


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What are the exemptions from the operation of the rules on nepotism?

Ans.: The following are exempted from the operation of the rules on nepotism: (a) persons employed in aconfidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines.

The rules on nepotism shall likewise 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 sameoffice or bureau, in which event the employment or retention therein of both husband and wife may be allowed.

(Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

What is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases?

Held: 1. A public official cannot be removed for administrative misconduct committed during a prior term,since his re-election to office operates as a condonation of the officers previous misconduct to the extent of

cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases

pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])

2. A reelected local official may not be held administratively accountable for misconduct committed during his

prior term of office. The rationale for this holding is that when the electorate put him back into office, it ispresumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed

with such knowledge, it still reelects him, then such reelection is considered a condonation of his pastmisdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999

[Quisumbing])

What is the Doctrine of Condonation? Illustrative case.

Held: Petitioner contends that, per our ruling inAguinaldo v. Santos, his reelection has rendered the

administrative case filed against him moot and academic. This is because his reelection operates as acondonation by the electorate of the misconduct committed by an elective official during his previous

term. Petitioner further cites the ruling of this Court inPascual v. Hon. Provincial Board of Nueva Ecija, citingConant v. Brogan, that

x x x When the people have elected a man to office, it must be assumed that they did this with knowledge of

his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty ofany. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the

people.

Respondents, on the other hand, contend that while the contract in question was signed during the previous term

of petitioner, it was to commence or be effective only on September 1998 or during his current term. It is therespondents submission that petitioner went beyond the protective confines of jurisprudence when he

agreed to extend his act to his current term of office.Aguinaldo cannot apply, according to respondents,because what is involved in this case is a misconduct committed during a previous term but to be effective

during the current term.

Respondents maintain that,

x x x petitioner performed two acts with respect to the contract: he provided for a suspensive period makingthe supply contract commence or be effective during his succeeding or current term and during his current termof office he acceded to the suspensive period making the contract effective during his current term by causing

the implementation of the contract.

Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents.


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Further, respondents point out that the contract in question was signed just four days before the dateof the 1998 election and so it could not be presumed that when the people of Cebu City voted petitioner to

office, they did so with full knowledge of petitioners character.

On this point, petitioner responds that knowledge of an officials previous acts is presumed and thecourt need not inquire whether, in reelecting him, the electorate was actually aware of his prior misdeeds.

Petitioner cites our ruling in Salalima v. Guingona, wherein we absolved Albay governor Ramon R.

Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm duringhis previous term, although disbursements of public funds to cover payments under the agreement were still

being done during his subsequent term. Petitioner argues that, following Salalima, the doctrine ofAguinaldoapplies even where the effects of the acts complained of are still evident during the subsequent term of the

reelected official. The implementation of the contract is a mere incident of its execution. Besides, according topetitioner, the sole act for which he has been administratively charged is the signing of the contract with F.E.

Zuellig. The charge, in his view, excludes the contracts execution or implementation, or any act subsequent tothe perfection of the contract.

In Salalima, we recall that the Solicitor General maintained thatAguinaldo did not apply to that casebecause the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he

filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied theAguinaldo doctrine, even if the administrative case against Governor Salalima was filed after his reelection.

We now come to the concluding inquiry. Granting that the Office of the Ombudsman may

investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of office;and that it may preventively suspend him for a reasonable period, can that office hold him administratively

liable for said acts?

In a number of cases, we have repeatedly held that a reelected local official may not be heldadministratively accountable for misconduct committed during his prior term of office. The rationale for this

holding is that when the electorate put him back into office, it is resumed that it did so with full knowledge of

his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, thensuch reelection is considered a condonation of his past misdeeds.

However, in the present case, respondents point out that the contract entered into by petitioner with

F.E. Zuellig was signed just four days before the date of the elections. It was not made an issue during theelection, and so the electorate could not be said to have voted for petitioner with knowledge of this particular

aspect of his life and character.

For his part, petitioner contends that the only conclusive determining factor as regards the peoplesthinking on the matter is an election. On this point we agree with petitioner. That the people voted for an

official with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual

terms, the extent of this knowledge. Such an undertaking will obviously be impossible. Our rulings on thematter do not distinguish the precise timing or period when the misconduct was committed, reckoned from thedate of the officials reelection, except that it must be prior to said date.

As held in Salalima,

The rule adopted inPascual, qualified inAguinaldo insofar as criminal cases are concerned, is still a goodlaw. Such a rule is not only founded on the theory that an officials reelection expresses the sovereign will of

the electorate to forgive or condone any act or omission constituting a ground for administrative disciplinewhich was committed during his previous term. We may add thatsound policy dictates it. To rule otherwise

would open the floodgates to exacerbating endless partisan contests between the reelected official and his

political enemies, who may not stop to hound the former during his new term with administrative cases for actsalleged to have been committed during his previous term. His second term may thus be devoted to defendinghimself in the said cases to the detriment of public service x x x.

The above ruling in Salalima applies to this case. Petitioner cannot anymore be held administratively liable for

an act done during his previous term, that is, his signing of the contract with F.E. Zuellig.


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The assailed retainer agreement in Salalima was executed sometime in 1990. GovernorSalalima wasreelected in 1992 and payments for the retainer continued to be made during his succeeding term. This situation

is no different from the one in the present case, wherein deliveries of the asphalt under the contract with F.E.Zuellig and the payments therefor were supposed to have commenced on September 1998, during petitioners

second term.

However, respondents argue that the contract, although signed on May 7, 1998, during petitionersprior term, is to be made effective only during his present term.

We fail to see any difference to justify a valid distinction in the result. The agreement between

petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, duringpetitioners prior term. At that moment, petitioner already acceded to the terms of the contract, including

stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have insigning the contract already became extant on the day the contract was signed. It hardly matters that the

deliveries under the contract are supposed to have been made months later.

While petitioner can no longer be held administratively liable for signing the contract with F.E.

Zuellig, however, this should not prejudice the filing of any case other than administrative againstpetitioner. Our ruling in this case, may not be taken to mean the total exoneration of petitioner for whatever

wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is limited to thequestion of whether or not he may be held administratively liable therefor, and it is our considered view that he

may not. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2ndDiv. [Quisumbing])

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her tothe Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, canauthorize such reappointment. Moreover, petitioner maintains that a reassignment without her consentamounts to removal from office without due process and therefore illegal.

Held: Petitioners posturing will hold water if Benipayo does not possess any color of title to theoffice of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC

Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his adinterim appointment remains effective. X x x. The Chairman, as the Chief Executive of the COMELEC, is

expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with theCivil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of

the COMELEC en banc.

Petitioners appointment papers x x x indisputably show that she held her Director IV position in theEID only in an actingortemporary capacity. Petitioner is not a Career Executive Service (CES), and neither

does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position

of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil ServiceCommission. Obviously, petitioner does not enjoy security of tenure as Director IV. X x x

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary

qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignmentwas contrary to the Civil Service Law. X x x

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section

261 (h) of the Omnibus Election Code x x x.

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or

reassignments of COMELEC personnel during the election period. Moreover, petitioner insists that theCOMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the electionperiod.

Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 datedNovember 6, 2000, exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. X x x


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The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer orreassignment can be made within thirty days prior to election day, refers only to COMELECfieldpersonnel and

not to head office personnel like the petitioner. Under the Revised Administrative Code, the COMELECChairman is thesole officerspecifically vested with the power to transfer or reassign COMELEC

personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELECpersonnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself

this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banccannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel

should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 torequire such concurrence will render the resolution meaningless since the COMELEC en banc will have to

approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need

of securing a second approval from the COMELEC en banc to actually implement such transfer orreassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC

personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in

COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during theelection period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does notviolate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating

Cinco Officer-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002,En Banc [Carpio])

May the appointment of a person assuming a position in the civil service under a completed appointment bevalidly recalled or revoked?

Held: It has been held that upon the issuance of an appointment and the appointees assumption of the positionin the civil service, he acquires a legal right which cannot be taken away either by revocation of theappointment or by removal except for cause and with previous notice and hearing. Moreover, it is well-settled

that the person assuming a position in the civil service under a completed appointment acquires a legal, not justan equitable, right to the position. This right is protected not only by statute, but by the Constitution as well,

which right cannot be taken away by either revocation of the appointment, or by removal, unless there is validcause to do so, provided that there is previous notice and hearing.

Petitioner admits that his very first official act upon assuming the position of town mayor was to issue OfficeOrder No. 95-01 which recalled the appointments of the private respondents. There was no previous notice,

much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove the

private respondents without regard for the simple requirements of due process of law. While he argues that theappointing power has the sole authority to revoke said appointments, there is no debate that he does not haveblanket authority to do so. Neither can he question the CSCs jurisdiction to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically

provides that an appointment accepted by the appointee cannot be withdrawn or revoked by the appointingauthority and shall remain in force and in effect until disapproved by the Commission. Thus, it is the CSC that

is authorized to recall an appointment initially approved, but only when such appointment and approval areproven to be in disregard of applicable provisions of the civil service law and regulations.

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately uponits issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be

entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. Theappointment shall remain effective until disapproved by the Commission. In no case shall an appointment take

effect earlier than the date of its issuance.

Section 20 of Rule VI also provides:


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Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of thefollowing grounds:

Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;

Failure to pass through the agencys Selection/Promotion Board;

Violation of the existing collective agreement between management and employees relative to promotion; or

Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-citedgrounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were midnight

appointments. The CSC correctly ruled, however, that the constitutional prohibition on so-called midnightappointments, specifically those made within two (2) months immediately prior to the next presidential

elections, applies only to the President or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94, Feb.28, 2001, En Banc [Ynares-Santiago])

Is a government employee who has been ordered arrested and detained for a non-bailable offense and forwhich he was suspended for his inability to report for work until the termination of his case, still required tofile a formal application for leave of absence to ensure his reinstatement upon his acquittal and thus protecthis security of tenure? Concomitantly, will his prolonged absence from office for more than one (1) yearautomatically justify his being dropped from the rolls without prior notice despite his being allegedly placedunder suspension by his employer until the termination of his case, which finally resulted in his acquittal forlack of evidence?

Held: EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City Government ofMakati City. With her meager income she was the lone provider for her children. But her simple life was

disrupted abruptly when she was arrested without warrant and detained for more than three (3) years for a crimeshe did not commit. Throughout her ordeal she trusted the city government that the suspension imposed on her

was only until the final disposition of her case. As she drew near her vindication she never did expect the worstto come to her. On the third year of her detention the city government lifted her suspension, dropped her from

the rolls without prior notice and without her knowledge, much less gave her an opportunity to forthwith correctthe omission of an application for leave of absence belatedly laid on her.

Upon her acquittal for lack of evidence and her release from detention she was denied reinstatementto her position. She was forced to seek recourse in the Civil Service Commission which ordered her immediate

reinstatement with back wages from 19 October 1994, the date when she presented herself for reassumption ofduties but was turned back by the city government, up to the time of her actual reinstatement.

Plainly, the case of petitioner City Government of Makati City revolves around a rotunda of doubt, a

dilemma concerning the legal status and implications of its suspension of private respondent Eusebia R. Galzoteand the automatic leave of absence espoused by the Civil Service Commission. Against this concern is the

punctilious adherence to technicality, the requirement that private respondent should have filed an applicationfor leave of absence in proper form. The instant case is therefore a dispute between, at its worst, private

respondents substantial compliance with the standing rules, and the City Governments insistence that thelowly clerk should have still gone through the formalities of applying for leave despite her detention, of which

petitioner had actual notice, and the suspension order couched in simple language that she was beingsuspended until the final disposition of her criminal case.

The meaning of suspension until the final disposition of her case is that should her case be dismissedshe should be reinstated to her position with payment of back wages. She did not have to apply for leav

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