law on accountability of public officer - complete

5/23/2018 Law on Accountability of Public Officer - COMPLETE

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ART XI

SECTION. 1 Public office is a public trust. Public officers and employees must, at all times, beaccountable to the people, serve them with utmost responsibility, integrity, loyalty, and

efficiency; act with patriotism and justice, and lead modest lives.

Definitions

Public office

CREATION

ARTICLE IX

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service

Commission, the Commission on Elections, and the Commission on Audit.

R.A 7160local government code

PUBLIC OFFICER

Art 203

Art. 203. Who are public officers. For the purpose of applying the provisions of this and the

preceding titles of this book, any person who, by direct provision of the law, popular election or

appointment by competent authority, shall take part in the performance of public functions in the

Government of the Philippine Islands, of shall perform in said Government or in any of itsbranches public duties as an employee, agent or subordinate official, of any rank or class, shall

be deemed to be a public officer.

Republic Act No. 6713

AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS

FOR PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONOREDPRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES

AND REWARDS FOR EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS

AND TRANSACTIONS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF

AND FOR OTHER PURPOSES

Section 1. Title. - This Act shall be known as the "Code of Conduct and Ethical Standards for

Public Officials and Employees."

Section 2. Declaration of Policies. - It is the policy of the State to promote a high standard ofethics in public service. Public officials and employees shall at all times be accountable to the

Comment [l1]: CREATION

Comment [l2]: R.A 7160

Comment [l3]: 203 RPC

Comment [l4]: R.A 6713


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people and shall discharge their duties with utmost responsibility, integrity, competence, and

loyalty, act with patriotism and justice, lead modest lives, and uphold public interest overpersonal interest.

Section 3. Definition of Terms. - As used in this Act, the term:

(a) "Government" includes the National Government, the local governments, and all other

instrumentalities, agencies or branches of the Republic of the Philippines including government-

owned or controlled corporations, and their subsidiaries.

(b) "Public Officials" includes elective and appointive officials and employees, permanent or

temporary, whether in the career or non-career service, including military and police personnel,

whether or not they receive compensation, regardless of amount.

(c) "Gift" refers to a thing or a right to dispose of gratuitously, or any act or liberality, in favorof another who accepts it, and shall include a simulated sale or an ostensibly onerous disposition

thereof. It shall not include an unsolicited gift of nominal or insignificant value not given in

anticipation of, or in exchange for, a favor from a public official or employee.

(d) "Receiving any gift" includes the act of accepting directly or indirectly, a gift from a

person other than a member of his family or relative as defined in this Act, even on the occasionof a family celebration or national festivity like Christmas, if the value of the gift is neither

nominal nor insignificant, or the gift is given in anticipation of, or in exchange for, a favor.

(e) "Loan" covers both simple loan and commodatum as well as guarantees, financing

arrangements or accommodations intended to ensure its approval.

(f) "Substantial stockholder" means any person who owns, directly or indirectly, shares of

stock sufficient to elect a director of a corporation. This term shall also apply to the parties to avoting trust.


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(g) "Family of public officials or employees" means their spouses and unmarried children

under eighteen (18) years of age.

(h) "Person" includes natural and juridical persons unless the context indicates otherwise.

(i) "Conflict of interest" arises when a public official or employee is a member of a board, anofficer, or a substantial stockholder of a private corporation or owner or has a substantial interest

in a business, and the interest of such corporation or business, or his rights or duties therein, may

be opposed to or affected by the faithful performance of official duty.

(j) "Divestment" is the transfer of title or disposal of interest in property by voluntarily,

completely and actually depriving or dispossessing oneself of his right or title to it in favor of a

person or persons other than his spouse and relatives as defined in this Act.

(k) "Relatives" refers to any and all persons related to a public official or employee within thefourth civil degree of consanguinity or affinity, including bilas, inso and balae.

Section 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and

employee shall observe the following as standards of personal conduct in the discharge and

execution of official duties:

(a) Commitment to public interest. - Public officials and employees shall always uphold thepublic interest over and above personal interest. All government resources and powers of their

respective offices must be employed and used efficiently, effectively, honestly and economically,

particularly to avoid wastage in public funds and revenues.

(b) Professionalism. - Public officials and employees shall perform and discharge their

duties with the highest degree of excellence, professionalism, intelligence and skill. They shall

enter public service with utmost devotion and dedication to duty. They shall endeavor todiscourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.


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(c) Justness and sincerity. - Public officials and employees shall remain true to the people at

all times. They must act with justness and sincerity and shall not discriminate against anyone,especially the poor and the underprivileged. They shall at all times respect the rights of others,

and shall refrain from doing acts contrary to law, good morals, good customs, public policy,

public order, public safety and public interest. They shall not dispense or extend undue favors on

account of their office to their relatives whether by consanguinity or affinity except with respectto appointments of such relatives to positions considered strictly confidential or as members of

their personal staff whose terms are coterminous with theirs.

(d) Political neutrality. - Public officials and employees shall provide service to everyone

without unfair discrimination and regardless of party affiliation or preference.

(e) Responsiveness to the public. - Public officials and employees shall extend prompt,

courteous, and adequate service to the public. Unless otherwise provided by law or when

required by the public interest, public officials and employees shall provide information of their

policies and procedures in clear and understandable language, ensure openness of information,public consultations and hearings whenever appropriate, encourage suggestions, simplify and

systematize policy, rules and procedures, avoid red tape and develop an understanding and

appreciation of the socio-economic conditions prevailing in the country, especially in the

depressed rural and urban areas.

(f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal tothe Republic and to the Filipino people, promote the use of locally produced goods, resources

and technology and encourage appreciation and pride of country and people. They shall endeavor

to maintain and defend Philippine sovereignty against foreign intrusion.

(g) Commitment to democracy. - Public officials and employees shall commit themselves tothe democratic way of life and values, maintain the principle of public accountability, and

manifest by deeds the supremacy of civilian authority over the military. They shall at all times

uphold the Constitution and put loyalty to country above loyalty to persons or party.

(h) Simple living. - Public officials and employees and their families shall lead modest lives

appropriate to their positions and income. They shall not indulge in extravagant or ostentatiousdisplay of wealth in any form.


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(B) The Civil Service Commission shall adopt positive measures to promote (1) observance ofthese standards including the dissemination of information programs and workshops authorizing

merit increases beyond regular progression steps, to a limited number of employees recognizedby their office colleagues to be outstanding in their observance of ethical standards; and (2)

continuing research and experimentation on measures which provide positive motivation topublic officials and employees in raising the general level of observance of these standards.

Section 5. Duties of Public Officials and Employees. - In the performance of their duties, all

public officials and employees are under obligation to:

(a) Act promptly on letters and requests. - All public officials and employees shall, within

fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means ofcommunications sent by the public. The reply must contain the action taken on the request.

(b) Submit annual performance reports. - All heads or other responsible officers of offices and

agencies of the government and of government-owned or controlled corporations shall, withinforty-five (45) working days from the end of the year, render a performance report of the agency

or office or corporation concerned. Such report shall be open and available to the public within

regular office hours.

(c) Process documents and papers expeditiously. - All official papers and documents must beprocessed and completed within a reasonable time from the preparation thereof and must contain,

as far as practicable, not more than three (3) signatories therein. In the absence of duly

authorized signatories, the official next-in-rank or officer in charge shall sign for and in their

behalf.

(d) Act immediately on the public's personal transactions. - All public officials and employees

must attend to anyone who wants to avail himself of the services of their offices and must, at all

times, act promptly and expeditiously.


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(e) Make documents accessible to the public. - All public documents must be made accessible

to, and readily available for inspection by, the public within reasonable working hours.

Section 6. System of Incentives and Rewards. - A system of annual incentives and rewards is

hereby established in order to motivate and inspire public servants to uphold the higheststandards of ethics. For this purpose, a Committee on Awards to Outstanding Public Officials

and Employees is hereby created composed of the following: the Ombudsman and Chairman ofthe Civil Service Commission as Co-Chairmen, and the Chairman of the Commission on Audit,

and two government employees to be appointed by the President, as members.

It shall be the task of this Committee to conduct a periodic, continuing review of theperformance of public officials and employees, in all the branches and agencies of Governmentand establish a system of annual incentives and rewards to the end that due recognition is given

to public officials and employees of outstanding merit on the basis of the standards set forth in

this Act.

The conferment of awards shall take into account, among other things, the following: the years

of service and the quality and consistency of performance, the obscurity of the position, the levelof salary, the unique and exemplary quality of a certain achievement, and the risks or temptations

inherent in the work. Incentives and rewards to government officials and employees of the year

to be announced in public ceremonies honoring them may take the form of bonuses, citations,

directorships in government-owned or controlled corporations, local and foreign scholarshipgrants, paid vacations and the like. They shall likewise be automatically promoted to the next

higher position with the commensurate salary suitable to their qualifications. In case there is no

next higher position or it is not vacant, said position shall be included in the budget of the office

in the next General Appropriations Act. The Committee on Awards shall adopt its own rules togovern the conduct of its activities.

Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public

officials and employees now prescribed in the Constitution and existing laws, the following shall

constitute prohibited acts and transactions of any public official and employee and are herebydeclared to be unlawful:


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(a) Financial and material interest. - Public officials and employees shall not, directly or

indirectly, have any financial or material interest in any transaction requiring the approval oftheir office.

(b) Outside employment and other activities related thereto. - Public officials and employeesduring their incumbency shall not:

(1) Own, control, manage or accept employment as officer, employee, consultant, counsel,

broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed bytheir office unless expressly allowed by law;

(2) Engage in the private practice of their profession unless authorized by the Constitution

or law, provided, that such practice will not conflict or tend to conflict with their official

functions; or

(3) Recommend any person to any position in a private enterprise which has a regular or

pending official transaction with their office.

These prohibitions shall continue to apply for a period of one (1) year after resignation,

retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but

the professional concerned cannot practice his profession in connection with any matter beforethe office he used to be with, in which case the one-year prohibition shall likewise apply.

(c) Disclosure and/or misuse of confidential information. - Public officials and employees

shall not use or divulge, confidential or classified information officially known to them by reason

of their office and not made available to the public, either:

(1) To further their private interests, or give undue advantage to anyone; or

(2) To prejudice the public interest.


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(d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit oraccept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of

monetary value from any person in the course of their official duties or in connection with anyoperation being regulated by, or any transaction which may be affected by the functions of their

office.

As to gifts or grants from foreign governments, the Congress consents to:

(i) The acceptance and retention by a public official or employee of a gift of nominal value

tendered and received as a souvenir or mark of courtesy;

(ii) The acceptance by a public official or employee of a gift in the nature of a scholarshipor fellowship grant or medical treatment; or

(iii) The acceptance by a public official or employee of travel grants or expenses for traveltaking place entirely outside the Philippine (such as allowances, transportation, food, and lodging)

of more than nominal value if such acceptance is appropriate or consistent with the interests ofthe Philippines, and permitted by the head of office, branch or agency to which he belongs.

The Ombudsman shall prescribe such regulations as may be necessary to carry out the purpose

of this subsection, including pertinent reporting and disclosure requirements.

Nothing in this Act shall be construed to restrict or prohibit any educational, scientific or

cultural exchange programs subject to national security requirements.

Section 8. Statements and Disclosure. - Public officials and employees have an obligation to

accomplish and submit declarations under oath of, and the public has the right to know, theirassets, liabilities, net worth and financial and business interests including those of their spouses

and of unmarried children under eighteen (18) years of age living in their households.


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(A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials andemployees, except those who serve in an honorary capacity, laborers and casual or temporary

workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and aDisclosure of Business Interests and Financial Connections and those of their spouses and

unmarried children under eighteen (18) years of age living in their households.

The two documents shall contain information on the following:

(a) real property, its improvements, acquisition costs, assessed value and current fair market

value;

(b) personal property and acquisition cost;

(c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like;

(d) liabilities, and;

(e) all business interests and financial connections.

The documents must be filed:

(a) within thirty (30) days after assumption of office;

(b) on or before April 30, of every year thereafter; and

(c) within thirty (30) days after separation from the service.


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All public officials and employees required under this section to file the aforestated documents

shall also execute, within thirty (30) days from the date of their assumption of office, thenecessary authority in favor of the Ombudsman to obtain from all appropriate government

agencies, including the Bureau of Internal Revenue, such documents as may show their assets,

liabilities, net worth, and also their business interests and financial connections in previous years,

including, if possible, the year when they first assumed any office in the Government.

Husband and wife who are both public officials or employees may file the required statements

jointly or separately.

The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interestsand Financial Connections shall be filed by:

(1) Constitutional and national elective officials, with the national office of the Ombudsman;

(2) Senators and Congressmen, with the Secretaries of the Senate and the House of

Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges,

with the Court Administrator; and all national executive officials with the Office of the President.

(3) Regional and local officials and employees, with the Deputy Ombudsman in their

respective regions;

(4) Officers of the armed forces from the rank of colonel or naval captain, with the Office of

the President, and those below said ranks, with the Deputy Ombudsman in their respective

regions; and

(5) All other public officials and employees, defined in Republic Act No. 3019, as amended,

with the Civil Service Commission.


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(B) Identification and disclosure of relatives. - It shall be the duty of every public official or

employee to identify and disclose, to the best of his knowledge and information, his relatives inthe Government in the form, manner and frequency prescribed by the Civil Service Commission.

(C) Accessibility of documents. - (1) Any and all statements filed under this Act, shall be madeavailable for inspection at reasonable hours.

(2) Such statements shall be made available for copying or reproduction after ten (10) working

days from the time they are filed as required by law.

(3) Any person requesting a copy of a statement shall be required to pay a reasonable fee to

cover the cost of reproduction and mailing of such statement, as well as the cost of certification.

(4) Any statement filed under this Act shall be available to the public for a period of ten (10)

years after receipt of the statement. After such period, the statement may be destroyed unlessneeded in an ongoing investigation.

(D) Prohibited acts. - It shall be unlawful for any person to obtain or use any statement filed

under this Act for:

(a) any purpose contrary to morals or public policy; or

(b) any commercial purpose other than by news and communications media for dissemination

to the general public.

Section 9. Divestment. - A public official or employee shall avoid conflicts of interest at all times.

When a conflict of interest arises, he shall resign from his position in any private businessenterprise within thirty (30) days from his assumption of office and/or divest himself of his

shareholdings or interest within sixty (60) days from such assumption.


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The same rule shall apply where the public official or employee is a partner in a partnership.

The requirement of divestment shall not apply to those who serve the Government in anhonorary capacity nor to laborers and casual or temporary workers.

Section 10. Review and Compliance Procedure. - (a) The designated Committees of both Housesof the Congress shall establish procedures for the review of statements to determine whether said

statements which have been submitted on time, are complete, and are in proper form. In the

event a determination is made that a statement is not so filed, the appropriate Committee shall soinform the reporting individual and direct him to take the necessary corrective action.

(b) In order to carry out their responsibilities under this Act, the designated Committees of

both Houses of Congress shall have the power within their respective jurisdictions, to render any

opinion interpreting this Act, in writing, to persons covered by this Act, subject in each instanceto the approval by affirmative vote of the majority of the particular House concerned.

The individual to whom an opinion is rendered, and any other individual involved in a similar

factual situation, and who, after issuance of the opinion acts in good faith in accordance with it

shall not be subject to any sanction provided in this Act.

(c) The heads of other offices shall perform the duties stated in subsections (a) and (b) hereofinsofar as their respective offices are concerned, subject to the approval of the Secretary of

Justice, in the case of the Executive Department and the Chief Justice of the Supreme Court, in

the case of the Judicial Department.

Section 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holdsoffice or employment in a casual, temporary, holdover, permanent or regular capacity,

committing any violation of this Act shall be punished with a fine not exceeding the equivalent

of six (6) months' salary or suspension not exceeding one (1) year, or removal depending on the

gravity of the offense after due notice and hearing by the appropriate body or agency. If theviolation is punishable by a heavier penalty under another law, he shall be prosecuted under the

latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment


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not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and,

in the discretion of the court of competent jurisdiction, disqualification to hold public office.

(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause

for removal or dismissal of a public official or employee, even if no criminal prosecution isinstituted against him.

(c) Private individuals who participate in conspiracy as co-principals, accomplices or

accessories, with public officials or employees, in violation of this Act, shall be subject to thesame penal liabilities as the public officials or employees and shall be tried jointly with them.

(d) The official or employee concerned may bring an action against any person who obtains or

uses a report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such

action is brought may assess against such person a penalty in any amount not to exceed twenty-five thousand pesos (P25,000). If another sanction hereunder or under any other law is heavier,

the latter shall apply.

Section 12. Promulgation of Rules and Regulations, Administration and Enforcement of this Act.

- The Civil Service Commission shall have the primary responsibility for the administration andenforcement of this Act. It shall transmit all cases for prosecution arising from violations of this

Act to the proper authorities for appropriate action: Provided, however, That it may institute suchadministrative actions and disciplinary measures as may be warranted in accordance with law.

Nothing in this provision shall be construed as a deprivation of the right of each House ofCongress to discipline its Members for disorderly behavior.

The Civil Service Commission is hereby authorized to promulgate rules and regulations

necessary to carry out the provisions of this Act, including guidelines for individuals who render

free voluntary service to the Government. The Ombudsman shall likewise take steps to protect

citizens who denounce acts or omissions of public officials and employees which are in violationof this Act.


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Section 13. Provisions for More Stringent Standards. - Nothing in this Act shall be construed to

derogate from any law, or any regulation prescribed by any body or agency, which provides formore stringent standards for its official and employees.

Section 14. Appropriations. - The sum necessary for the effective implementation of this Actshall be taken from the appropriations of the Civil Service Commission. Thereafter, such sum as

may be needed for its continued implementation shall be included in the annual GeneralAppropriations Act.

Section 15. Separability Clause. - If any provision of this Act or the application of such provision

to any person or circumstance is declared invalid, the remainder of the Act or the application ofsuch provision to other persons or circumstances shall not be affected by such declaration.

Section 16. Repealing Clause. - All laws, decrees and orders or parts thereof inconsistentherewith, are deemed repealed or modified accordingly, unless the same provide for a heavier

penalty.

Section 17. Effectivity. - This Act shall take effect after thirty (30) days following the

completion of its publication in the Official Gazette or in two (2) national newspapers of generalcirculation.

DEFACTO OFFICERS

TORRES VS RIBO

G.R. No. L-2051 May 21, 1948BERNARDO TORRESvs.MAMERTO S. RIBO and ALEJANDRO BALDERIAN,

Facts:Bernardo Torres, Mamerto Ribo and Alejandro Balderian were the gubernatorial candidates ofLeyte in the 1947 election. Mamerto Ribo was then the incumbent governor while the two othercandidates were members of the provincial board. Under Sec. 158 of the Revised Election Code,

Comment [l5]: 1stcase


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they were supposed so sit as members of the Provincial Board of Canvassers but since they were

candidates, they were thus disqualified to sit therein. Pursuant to Sec. 158 of the same code, theCOMELEC, thru a telegram dated November 20 th, sent to the provincial treasurer who receivedthe telegram on the 21st, appointed the division schools superintendent, the district engineer aswell as the district health officer to replace the disqualified PBC members. It was indicated thatthey could assume the posts as soon as they receive their appointment. Unfortunately, thedivision schools superintendent and the district engineer were not able to receive theappointment as they were in the other part of the province until the 24th.

Meanwhile, on November 22, the provincial treasurer, the provincial fiscal, the acting districthealth officer, the chief clerk of the division superintendent of schools as well as the assistantcivil engineer in the district engineers office canvassed the votes for the provincial governor andthe other officials and then proclaimed Ribo as the duly elected governor. On the 24 ththe PBCconvened again but this time, the district engineer and the division schools superintendentattended after canvassing the votes, they declared Ribo as the winning candidate. The issue of

whether the chief clerk of the division superintendent of schools and the assistant civil engineerin the district engineers office were lawful members of the PBC. The first trial judge whohandled the case held they were not but the second judge to which the case was transferredanswered in the affirmative saying that it would be absurd it they would not be considered as

being authorized by their superiors considering their respective positions.

1stIssue: WON the two may be considered as lawful members of the PBC.

Held: No. There is no evidence to show that they were authorized by their respective superiorsto represent them in the canvassing of votes. And even if they were indeed authorized, it wouldnot make them lawful members of the PBC. The law expressly mandates who are the qualifiedmembers of the PBC and it also provided those who can be substitute members in case ofdisqualification. The enumeration is exclusive and no other person can be appointed as such. The

appointment of a substitute member is personal and restricted and his powers must be performeddirectly and in person by the appointee. An officer to whom discretion is entrusted can notdelegate it to another. The powers of the board of canvassers are not purely ministerial, as thecourt below erroneously holds. The board exercise quasi-judicial functions, such as the functionand duty to determine whether the papers transmitted to them are genuine election returns signed

by the proper officers.

2ndIssue:Whether the two could at least be deemed as de facto officers

Held: No. An officer de facto is one who has the reputation of being the officer he assumes tobe, and yet is not a good officer in point of law. He must have acted as an officer for such alength of time, under color of title and under such circumstances of reputation or acquiescence

by the public and public authorities, as to afford a presumption of appointment or election, andinduce people, without injury, and relying on the supposition that he is the officer he assumes to

be, to submit to or invoke his action. Tizon and Pascual did not possess any of these conditions.They acted without any appointment, commission or any color of title to the office. There was noacquiescence, public or private, in their discharge of the position. In fact the very person most


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greatly affected by their assumption of the office, Bernardo Torres, was not notified and was not

unaware of it.


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QUALIFICATIONS OF PUBLIC OFFICE

CITIZENSHIP REQUIREMENT

G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner,

vs.

COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON

CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE,

respondents.

Facts:Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on 22 January 1988,

and assumed office in due time. On 27 October 1988, the league of Municipalities, SorsogonChapter represented by its President, Salvador Estuye, who was also suing in his personal

capacity, filed with the Comelec a petition for the annulment of Frivaldos election andproclamation on the ground that he was not a Filipino citizen, having been naturalized in the

United States on 20 January 1983. Frivaldo admitted that he was naturalized in the United States

as alleged but pleaded the special and affirmative defenses that he had sought American

citizenship only to protect himself against President Marcos. His naturalization, he said, wasmerely forced upon himself as a means of survival against the unrelenting persecution by the

Martial Law Dictators agents abroad. He also argued that the challenge to his title should bedismissed, being in reality a quo warranto petition that should have been filed within 10 days

from his proclamation, in accordance with Section 253 of the Omhibus Election Code.

Issue:Whether Juan G. Frivaldo was a citizen of the Philippines at the time of his election on 18

January 1988, as provincial governor of Sorsogon.

Held:The Commission on Elections has the primary jurisdiction over the question as the sole judge of

all contests relating to the election, returns and qualifications of the members of the Congressand elective provincial and city officials. However, the decision on Frivaldos citizenship has

already been made by the COMELEC through its counsel, the Solicitor General, who

categorically claims that Frivaldo is a foreigner. The Solicitors stance is assumed to have bben

taken by him after consultation with COMELEC and with its approval. It therefore represents the

Comment [l6]: 2nd

case FRIVALD


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decision of the COMELEC itself that the Supreme Court may review. In the certificate of

candidacy filed on 19 November 1987, Frivaldo described himself as a natural-born citizen ofthe Philippines, omitting mention of any subsequent loss of such status. The evidence shows,

however, that he was naturalized as a citizen of the United States in 1983 per the certification

from the United States District Court, Northern District of California, as duly authenticated by

Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California,U.S.A. There were many other Filipinos in the United States similarly situated as Frivaldo, and

some of them subject to greater risk than he, who did not find it necessary nor do they claim

to have been coerced to abandon their cherished status as Filipinos. Still, if he really wanted

to disavow his American citizenship and reacquire Philippine citizenship, Frivaldo should havedone so in accordance with the laws of our country. Under CA No. 63 as amended by CA No.

473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by

naturalization, or by repatriation. He failed to take such categorical acts. Rhe anomaly of a

person sitting as provincial governor in this country while owing exclusive allegiance to anothercountry cannot be permitted. The fact that he was elected by the people of Sorsogon does not

excuse this patent violation of the salutary rule limiting public office and employment only to the

citizens of this country. The will of the people as expressed through the ballot cannot cure thevice of ineligibilityQualifications for public office are continuing requirements and must be

possessed not only at the time of appointment or election or assumption of office but during the

officers entire tenure. Once any of the required qualifications is lost, his title may be seasonably

challenged. Frivaldo is disqualified from serving as governor of Sorsogon.G.R. No. 86564August 1, 1989

RAMON L. LABO, JR., petitioner,

vs.

THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL,

respondents

In 1988, Ramon Labo, Jr. was elected as mayor of Baguio City. His rival, Luis Lardizabal filed apetition for quo warranto against Labo as Lardizabal asserts that Labo is an Australian citizenhence disqualified; that he was naturalized as an Australian after he married an Australian. Laboavers that his marriage with an Australian did not make him an Australian; that at best he hasdual citizenship, Australian and Filipino; that even if he indeed became an Australian when hemarried an Australian citizen, such citizenship was lost when his marriage with the Australianwas later declared void for being bigamous. Labo further asserts that even if hes considered asan Australian, his lack of citizenship is just a mere technicality which should not frustrate thewill of the electorate of Baguio who voted for him by a vast majority.ISSUES:

Comment [l7]: 3rd

case - LABO V


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1. Whether or not Labo can retain his public office.

2. Whether or not Lardizabal, who obtained the second highest vote in the mayoralty race, canreplace Labo in the event Labo is disqualified.HELD: 1. No. Labo did not question the authenticity of evidence presented against him. He wasnaturalized as an Australian in 1976. It was not his marriage to an Australian that made him anAustralian. It was his act of subsequently swearing by taking an oath of allegiance to thegovernment of Australia. He did not dispute that he needed an Australian passport to return tothe Philippines in 1980; and that he was listed as an immigrant here. It cannot be said also that heis a dual citizen. Dual allegiance of citizens is inimical to the national interest and shall be dealtwith by law. He lost his Filipino citizenship when he swore allegiance to Australia. He cannotalso claim that when he lost his Australian citizenship, he became solely a Filipino. To restorehis Filipino citizenship, he must be naturalized or repatriated or be declared as a Filipino throughan act of Congressnone of this happened.Labo, being a foreigner, cannot serve public office. His claim that his lack of citizenship shouldnot overcome the will of the electorate is not tenable. The people of Baguio could not have, even

unanimously, changed the requirements of the Local Government Code and the Constitutionsimply by electing a foreigner (curiously, would Baguio have voted for Labo had they known heis Australian). The electorate had no power to permit a foreigner owing his total allegiance to theQueen of Australia, or at least a stateless individual owing no allegiance to the Republic of thePhilippines, to preside over them as mayor of their city. Only citizens of the Philippines have that

privilege over their countrymen.2. Lardizabal on the other hand cannot assert, through the quo warranto proceeding, that heshould be declared the mayor by reason of Labos disqualification because Lardizabal obtainedthe second highest number of vote. It would be extremely repugnant to the basic concept of theconstitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or

plurality of votes is proclaimed a winner and imposed as the representative of a constituency, themajority of which have positively declared through their ballots that they do not choose him.Sound policy dictates that public elective offices are filled by those who have received the

highest number of votes cast in the election for that office, and it is a fundamental idea in allrepublican forms of government that no one can be declared elected and no measure can bedeclared carried unless he or it receives a majority or plurality of the legal votes cast in theelection.


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KILOSBAYAN VS EXECUTIVE SECRETARY

Only natural-born Filipino citizens may be appointed as justice of the Supreme Court

Decision of administrative body (Bureau of Immigration) declaring one a natural-born citizen isnot binding upon the courts when there are circumstances that entail factual assertions that need

to be threshed out in proper judicial proceedings

FACTS:

This case arose when respondent Gregory S. Ong was appointed by Executive Secretary, in

representation of the Office of the President, as Associate Justice of the Supreme Court.Petitioners contended that respondent Ong is a Chinese citizen, born on May 25, 1953 to Chinese

parents. They further added that even if it were granted that eleven years afterrespondent Ongsbirth, his father was finally granted Filipino citizenship by naturalization, that, by itself, would

not makerespondent Ong a natural-born citizen. For his part, respondent Ong contended that he

is a natural-born citizen and presented a certification from the Bureau of Immigration and the

DOJ declaring him to be such.

ISSUE:

Whether or not respondent Ong is a natural-born Filipino citizen

RULING:

xxx respondent Ong is a naturalized Filipino citizen. The alleged subsequent recognition of hisnatural-born status by the Bureau of Immigration and the DOJ cannot amend the final decision of

the trial court stating that respondent Ong and his mother were naturalized along with his father.

The series of events and long string of alleged changes in the nationalities of respondent Ong'sancestors, by various births, marriages and deaths, all entail factual assertions that need to be

threshed out in proper judicial proceedings so as to correct the existing records on his birth

and citizenship. The chain of evidence would have to show that Dy Guiok

Santos, respondent Ong's mother, was a Filipino citizen, contrary to what still appears in therecords of this Court.Respondent Ong has the burden of proving in court his alleged ancestral

tree as well as his citizenship under the time-line of three Constitutions. Until this is

Comment [l8]: 4th

CASE KILOSBA

SECRETARY 2007


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done, respondent Ong cannot accept an appointment to this Court as that would be a violation of

the Constitution. For this reason, he can be prevented by injunction from doing so.

REQUIRED ACTS TO BE PERFORMED

-effect or refusal to take the oath of office (sec. 11, BP 881)

OMNIBUS ELECTION CODE OF THE PHILIPPINES

Section 11 Failure to assume office. - The office of any official elected who fails or refuses totake his oath of office within six months from his proclamation shall be considered vacant,

unless said failure is for a cause or causes beyond his control

CORPUZ VS CA

FIRST DIVISION

[G.R. No. 123989. January 26, 1998]

ATTY. DAVID B. CORPUZ, petitioner, vs. COURT OF APPEALS, and MOVIE AND

TELEVISION REVIEW ANDCLASSIFICATION BOARD, respondents.

D E C I S I O N

DAVIDE, JR., J.:

Petitioner Atty. David Corpuz (hereafter CORPUZ) asks us to set aside the 13 October 1995decision of the Court of Appeals in CA-G.R. SP-No. 37694[1] which reversed Resolution No.

93-5964 of the Civil Service Commission (CSC),[2] the latter declaring that petitionersseparation from the service as Attorney V in the Movie Television Review Board (MTRCB) was

not in order and directed that he be automatically restored to his position.

The pleadings of the parties, the decision of the Court of Appeals and the Resolution of the CSCdisclose the following facts:

Comment [l9]: BP 881

Comment [l10]: 5th

case - CORP


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On 18 July 1986, CORPUZ was appointed as the MTRCBs legal Counsel -- Prosecutor andInvestigation Services (Supervising Legal Staff Officer).[3] The appointment was approved by

Asst. Regional Director Benita Santos of the CSC-National Capital Region. Subsequently,CORPUZ position was designated Attorney V under the Salary Standardization Law.

As MTRCB Legal Counsel, CORPUZ duties included attendance in Board meetings pursuant

to then Chairman Moratos memorandum of 11 September 1987.[4]

Sometime in August 1991, the MTRCB passed MTRCB Resolution No. 8-1-91[5] entitled An

Act To Declare The Appointments Of The Administrative And Subordinate Employees Of ThisBoard As Null And Void. This undated resolution noted that the past and present Chairmen of

the MTRCB had failed to submit for approval the appointments of administrative andsubordinate employees to the MTRCB before forwarding them to the CSC, in violation of

Section 5 of P.D. No. 876-A, and later, P.D. No. 1986.[6] It thus declared:

FOR ALL OF THE FOREGOING, this Board, in Session Assembled, hereby declare[s] thatALL the appointments of the present administrative and subordinate employees of this Board

suffers [sic] from illegality and therefore [are] considered invalid and of no value and effect ab

initio.

IT IS THEREFORE RESOLVED, AS IT IS HEREBY RESOLVED BY THIS BOARD, that theChairman recommend to this Board, the appointment of all or some of the present administrative

and subordinate employees of this Board, or new ones, at his initiative, discretion and preference,

including the category of the position for which the appointees [are] recommended, within a

period of ONE MONTH from the approval of this Resolution;

IT IS FURTHER RESOLVED, that in the interregnum, and in order not to disrupt the workings

and functions of this Board while this body is awaiting for [sic] the recommendation of the

appointments of the old and or new appointees, the present administrative and subordinate

employees shall hold on [to] their position[s] in an [sic] holdover capacity.


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As certified by MTRCB Secretary Vicente G. Sales,[7] Resolution No. 8-1-91 was filed in his

office on 1 August 1991, while Resolution No. 10-2-91, a mere reiteration of Resolution No. 8-1-91, was approved by the MTRCB en banc on 9 October 1991. No copy of Resolution No. 10-

2-91, however, was found in the records.

CORPUZ was unaware of the promulgation of Resolution No. 8-1-91 as he was then on leave.

The Resolution was likewise kept secret and it was only on 12 March 1993 that anannouncement[8] of its contents was posted by an Ad Hoc Committee on the MTRCB bulletin

board. This announcement invited the submission of any information concerning the

appointments involved therein to the Committee. It appears, however, that nothing was

immediately done to implement Resolution No. 8-1-91.

On 14 July 1992, Henrietta S. Mendez was appointed MTRCB Chairman. Thereafter, new

members of the Board were likewise appointed with Mendez assuming office in August 1992.

At the MTRCB meeting of 19 January 1993, Mendez was informed about Resolution No. 8-1-91.

An Ad Hoc Committee composed of MTRCB members was then constituted to look into the

appointments extended by former Chairman Morato, as well as the qualifications of theappointees. The Committee then posted on the MTRCB bulletin board the 12 March 1993

announcement mentioned above.

Thereafter, the Committee resolved to recommend to the MTRCB the approval of the

appointments, except that of CORPUZ and seven others.

In a Memorandum[9] dated 28 June 1993, Mendez informed CORPUZ that at the MTRCBregular meeting of 25 June 1993, his appointment was disapproved effective 30 June 1993.

None of the parties attached to their pleadings a copy of the MTRCB Resolution disapproving

the appointment.

On 27 July 1993, CORPUZ and one Larry Rigor filed a complaint with the CSC requesting aformal investigation and hearing. In her comment to the complaint, Mendez stated that she

discovered that the appointments extended by Morato were not submitted to the MTRCB for


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approval pursuant to Section 5(c) of P.D. No. 1986; hence to cure the defect, she submitted the

appointments to the MTRCB.

On 31 August 1993, the CSC promulgated Resolution No. 93-3509 granting the MTRCB

authority to fill up positions vacated in the agency due to appointments which were notsubmitted to the MTRCB for approval.[10]

However, in Resolution No. 93-5964[11] dated 23 December 1993, the CSC ruled in favor of

CORPUZ, as follows:

It must be appreciated that the appointment of Atty. Corpuz was approved by the Commission

because it was signed by Mr. Manuel Morato, then Chairman of [the] MTRCB and the duly

authorized signatory of MTRCB appointments. All the appointments signed by Mr. Morato in

his capacity as MTRCB Chairman are presumed to have been made after complying with all thelegal requirements including the Board approval, whether express or implied.

The appointment of Atty. Corpuz, if defective, could have been the subject of a direct action for

revocation or recall which may be brought to the Commission within a reasonable period of time

after its approval Since no such action was filed with the Commission, we can safely state thatCorpuz had already acquired security of tenure in the said position. Hence, the Commission can

not allow the current Boards disapproval of the said appointment to produce any effect. Atty.Corpuz can no longer be separated from the service except for cause and after observing the

requirements of due process.

WHEREFORE, foregoing premises considered, the Commission hereby resolves to rule that theseparation of Mr. David Corpuz from the service is not in order. Accordingly, he is

automatically restored to his position of Atty. V with payment of back salaries.

The MTRCBs motion for reconsideration was denied by the CSC in Resolution No. 94-2551[12]

dated 20 June 1994.


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In the meantime, specifically on 22 August 1994, CORPUZ became a permanent employee of

the Ombudsman.[13]

The MTRCB filed with us a special civil action for certiorari which we referred to the Court of

Appeals in view of Republic Act No. 7902.[14] The Court of Appeals then docketed the case asCA-G.R. SP No. 37694.

In its decision, the Court of Appeals declared null and void Resolution No. 93-5964 of the CSC,

ruling that since the appointment of CORPUZ was not approved by the MTRCB, theappointment was invalid and he could not invoke security of tenure. In support of its ruling, the

Court of Appeals held:

Presidential Decree No. 1986, the law creating the Movie and Television Review and

Classification Board, specifically provides as follows:

Section 16. Organization Patterns; Personnel. -- The Board shall determine its organizational

structure and staffing pattern. It shall have the power to suspend or dismiss for cause any

employee and/or approve or disapprove the appointment, transfer or detail of employees. It shall

appoint the Secretary of the Board who shall be the official custodian of the records of themeetings of the Board and who shall perform such other duties and functions as directed by the

Board. (Underscoring supplied)

The record shows that the appointment of respondent Atty. David Corpuz was not approved by

the Board, as mandated by Presidential Decree No. 1986, Section 16.

The Supreme Court, in a similar case has reiterated the importance of complying with legalrequirements for a valid appointment. In Tomali vs. Civil Service Commission (238 SCRA 572),

it held:

Compliance with the legal requirements for an appointment to a civil service position is

essential in order to make it fully effective (Favis vs. Rupisan, 17 SCRA 190, cited in Mitra vs.

Subido, 21 SCRA 127). Without the favorable certification or approval of the Commission, in


26/411

cases when such an approval is required, no title to the office can yet be deemed to be permanent;

vested in favor of the appointee, and the appointment can still be recalled or withdrawn by theappointing authority (Grospe vs. Secretary of Public Works and Communication, 105 Phil. 129;

Villanueva vs. Balallo, 9 SCRA 407; Suarez vs. Commission on Elections, 20 SCRA 797). Until

an appointment has become a completed act, it would likewise be precipitate to invoke the rule

of security of tenure (See Aquino vs. Civil Service Commission, 208 SCRA 240; Mitra vs.Subido, 21 SCRA 797).

It appearing that respondent Atty. Corpuz appointment was not approved by the Board, the same

cannot be considered as [a] valid appointment. As such, he cannot invoke security of tenure,

even if he has rendered service for a number of years.

Neither would the silence or the failure of the Board to recall the private respondents

appointment constitute as a [sic] consent or confirmation. In the aforecited case, the Supreme

Court restated the existing jurisprudence on the matter, thus:

The tolerance, acquiescence or mistake of the proper officials, resulting in the non -observance

of the pertinent rules on the matter does not render the legal requirement, on the necessity of theapproval of the Commissioner on Civil Service of appointments, ineffective and unenforceable.

The employee, whose appointment was not approved, may only be considered as a de facto

officer. (Tomali vs. Civil Service Commission, supra citing Fav is vs. Rupisan, 17 SCRA 190,

191)

Thus, We find merit in petitioners contention that respondent Atty. David Corpuz did not

acquire a vested right nor does he presently enjoy a [sic] security of tenure to the subject position

in the MTRCB for failure to comply with the legal requirements needed for a valid appointment.

Hence, he cannot be reinstated. Not being a permanent employee of the Movie and TelevisionReview and Classification Board, the tenure of respondent Atty. Corpuz ceased when he was not

properly appointed under present law.

His motion for reconsideration having been denied in the Resolution[15] of 13 February 1996,CORPUZ filed the instant petition under Rule 45 of the Rules of Court and asked us to reverse

the challenged decision of the Court of Appeals on the sole ground that:


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THE COURT OF APPEALS ERRED IN RULING THAT THE APPOINTMENT OF

PETITIONER ATTY. DAVID B. CORPUZ DID NOT HAVE THE APPROVAL OF THEMTRCB BOARD WHICH IF NOT CORRECTED, IS TANTAMOUNT TO A VIOLATION

OF HIS CONSTITUTIONAL RIGHTS TO SECURITY OF TENURE.

In his Memorandum, however, CORPUZ explicitly declared that he is no longer seeking

reinstatement with respondent MTRCB but for the continuity of his government service from thetime he was illegally dismissed on 30 June 1993 up to the time he was permanently employed

with the Office of the Ombudsman on 22 August 1994 plus back salaries and other benefits due

him if not for the illegal dismissal.[16]

Pursuant to Section 2 of P.D. No. 1986, the MTRCB is composed of a Chairman, a Vice-Chairman and thirty (30) members, all appointed by the President of the Philippines. Section 5

thereof enumerates the following functions, powers and duties of the Chairman as the Chief

Executive Officer of the MTRCB, to wit:

(a) Execute, implement and enforce the decisions, orders, awards, rules and regulations issued

by the BOARD;

(b) Direct and supervise the operations and the internal affairs of the BOARD;

(c) Establish the internal organization and administrative procedures of the BOARD, and

recommend to the BOARD the appointment of the necessary administrative and subordinate

personnel; and

(d) Exercise such other powers and functions and perform such duties as are not specificallylodged in the BOARD.

On the other hand, Section 16 thereof, quoted in the challenged decision of the Court of Appeals,vests upon the Board itself the power to, inter alia, approve or disapprove the appointments of its

personnel.


28/411

It is thus clear that there are two stages in the process of appointing MTRCB personnel, otherthan its Secretary, namely: (a) recommendation by the Chairman which is accomplished by the

signing of the appointment paper, which is among his powers under Section 5(d) above; and (b)approval or disapproval by the MTRCB of the appointment. As to the Secretary, it is the

MTRCB itself that is empowered to appoint said official pursuant to Section 16.

It is long settled in the law of public offices and officers that where the power of appointment is

absolute, and the appointee has been determined upon, no further consent or approval is

necessary, and the formal evidence of the appointment, the commission, may issue at once.Where, however, the assent or confirmation of some other officer or body is required, the

commission can issue or the appointment may be complete only when such assent orconfirmation is obtained. In either case, the appointment becomes complete when the last act

required of the appointing power is performed.[17] Until the process is completed, the appointeecan claim no vested right in the office nor invoke security of tenure. Hence, in the case of

CORPUZ, since the last act required for the completion of his appointment, viz., approval by the

MTRCB itself, was not obtained, as a matter of fact, the MTRCB ultimately disapproved it, his

appointment ceased to have effect, if at all, and his services were properly terminated. ThisCourt so declared in Favis v. Rupisan[18] where the appointment involved was not approved by

the Civil Service Commission pursuant to Section 16(h) of R.A. No. 2260 and Section 2(a) of

Rule VI of the Civil Service Rules implementing said law; Taboy v. Court of Appeals[19] andProvincial Board of Cebu v. Presiding Judge of Cebu Court of First Instance[20] where the

appointments of subject employees were disapproved by the Provincial Boards pursuant to the

powers granted them; in Carillo v. Court of Appeals[21] where the required consent of themunicipal council in the appointment of the chief of police was not obtained; and in Tomali v.Civil Service Commission,[22] which the Court of Appeals relied upon, where the required

submission to and approval by the Civil Service Commission were not made as required by

Section 9(h) of P.D. No. 807 and Section 11, Rule V of the Omnibus Rules Implementing Book

V of Executive Order No. 292, otherwise known as the Administrative Code of 1987. In thelatter, this Court held that compliance with the legal requirements for an appointment to a civil

service position is essential to make it fully effective. That the employee involved had, in fact,assumed office and performed the functions and duties thereof is of no moment, for it matters not

that the appointee had served for several years. Those years of service cannot substitute for thewant of consent of another body required by law to complete the appointment. The tolerance,

acquiescence or mistake of the proper officials resulting in non-observance of the requirements

of law or rules to complete the appointment does not render the requirements ineffective andunenforceable.[23]


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A public official or employee who assumed office under an incomplete appointment is merely a

de facto officer for the duration of his occupancy of the office for the reason that he assumedoffice under color of a known appointment which is void by reason of some defect or irregularity

in its exercise.[24] Undeniably, under the facts here, CORPUZ was such a de facto officer.

WHEREFORE, the instant petition is DENIED and the assailed decision of 13 October 1995 of

the Court of Appeals in CA-G.R. SP-No.37694 is AFFIRMED.

Costs against petitioner.

NO PROPERTY QUALIFICATIONS TO BE IMPOSED

G.R. No. L-24761 September 7, 1965

LEON G. MAQUERA, petitioner,

vs.

JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective

capacities as Chairman and Members of the Commission on Elections, and the COMMISSION

ON ELECTIONS, respondents.

MAQUERRA VS BORRA 15 SCRA 7 (1965)

In this petition, Maquera seek that the RA 4421 requiring all candidates for national, provincialcity and municipal offices to post a surety bond equivalent to salary or emoluments to which heis a candidate.

The Court granted the petition as it is inconsistent with the nature and essence of the Republicansystem ordained in our Constitution and the principle of social justice underlying the same forsaid political system is premised upon the tent that sovereignty resides in the people and allgovernment authority emanates from them and this in turn implies necessarily that the right tovote and to be voted for shall not be dependent upon the wealth of the individualconcerned,whereassocial

justice presupposes equal opportunity for all, rich and poor alike and that accordingly no personshall by reason of poverty, be denied the chance to be elected to public office.

Comment [l11]: No property Qu

be imposed

Comment [l12]: Maquera vs bo


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canonizado

FACTS: Petitioners were incumbent commissioners of the National Police Commission whenRepublic Act. No. 8851, otherwise known as the PNP Reform and Reorganization Act of 1998,took effect. Section 8 of Republic Act. No. 8851 provided that the terms of office of theincumbent commissioners were deemed expired. Petitioners claimed that this violated theirsecurity of tenure.

HELD: Petitioners are members of the civil service. Republic Act No. 8551 did not expresslyabolish the positions of petitioners. Under RA No. 6975, the National Police Commission wasunder the Department of Interior and Local Government, while under Republic Act. No. 8551 itis made an agency attached to the Department of Interior and Local Government. Theorganizational structure and the composition of the National Police Commission remainessentially the same except for the addition of the Chief of PNP as ex-officio member. The

powers and duties of the National Police Commission remain basically unchanged. No bona fide

reorganization of the NPC having been mandated by Congress and insofar as RA 8851 declaresthe office of the petitioner as expired resulting in their separation from office, it is tantamount toremoving civil service employees from office without legal cause therefore, it must be struckdown for being constitutionally infirm.

Section 69. Nuisance candidates. - The Commission may motu proprio or upon a verifiedpetition of an interested party, refuse to give due course to or cancel a certificate of candidacy if

it is shown that said certificate has been filed to put the election process in mockery or disrepute

or to cause confusion among the voters by the similarity of the names of the registered

candidates or by other circumstances or acts which clearly demonstrate that the candidate has nobona fide intention to run for the office for which the certificate of candidacy has been filed and

thus prevent a faithful determination of the true will of the electorate.

AUTHORITY TO PROVIDE QUALIFICATIONS

FLORES VS DRILON

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A.JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner,

vs.

HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON,

respondents.

Comment [l13]:

Comment [l14]: BP 881 section

Comment [l15]: Authority to pr

qualifications

Comment [l16]: FLORES VS DRI


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Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto forpetitioners.

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "BasesConversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon

of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay

Metropolitan Authority (SBMA), is challenged in this original petition with prayer for

prohibition, preliminary injunction and temporary restraining order "to prevent useless andunnecessary expenditures of public funds by way of salaries and other operational expenses

attached to the office . . . ." 2 Paragraph (d) reads

(d) Chairman administrator The President shall appoint a professional manager as

administrator of the Subic Authority with a compensation to be determined by the Board subjectto the approval of the Secretary of Budget, who shall be the ex oficio chairman of the Board and

who shall serve as the chief executive officer of the Subic Authority: Provided, however, Thatfor the first year of its operations from the effectivity of this Act, the mayor of the City of

Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority(emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales,

and officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the

Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italicsinfringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B,

of the Constitution, which states that "[n]o elective official shall be eligible for appointment or

designation in any capacity to any public officer or position during his tenure," 3 because the

City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b)Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all

other officers of the Government whose appointments are not otherwise provided for by law, and

those whom he may be authorized by law to appoint", 4 since it was Congress through the


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questioned proviso and not the President who appointed the Mayor to the subject posts; 5 and, (c)

Sec. 261, par. (g), of the Omnibus Election Code, which says:

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g)

Appointment of new employees, creation of new position, promotion, or giving salary increases.During the period of forty-five days before a regular election and thirty days before a special

election, (1) any head, official or appointing officer of a government office, agency orinstrumentality, whether national or local, including government-owned or controlled

corporations, who appoints or hires any new employee, whether provisional, temporary or casual,

or creates and fills any new position, except upon prior authority of the Commission. The

Commission shall not grant the authority sought unless it is satisfied that the position to be filledis essential to the proper functioning of the office or agency concerned, and that the position

shall not be filled in a manner that may influence the election. As an exception to the foregoing

provisions, a new employee may be appointed in case of urgent need: Provided, however, That

notice of the appointment shall be given to the Commission within three days from the date ofthe appointment. Any appointment or hiring in violation of this provision shall be null and void.

(2) Any government official who promotes, or gives any increase of salary or remuneration or

privilege to any government official or employee, including those in government-owned or

controlled corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by

respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to

the 11 May 1992 Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states,

"Provided, however, That for the first year of its operations from the effectivity of this Act, themayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of

the Subic Authority," violates the constitutional proscription against appointment or designation

of elective officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any publicoffice or position during his tenure.


33/411

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 corporations or theirsubsidiaries.

The section expresses the policy against the concentration of several public positions in one

person, so that a public officer or employee may serve full-time with dedication and thus be

efficient in the delivery of public services. It is an affirmation that a public office is a full-time

job. Hence, a public officer or employee, like the head of an executive department described inCivil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the

Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6". . . . should be allowed to attend to his duties and responsibilities without the distraction of

other governmental duties or employment. He should be precluded from dissipating his efforts,attention and energy among too many positions of responsibility, which may result in

haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a

situation where a local elective official will work for his appointment in an executive position ingovernment, and thus neglect his constituents . . . ." 7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e.,

the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief

Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks toprevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7,

first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official

may be most beneficial to the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local

elective official to another post if so allowed by law or by the primary functions of his office. 8But, the contention is fallacious. Section 94 of the LGC is not determinative of the

constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over thefundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the

issue here nor is that section sought to be declared unconstitutional, we need not rule on itsvalidity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity.


34/411

In any case, the view that an elective official may be appointed to another post if allowed by lawor by the primary functions of his office, ignores the clear-cut difference in the wording of the

two (2) paragraphs of Sec. 7, Art.

IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices byan appointive official when allowed by law or by the primary functions of his position, the first

paragraph appears to be more stringent by not providing any exception to the rule againstappointment or designation of an elective official to the government post, except as are

particularly recognized in the Constitution itself, e.g., the President as head of the economic and

planning agency; 9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a

member of Congress who may be designated ex officio member of the Judicial and Bar Council.11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental

when drawn, and not without reason. It was purposely sought by the drafters of the Constitution

as shown in their deliberation, thus

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, isthat the prohibition is more strict with respect to elective officials, because in the case of

appointive officials, there may be a law that will allow them to hold other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials,

there will be certain situations where the law should allow them to hold some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the secondparagraph cannot be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of

Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive

Secretary, 13 where we stated that the prohibition against the holding of any other office oremployment by the President, Vice-President, Members of the Cabinet, and their deputies or

assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not

comprehend additional duties and functions required by the primary functions of the officials


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concerned, who are to perform them in an ex officio capacity as provided by law, without

receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making

the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor ofOlongapo City without need of appointment. The phrase "shall be appointed" unquestionably

shows the intent to make the SBMA posts appointive and not merely adjunct to the post ofMayor of Olongapo City. Had it been the legislative intent to make the subject positions ex

officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio"

would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso maycontravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have

the controversy resolved by the courts. Indeed, the Senators would not have been concerned with

the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.

Cognizant of the complication that may arise from the way the subject proviso was stated,

Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall bethe Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator

took a view that the constitutional proscription against appointment of elective officials may

have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City

instead of directing the President to appoint him to the post. Without passing upon this view ofSenator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus

nibbling in the bud the argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents

cannot be applied to uphold the constitutionality of the challenged proviso since it is not put inissue in the present case. In the same vein, the argument that if no elective official may be

appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him

to receive double compensation 16 would be useless, is non sequitur since Sec. 8 does not affect

the constitutionality of the subject proviso. In any case, the Vice-President for example, anelective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the

compensation attached to the cabinet position if specifically authorized by law.


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Petitioners also assail the legislative encroachment on the appointing authority of the President.

Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Boardand the Chief Executive Officer of SBMA, although he really has no choice under the law but to

appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons

having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selectionor designation of a person, by the person or persons having authority therefor, to fill an office or

public function and discharge the duties of the same. 18 In his treatise, Philippine Political

Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by theauthority vested with the power, of an individual who is to exercise the functions of a given

office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a

discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes theessence of his appointment," 21 and Mr. Justice Malcolm adds that an "[a]ppointment to office is

intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod

ng Maynila v. Intermediate Appellate Court 23 we 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 bestqualified among those who have the necessary qualifications and eligibilities. It is a prerogative

of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an

exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointmentpapers to the appointee. In other words, the choice of the appointee is a fundamental component

of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress)

cannot at the same time limit the choice of the President to only one candidate. Once the powerof appointment is conferred on the President, such conferment necessarily carries the discretion

of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress

may not abuse such power as to divest the appointing authority, directly or indirectly, of his


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discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress

can only be met by one individual, such enactment effectively eliminates the discretion of theappointing power to choose and constitutes an irregular restriction on the power of appointment.

24

In the case at bar, while Congress willed that the subject posts be filled with a presidential

appointee for the first year of its operations from the effectivity of R.A. 7227, the provisonevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of

Olongapo City. Since only one can qualify for the posts in question, the President is precluded

from exercising his discretion to choose whom to appoint. Such supposed power of appointment,

sans the essential element of choice, is no power at all and goes against the very nature itself ofappointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the

first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly

an abuse of congressional authority to prescribe qualifications where only one, and no other, canqualify. Accordingly, while the conferment of the appointing power on the President is a

perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment

on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or

during his incumbency, he may however resign first from his elective post to cast off theconstitutionally-attached disqualification before he may be considered fit for appointment. The

deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with

TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from hisposition.

MR. DAVIDE. Yes, we should allow that prerogative.


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MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may

leave the service, but if he is prohibited from being appointed within the term for which he was

elected, we may be depriving the government of the needed expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for

appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding

his ineligibility, appointed to other government posts, he does not automatically forfeit his

elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since anincumbent elective official is not eligible to the appointive position, his appointment or

designation thereto cannot be valid in view of his disqualification or lack of eligibility. This

provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator

or Member of the House of Representatives may hold any other office or employment in theGovernment . . . during his term without forfeiting his seat . . . ." The difference between the two

provisions is significant in the sense that incumbent national legislators lose their elective posts

only after they have been appointed to another government office, while other incumbent

elective officials must first resign their posts before they can be appointed, thus running the riskof losing the elective post as well as not being appointed to the other post. It is therefore clear

that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different

where it is expressly provided by law that a person holding one office shall be ineligible toanother. Such a provision is held to incapacitate the incumbent of an office from accepting or

holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258;

McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the

latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the

constitution, or statutes declare that persons holding one office shall be ineligible for election orappointment to another office, either generally or of a certain kind, the prohibition has been held

to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the

second is void (Ala.State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27


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As incumbent elective official, respondent Gordon is ineligible for appointment to the position of

Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuantto a legislative act that contravenes the Constitution cannot be sustained. He however remains

Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he

may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the

law, upon principles of policy and justice, will hold valid so far as they involve the interest of thepublic and third persons, where the duties of the office were exercised . . . . under color of a

known election or appointment, void because the officer was not eligible, or because there was a

want of power in the electing or appointing body, or by reason of some defect or irregularity in

its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or]under color of an election, or appointment, by or pursuant to a public unconstitutional law,

before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5

Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances andother emoluments which may have been received by respondent Gordon pursuant to his

appointment may be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting

the legality of the questioned proviso as well as the appointment of said respondent madepursuant thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he

expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief

Executive of this Au

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