AUSL/PUBLIC OFFICERS AND ELECTION LAW REVIEWER/AJP

ARELLANO UNIVERSITY SCHOOL OF LAW

PUBLIC OFFICERS AND ELECTION LAW
DE LEON REVIEWER
ATTY. DEMIGILIO
By: PARRENO, ANTONY J.
PUBLIC OFFICERS
Public Office
Right, authority, and duty created and
conferred by law, by which for a given period,
an individual is invested with sovereign
functions of the government, to be exercised by
him for the benefit of the public.
Public office, as a public trust
Powers so delegated to the officer are held in
trust for the people and are to be exercised in
behalf of the government or of all citizens who
may need the intervention of the officer. Public
officers and employees must at all times be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and
lead modest lives.
Public office, not a property
No one has a private right of property or vested
in any public office he holds, much less a
vested right to an expectancy of holding a
public office, at least as against the public
interest.
Public office is personal to the incumbent or
appointee. It does not pass to the heirs upon
death. It cannot be inherited.
Elements of a Public Office
1. Created by the Constitution or by law,
or by some body of agency to which the
power to create the office has been
delegated.
2. Invested with an authority to exercise
some portion of the sovereign power of
the State, for public interest
3. Powers and functions are defined by the
Constitution, or by law, or through
legislative authority
4. Duties pertaining thereto are performed
independently.
5. Continuing and permanent in nature
and not occasional or intermittent
Creation of Public Office
1. Constitution
2. Law
3. President
Modification or Abolition of public offices.
1. Constitution Modified or abolished
through a Constitutional provision

2. Law- May be modified or abolished by

the Congress.
Eligibility
State or quality of being legally fitted or
qualified to be chosen. Eligibility to a public
office is of a continuing nature and must both
exist at the commencement and during the
occupancy of an office.
Nature of right to hold public office
The right to hold public office is not a natural
right. It is also not a constitutional right.
Rather, it is a political privilege which depends
upon the favor of the people, which favor may
be coupled with reasonable conditions for the
public good.
An unqualified person cannot be appointed
(Ignacio vs. Banate Jr.)
Qualifications
1.
2.
3.
4.
5.
6.
7.
8.

Citizenship
Age
Right to Suffrage
Residence
Education
Ability to Read and Write
Political Affiliation
Civil Service Examination

Qualification prescribed by the Constitution

1. President and Vice-President naturalborn citizen, registered voter, read and
write, at least forty years of age on the
day of election, resident of the
Philippines for at least ten years.
2. Senators natural-born citizen, thirty
five years of age, read and write,
registered voter, resident of the
Philippines for not less than two years.
3. House of Representatives - natural-born
citizen, twenty five years of age, read
and write, registered voter, resident of
the Philippines for not less than one
year.
4. Justices and Judges natural-born
citizen. Member of the Supreme Court
must be at least forty years of age, and
have been for fifteen years or more a
judge of a lower Court of engaged in the
practice of law in the Philippines
Disqualification to hold Office
1.
2.
3.
4.
5.
6.
7.
8.
9.

Mental or Physical incapacity

Misconduct or Crime
Impeachment
Removal or Suspension from Office
Previous tenure of Office
Consecutive Terms
Holding more than one office
Relationship with the appointing power
Office newly created

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10. Elective Official
11. Candidate for any elective position
12. Local Government Code

and duties of the office to which he is

commissioned
Civil Service System

Appointment
Act of designation by the executive officer,
board, or body to whom that power has been
delegated, of the individual who is to exercise
the powers and functions of a given office.
Appointment involves the exercise of discretion
which, unless gravely abused, the Courts will
not attempt to control.
Revocation of Appointment
An appointment to an office, once made
and
complete,
is
not
subject
to
reconsideration of revocation. Revocation of
an appointment is made if it is to be
successful, before the appointment is
complete.
Kinds of Presidential Appointment
1. Regular Appointment Made while
Congress is in session, are actually
mere
nominations
subject
to
confirmation by the Commission on
Appointments.
2. Ad Interim Made while Congress is not
in session of during its recess
3. Permanent Last until they are lawfully
terminated
4. Temporary Acting or those which last
until a permanent appointment is
issued.
Designations
Imposition of new or additional duties upon an
officer to be performed by him in a special
manner, while he performs the function of his
permanent office.
Steps in appointing process:
1. Nomination an executive function,
upon which no limitation may be
imposed by Congress, except those
resulting from the need of securing the
concurrence of the Commission on
Appointments and from the exercise of
the limited legislative power to prescribe
the qualifications to a given appointive
office.
2. Confirmation - the power to confirm or
reject certain appointments belongs to
the congress. It is exercised through the
members of the both Houses in the
Commission on Appointment
3. Issuance of commission Commission written authority from a competent
source given to the officer as his
warrant for the exercise of the powers

Embraces
all
instrumentalities
Government,

branches,
subdivisions,
and
agencies
of
the

Career Service
a) Entrance based on merit and fitness
b) Security of tenure
c) Opportunity for advancement
Three major levels
1. Non-Professional
2. Professional
3. Career Executive
Vacancy
An office is empty and without a legally a
legally qualified incumbent appointed or elected
to it with a lawful right to exercise its powers
and perform its duties.
An office may be vacant when it is occupied by
one who is not a de jure officer.
Classification of Vacancy
1. Original when an office is created and
no one has been appointed to fill it
2. Constructive when an incumbent has
no legal right or claim to continue in
office and can be legally replaced by
another,
3. Accidental when the incumbent
having died, resigned or been removed,
there is no one in esse discharging the
duties of the office
4. Absolute when the term of an
incumbent having expired, and the
latter not having held over, no
successor is in being who is legally
qualified to assume the office.
De Facto Officers
A person who, by the proper authority, is
admitted and sworn into office is deemed to be
rightfully in such office until, by judicial
declaration in a proper proceeding, he is ousted
therefrom, or his admission thereto is declared
void.
De Jure Officers
A person who has the lawful right to the office
in all respects.
Requisites to become a De Jure officer
1. Legal Qualifications
2. Lawfully chosen to such office

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3. Qualified himself to perform the duties
of such office according to the mode
prescribed by the Constitution or law.
De Jure Officer vs. De Facto Officer
1. The former rests on right, while the
latter on reputation
2. The former has the lawful right or title
to the office, while the latter has the
possession.
3. The former cannot be removed in a
direct proceeding, while the latter may
be ousted in a direct proceeding against
him
Usurper
Is one who takes possession of the office and
undertakes to act officially without any color of
right or authority, either actual or apparent.
De Facto vs. Usurper
1. De Facto has a color of right or title to
the office, while the usurper has neither
lawful title nor color of right or title to
the office
2. De Facto may be removed only in a
direct proceeding against him, while the
usurper can be ousted at any time.
3. Acts of the usurper are null and void.
Elements of a De Facto Officership
1. There must be a De Jure Office
2. There must be a color of right or general
acquiescence
3. There
must
be
actual
physical
possession of the office in good faith.
Scope of power of a public officer
1. Expressly conferred upon him by the
law under which he has been appointed
or elected
2. Expressly annexed to the office by the
law which created it or some other law
referring to it
3. Attached to the office as incidents to it.
Recovery of Compensation
1. A de jure officer cannot recover from the
Government salary or compensation
which has been paid to a de facto
officer. However, where the Government
continues to pay the de facto officer
after the notice of adjudication of the
protest in favor of the de jure, the latter
may recover from the Government the
paid amount.
2. Where the tenure of the de facto officer
is wrongful the salary received by him
during such tenure may be recovered.

3. Usurper is always liable to the de jure

officer for the compensation received,
such may be recovered.
Personnel Actions
1. Appointment through certification
Issued to a person who has been
selected from a list of qualified persons
certified
by
the
Civil
Service
Commission
from
an
appropriate
register of eligible.
2. Promotion Advancement from one
position to another with an increase in
duties and responsibilities, and increase
in pay.
3. Transfer Movement from one position
to another which is of equivalent rank,
level, salary without break in service
involving
the
issuance
of
an
appointment
4. Reinstatement Restoration to a state
or condition from which one has been
removed or separated.
5. Reemployment Persons who were
separated as a result of reduction in
force or reorganization
6. Detail Movement of an employee from
on department or agency to another
without the issuance of an appointment
Right to reinstatement and back salary
1. Where removal or suspension is lawful,
public officer is not entitled to any
compensation if he has not rendered
any service.
2. Where removal or suspension was
unlawful, public officer is entitles to
compensation of the amount which he
should have received. Award of back
wages is limited to a maximum period of
five years.
3. Where suspended employee is later
found innocent, back pay may be
allowed for the period when an
employee is not allowed to work without
his fault.
4. Where the employee is not completely
exonerated of the charges, he would not
be entitled to the payment of his back
salaries.
5. Where a public officer was illegally
dismissed, he is entitled to be reinstated
to his former position or at least to a
comparable position.
Disabilities of President, Vice President,
Members of the Cabinet and their Deputies
and Assistant
1. They shall not hold, unless otherwise
provided in the Constitution itself, other
office or employment
2. They shall
profession

not

practice

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any

other

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3. They shall no participate, directly, or
indirectly, in any business
4. They shall not be financially interested,
directly or indirectly in any contract
with, or in any franchise or special
privilege granted by the government or
any
subdivision,
agency,
or
instrumentality thereof including any
government-owned
or
controlled
corporation or their subsidiaries
5. They shall avoid conflict of interest
Disabilities of Members of Congress
1. They shall not 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, without forfeiting the seat
2. They shall not be appointed to any office
which may have been created or the
emoluments thereof increased during
the term for which he was elected
3. They cannot personally appear as
counsel before any Court of justice or
before the Electoral tribunals, or quasijudicial and other administrative bodies
4. They shall not be financially interested,
directly or indirectly in any contract
with, or in any franchise or special
privilege granted by the government or
any
subdivision,
agency,
or
instrumentality thereof including any
government-owned
or
controlled
corporation or their subsidiaries
5. They shall not intervene in any cause or
matter before any office of the
government for his pecuniary benefit
Three-Fold Liability Rule:
Wrongful acts or omissions of public officers
may give rise to civil, administrative, and
criminal liability.

Administrative Liability
1. Reelection
operates
as
electorate
condonation of a previous misconduct
administrative in nature
2. Condonation does not extend
reappointed coterminous employees

to

3. Reelection does not extinguish criminal

or civil liability
Requisites for recovery of damages arising
from acts of public officers
1. Damage to himself
2. Wrong or violation of the right of a party
committed by the other
Damnum Absque Injuria
Loss without Damage
Liability of Ministerial Officers:
1. Nonfeasance neglect or refusal to
perform an act which is officers legal
obligation to perform
2. Misfeasance failure to use that degree
of care, skill, and diligence required in
the performance of official duty
3. Malfeasance

doing
through
ignorance, inattention or malice, of an
act which he had no legal right to
perform.
Art. 27. Any person suffering material or moral
loss because a public servant or employee
refuses or neglects, without just cause, to
perform his official duty may file an action for
damages and other relief against he latter,
without
prejudice
to
any
disciplinary
administrative action that may be taken.
The general rule is that a public officer acting
within the scope of his authority and in his
official capacity is not personally liable on
contracts executed in behalf of the government.
Liability of Accountable officers

Administrative Case
Substantial Evidence Such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion
Civil Case
Preponderance of Evidence
Criminal Case
Guild beyond reasonable doubt

1. Bond Every officer of any government

agency whose duties permit or require
the
possession
or
custody
of
government funds or property shall be
accountable therefor and for the
safekeeping thereof in conformity with
law.
2. Primary and secondary responsibility
The head of the agency of the
government
is
immediately
and
primarily responsible for all government
funds and property. Persons entrusted
with such funds are secondarily liable.

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3. Unlawful Expenditures Personal
responsibility of the official or employee
found to be directly responsible.
Mode of termination of official relations:
1. Expiration of the term or tenure of
office
Term - fixed and definite period of time to hold
office, perform its functions, and enjoys its
privileges and emoluments until the expiration
of said period.
Tenure period during which the incumbent
actually holds the office.
Security of tenure - than an officer or employee
in the civil service shall not be suspended or
dismissed except for cause as provided by law
and after due process
2. Retirement
3. Death or permanent disability
4. Resignation formal renunciation or
relinquishment of a public office
a. Intent to relinquish a part of the
term
b. Voluntary act of relinquishment
c. Acceptance by the proper authority
Requisite: there must be an intention to
relinquish the part of the term, and must be
accompanied by the act of relinquishment.
5. Acceptance of an incompatible office
6. Abandonment of office voluntary
relinquishment of an office by the holder
of all right, title, or claim thereto with the
intention of not reclaiming it, or
terminating his possession and control
thereof.
7. Prescription of right to office
8. Removal ouster of an incumbent
before the expiration of his term.
9. Impeachment
10. Abolition of office
11. Conviction of a crime
12. Recall by this procedure, an elective
official may be removed at any time
during his term by the vote of the people
at an election called for such purpose or
at a general election.

An elective official may be disciplined,

suspended, or removed from office on any of
the following grounds committed while in
office:
1. Disloyalty to the Republic of the
Philippines
2. Culpable violation of the Constitution
3. Dishonesty, Oppression, Misconduct in
the office and neglect of duty
4. Commission of any offense involving
moral
turpitude
or
an
offense
punishable by at least prision mayor
5. Abuse of authority
6. Unauthorized
absence
for
fifteen
consecutive working days
7. Application for, or acquisition of, foreign
citizenship or residence or the status of
an immigrant of another country.
Exception of Nepotism
1. Persons employed in a confidential
capacity
2. Teachers
3. Physicians
4. Members of the Armed Forces of the
Philippines
Preventive Suspension
1. Preventive
investigation

Suspension

pending

2. Preventive Suspension pending appeal

Entitled to compensation for the period
of their suspension pending appeal if
they are found innocent.
Penalties for Grave Offenses
1. Dismissal
a. Dishonesty
b. Gross neglect of duty
c. Grave misconduct
d. Being notoriously undesirable
e. Conviction of a crime involving
moral turpitude
f. Falsification of official document
g. Physical or mental incapacity or
disability due to vicious habits
h. Engaging directly or indirectly, in
partisan political activities by one
holding non-political office
i. Bribery
j. Contracting loans of money or other
property from persons with whom
the office has business relations
k. Disloyalty to the Republic of the
Philippines
2. Suspension from six months and one
day to one year for the first offense and
dismissal for the second offense

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Penalties for Less Grave Offense
1. Suspension from one month and one
day to six month for the first and
dismissal for the second offense
Penalties for Light Offenses
1. Reprimand for the first offense,
suspension from one day to thirty days
for the second offense, and dismissal for
the third offense
Impeachable Officials
The President, the Vice President, the Members
of the Supreme Court, the Members of the
Constitutional
Commissions,
and
the
Ombudsman.
The House of Representatives has the sole
power to initiate all cases of impeachment
while the Senate sits as a Court for the trial of
impeachment cases,
Reorganization
Alteration of existing structure of government
offices or units therein, including the lines of
control, authority and responsibility between
them to promote greater efficiency, to remove
redundancy of functions, or to effect economy
and make it more responsive to the needs of
their public clientele.
Must be based on a valid purpose and done in
good faith.
Effects of Pardon
Pardon granted after conviction frees the
individual from all the penalties and legal
disabilities and restores him to all his civil
rights.
Unless the right to public office is expressly
restored by the pardon, a pardon does not ipso
facto restore a convicted felon to public office.

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ELECTION LAW

Qualification of a voter

Suffrage
Right and obligation of qualified citizens to vote
in the election of certain national and local
officers of the government and in the decision
of public questions submitted to the people.
It is not a natural right, but a privilege to be
given or withheld by the lawmaking power
subject to constitutional limitations. Right of
suffrage is based on the theory that the people
who bear the burden of government should
share in the privilege of choosing the officials of
the government.
1. Election
It is the means by which the people
choose, through the use of the ballot,
their officials for definite and fixed
periods and to whom they entrust, for
the time being as their representatives
2. Plebiscite
Vote of people expressing their choice
for or against a proposed law or
enactment submitted to them
3. Referendum
It is the submission of a law passed by
the national or local legislative body to
the registered voters at an election
called for the purpose for their
ratification or rejection
4. Initiative
Process whereby the registered voters
directly propose, enact, or amend laws,
nation or local through an election
called for the purpose
5. Recall
A method by which a public officer may
be removed from office during his
tenure or before the expiration of his
term by a vote of the people after
registration of a petition signed by a
required percentage of qualified voters.
Disqualification for Suffrage:
1. Persons sentenced by final judgment to
suffer imprisonment for not less than 1
year, not having been pardoned or
granted amnesty
2. Persons adjudged by final judgment by
a competent court or tribunal of having
committed a crime involving disloyalty
to the government or a crime against
national security, not restored to full
civil and political rights by law
3. Persons insane or incompetent
declared by competent authority.

as

1. Citizenship
2. Age
3. Residence
For purposes of Election Law, Residence is
synonymous with Domicile (Romualdez-Marcos
vs. COMELEC)
Cancellation of Certificate by COMELEC
1. Certificate has been filed to put the
election process in mockery or disrepute
2. Certificate was filed to cause confusion
among the voters by the similarity of the
names
3. No bona fide intention to run for the
office
Disqualification
1. Convicted with a penalty for more than
eighteen months for a crime involving
moral turpitude.
2. Insane or Incompetent
3. Given money or material consideration
to influence, induce or corrupt the
voters or public officials performing
electoral functions
4. Terrorism
5. Solicited,
Received
or
made
contributions prohibited.
Political Parties
Organized group of persons pursuing the same
ideology, political ideas or platforms of
government and includes its branches and
divisions
Sectoral Party
Organized group of citizens belonging to any of
the sectors whose principal advocacy pertains
to the special interests and concerns of their
sector.
Coalition
Aggrupation of duly registered national,
regional, or sectoral parties or organizations for
political and/or election purposes
Party-list System
Article VI, Section 5(1), 1987 Constitution: The
House of Representatives shall be composed of
not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be
elected from legislative districts apportioned
among the provinces, cities, and the
Metropolitan Manila area in accordance with
the number of their respective inhabitants, and
on the basis of a uniform and progressive ratio,
and those who, as provided by law, shall be
elected through a party-list system of registered

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national, regional, and sectoral parties or
organizations.

marginalized and underrepresented

sectors; so also must its nominees

Guidelines
for
Screening
party-list
participants
(Ang Bagong Bayani vs COMELEC)

8. The nominee must be able to contribute

to the formulation and enactment of
appropriate legislation what will benefit
the nation

1. Political Party, Sector, Organization or

Coalition
must
represent
the
marginalized and underrepresented
groups.
2. Political parties must comply with the
declared statutory policy of enabling
Filipino
citizens
belonging
to
marginalized and underrepresented
sectors to be elected to the House of
Representatives
3. Express Constitutional provision that
the religious sector may not be
represented in the party-list system.
4. Must not be disqualified under SEC 6,
RA No. 7941, which states:
(1) It is a religious sect or denomination,
organization or association, organized
for religious purposes;

Qualification of Party-List Nominees.

SEC 9, RA 7941
No person shall be nominated as party-list
representative unless he is a natural born
citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not
less than one (1) year immediately preceding
the day of the election, able to read and write,
bona fide member of the party or organization
which he seeks to represent for at least ninety
(90) days preceding the day of the election, and
is at least twenty-five (25) years of age on the
day of the election. In case of a nominee of the
youth sector, he must at least be twenty-five
(25) but not more than thirty (30) years of age
on the day of the election. Any youth sectoral
representative who attains the age of thirty
during his term shall be allowed to continue
until the expiration of his term.
Election

(2) It advocates violence or unlawful

means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any
foreign government, foreign political
party, foundation, organization, whether
directly or through any of its officers or
members or indirectly through third
parties for partisan election purposes;
(5) It violates or fails to comply with
laws, rules or regulations relating to
elections;
(6) It declares untruthful statements in
its petition;

Embodiment of the popular will, the expression

of the sovereign will of the people in the choice
or selection of candidates to public office.
Kinds of election:
1. General election - one provided by law
for the election of offices throughout the
State, or certain subdivisions thereof,
after the expiration of the full term of
former officers
2. Regular election an election, national
or local, held at regular intervals on
such dates as provided by law
3. Special election one provided for by
law under special circumstances

(7) It has ceased to exist for at least one

(1) year; or

Postponement of Election

(8) It fails to participate in the last two

(2) preceding elections or fails to obtain
at least two per centum (2%) of the
votes cast under the party-list system in
the two (2) preceding elections for the
constituency in which it has registered.

When for any serious cause such as violence,

terrorism, loss or destruction of election
paraphernalia or records, force majeure, and
other analogous causes of such a nature that
the holding of a free, orderly and honest
election should become impossible.

5. Party or Organization must not be

funded by the Government
6. Party and nominees must comply with
the requirements of law
7. Not only the
organization

candidate
must

party or
represent

Requisites for Special Elections

1. No voting has taken place in any
precint, or even if there was voting, the
election nevertheless results in failure
to elect
2. The votes not cast would not affect the
result of the election

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3. The cause of such failure of election
should have been force majeure,
violence, terrorism, fraud or other
analogous causes
Party-list elections: Parameters:
(Atong Paglaum v. Comelec)
1. Three different groups may participate
in the party-list system: (1) national
parties or organizations, (2) regional
parties or organizations, and (3) sectoral
parties or organizations.
2. National parties or organizations and
regional parties or organizations do not
need to organize along sectoral lines
and do not need to represent any
"marginalized and underrepresented"
sector.
3. Political parties can participate in partylist elections provided they register
under the party-list system and do not
field candidates in legislative district
elections. A political party, whether
major or not, that fields candidates in
legislative
district
elections
can
participate in party-list elections only
through its sectoral wing that can
separately register under the party-list
system. The sectoral wing is by itself an
independent sectoral party, and is
linked to a political party through a
coalition.

defined political constituencies," either

must belong to their respective sectors,
or must have a track record of advocacy
for their respective sectors. The
nominees of national and regional
parties or organizations must be bonafide members of such parties or
organizations.
6. National, regional, and sectoral parties
or
organizations
shall
not
be
disqualified if some of their nominees
are disqualified, provided that they have
at least one nominee who remains
qualified
A person who files a certificate of candidacy is
not a candidate until the start of the campaign
period (Lanot vs. COMELEC)
Essential elements for violation of Section 80 of
the Omnibus Election Code are: (1) a person
engages in an election campaign or partisan
political activity; (2) the act is designed to
promote the election or defeat of a particular
candidate or candidates; (3) the act is done
outside the campaign period. (Penera vs.
COMELEC)

4. Sectoral parties or organizations may

either
be
"marginalized
and
underrepresented" or lacking in "welldefined political constituencies." It is
enough that their principal advocacy
pertains to the special interest and
concerns of their sector. The sectors
that
are
"marginalized
and
underrepresented"
include
labor,
peasant,
fisherfolk,
urban
poor,
indigenous
cultural
communities,
handicapped, veterans, and overseas
workers. The sectors that lack "welldefined political constituencies" include
professionals, the elderly, women, and
the youth.
5. A majority of the members of sectoral
parties or organizations that represent
the
"marginalized
and
underrepresented" must belong to the
"marginalized and underrepresented"
sector they represent. Similarly, a
majority of the members of sectoral
parties or organizations that lack "welldefined political constituencies" must
belong to the sector they represent. The
nominees
of
sectoral
parties
or
organizations
that
represent
the
"marginalized and underrepresented,"
or that represent those who lack "wellAUSL/PUBLIC OFFICERS AND ELECTION LAW REVIEWER/AJP