LAW ON PUBLIC OFFICERS

Public Office is the right, authority, and duty created and conferred by law, by
which for a given period, either fixed by law or enduring at the pleasure of the
appointing power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public.

Essential elements

1. Created by Constitution or by law or by some body or agency to which the

power to create the office has been delegated (enabling law)
2. .Invested with authority to exercise some portion of the sovereign power of
the State
3. Powers/Functions defined by the enabling law
4. Duties are performed independently without control unless those of an
inferior
5. Continuing / permanent in nature

Distinctions

Public Official is an officer of the Government itself, as distinguished from the

officers and employees of instrumentalities of government.

Officer is distinguished from an employee in the greater importance, dignity and

independence of his position, being required to take an official oath, and perhaps
give an official bond and in the liability to be called to account as a public
offender for misfeasance or nonfeasance in office.

Eligibility

Eligibility is the state or quality of being legally fitted or qualified to be chosen.

Qualification refer to the act which a person, before entering upon the
performance of his duties is by law required to do such as the taking, and often,
of subscribing and filing of an official oath, and, in some cases, the giving of an
official bond.

Who are required to give an official bond?

Accountable public officers or those to who are entrusted the collection and
custody of public money, and public ministerial officers whose actions may affect
the rights and interests of individuals.

Disqualifications
Disqualifications to hold public office are 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 or the emoluments of which have
been increased, being an elective official, having been a candidate for any elective
position, and grounds under the local government code. In the absence of
constitutional inhibition, Congress has the same right to provide
disqualifications that it has to provide qualifications for office.

When the constitution has attached a disqualification to the holding of any office,
Congress cannot remove it under the power to prescribe qualifications as to such
offices as it may create.

Presumption is in favor of eligibility. The qualifications are continuing

requirements and must be possessed not only at the time of appointment or
election or assumption of office but during the officer’s entire tenure. Formal
qualifications are: citizenship, age, suffrage, residence, education, ability to read
and write, political affiliation, civil service examination

Appointment

Appointment is the 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. It is to be distinguished from the selection
or designation by a popular vote. Power to appoint is generally regarded as an
executive function. But it is not limited to the executive department. Power of
appointment is absolute when the choice of the appointing authority
inconclusive.

It is conditional where assent or approval by some other officer or body is

necessary to complete the appointment. A

Acceptance of appointment is not necessary for the completion or validity

of appointment. Acceptance may be express when it is done verbally or in
writing. Acceptance is Implied when without formal acceptance, the appointee
enters upon the exercise of the duties and functions of an office. The general rule
is that an appointment to an office, once made and complete, is not subject to
reconsideration or revocation. The exception is where an officer irremovable at
will of the appointing power.

Steps in the Appointing Process:

1. Nomination – exclusive prerogative of the President

2. Confirmation – belongs to Congress i.e. Commission on Appointments
3. Issuance of commission – a commission is a written authority from a
competent source given to the officer as his warrant for the exercise of the
 powers and duties of the office to which he is commissioned. Confirmation on
the part of the Civil Service Commission is called “Attestation”.

Designation

Designation is simply the mere imposition of new or additional duties upon an

officer to be performed by him in a special manner. It presupposes that the officer
is already in the service by virtue of an earlier appointment, performing other
functions.

Vacancy

There is a vacancy when an office is empty and without a legally qualified

incumbent appointed or elected to it with a lawful right to exercise its powers
and perform its duties. There can be no appointment to a non-vacant position.
Causes of vacancy are death, permanent disability, and removal from office
or resignation of the incumbent. Other causes of vacancy are abandonment,
expiration of term, conviction of a crime, impeachment conviction, acceptance of
incompatible office, creation of a new office, reaching the age limit,
And recall.

De facto, de jure officer; usurper

De facto officer is one who has the reputation of being the officer he assumed to
be and yet is not a good officer in point of law.

A De jure officer is one who has the lawful right to the office in all respects, but
who has either been ousted from it, or who has never actually taken possession
of it. When the officer de jure is also the officer de facto, the lawful title and
possession are united.

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.

Scope of Power

Scope of power of a public officer consists of those powers which are expressly
conferred upon him by the law under which he has been appointed or elected;
expressly annexed to the office by the law which created it or some other law
referring to it; or attached to the office as incidents to it.

Ministerial power
Is when it is absolute, certain, and imperative involving merely execution of a
specific duty arising from fixed and designated facts.

Discretionary power

Is when it requires the exercise of reason and discretion in determining how or

whether the act shall be done or the course pursued.

Modes of Termination of Official Relations

• Natural Causes
1. Expiration of the term or tenure of office
2. reaching the age limit (retirement)
3. Death or permanent disability

• Acts / Neglect of Officer

1. Resignation
2. Acceptance of an incompatible office
3. Abandonment of Office
4. Prescription of Right to Office

• Acts of the Government or People

1. Removal
2. Impeachment
3. Abolition of Office
4. Conviction of a crime
5. Recall

Preventive Suspension

Two Kinds:

1. Preventive Suspension Pending Investigation

2. Preventive Suspension Pending Appeal The duration of preventive
suspension is coeval with the period prescribed for deciding administrative
disciplinary cases. If the case is decided before ninety (90) days then the
suspension will last less than ninety (90) days, but if the case is not
decided within ninety (90) days, then the suspension may not exceed the
maximum period of ninety (90) days.

CASES

Define Appointment. Discuss its nature.

Held: An “appointment” to a public office is the unequivocal act of designating
or selecting by one having the authority therefor of an individual to discharge
and perform the duties and functions of an office or trust. The appointment is
deemed complete once the last act required of the appointing authority has been
complied with and its acceptance thereafter by the appointee in order to render
it effective. Appointment necessarily calls for an exercise of discretion on the
part of the appointing authority. In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court, reiterated in Flores v. Drilon, this Court has held:

“The power to appoint is, in essence, discretionary. The appointing power has
the right of choice which he may exercise freely according to his judgment,
deciding for himself who is best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the appointing power x x
x.”

Indeed, it may rightly be said that the right of choice is the heart of the power to
appoint. In the exercise of the power of appointment, discretion is an integral
thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999, 3rd Div. [Vitug])

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

Held: The head of an agency who is the appointing power is the one most
knowledgeable to decide who can best perform the functions of the
office. Appointment is an essentially discretionary power and must be performed
by the officer vested with such power according to his best lights, the only
condition being that the appointee should possess the qualifications required by
law. If he does, then the appointment cannot be faulted on the ground that there
are others better qualified who should have been preferred. Indeed, this is a
prerogative of the appointing authority which he alone can decide. The choice
of an appointee from among those who possess the required qualifications is a
political and administrative decision calling for considerations of wisdom,
convenience, utility and the interests of the service which can best be made by
the head of the office concerned, the person most familiar with the organizational
structure and environmental circumstances within which the appointee must
function.

As long as the appointee is qualified the Civil Service Commission has no choice
but to attest to and respect the appointment even if it be proved that there are
others with superior credentials. The law limits the Commission’s authority only
to whether or not the appointees possess the legal qualifications and the
appropriate civil service eligibility, nothing else. If they do then the
appointments are approved because the Commission cannot exceed its power by
substituting its will for that of the appointing authority. Neither can
we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc
[Bellosillo, J.])
Does the “next-in-rank” rule import any mandatory or peremptory
requirement that the person next-in-rank must be appointed to the
vacancy?

Held: The “next-in-rank rule is not absolute; it only applies in cases of

promotion, a process which denotes a scalar ascent of an officer to another
position higher either in rank or salary. And even in promotions, it can be
disregarded for sound reasons made known to the next-in-rank, as the concept
does not import any mandatory or peremptory requirement that the person next-
in-rank must be appointed to the vacancy. The appointing authority, under the
Civil Service Law, is allowed to fill vacancies by promotion, transfer of present
employees, reinstatement, reemployment, and appointment of outsiders who
have appropriate civil service eligibility, not necessarily in that order. There is
no legal fiat that a vacancy must be filled only by promotion; the appointing
authority is given wide discretion to fill a vacancy from among the several
alternatives provided by law.

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

In Taduran v. Civil Service Commission, the Court construed that phrase to mean
that the person next-in-rank “would be among the first to be considered for the
vacancy, if qualified.” In Santiago, Jr. v. Civil Service Commission, the Court
elaborated the import of the rule in the following manner:

“One who is next-in-rank is entitled to preferential consideration for promotion

to the higher vacancy but it does not necessarily follow that he and no one else
can be appointed. The rule neither grants a vested right to the holder nor
imposes a ministerial duty on the appointing authority to promote such person
to the next higher position x x x” (Abila v. CSC, 198 SCRA 102, June 3, 1991,
En Banc [Feliciano])

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

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

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

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

It is settled that a permanent appointment can be issued only “to a person who
meets all the requirements for the position to which he s being appointed,
including the appropriate eligibility prescribed.” Achacoso did not. At best,
therefore, his appointment could be regarded only as temporary. And being so,
it could be withdrawn at will by the appointing authority and “at a moment’s
notice,” conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments
of the parties in the petitioner’s Reply and of the Solicitor-General’s Rejoinder,
must find for the respondents.

The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure in its occupant even if he does not
possess the required qualifications. Such right will have to depend on the nature
of his appointment, which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position cannot be
appointed to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate
eligibles. The appointment extended to him cannot be regarded as permanent
even if it may be so designated.

Evidently, private respondent’s appointment did not attain

permanency. Not having taken the necessary Career Executive Service
examination to obtain the requisite eligibility, he did not at the time of his
appointment and up to the present, possess the needed eligibility for a position
in the Career Executive Service. Consequently, his appointment as Ministry
Legal Counsel-CESO IV/Department Legal Counsel and/or Director III, was
merely temporary. Such being the case, he could be transferred or reassigned
without violating the constitutionally guaranteed right to security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly

contending that the mobility and flexibility concepts in the assignment of
personnels under the Career Executive Service do not apply to him because he
s not a Career Executive Service Officer. Obviously, the contention is without
merit. As correctly pointed out by the Solicitor General, non-eligibles holding
permanent appointments to CES positions were never meant to remain immobile
in their status. Otherwise, their lack of eligibility would be a premium vesting
them with permanency in the CES positions, a privilege even their eligible
counterparts do not enjoy.

Then too, the cases on unconsented transfer invoked by private

respondent find no application in the present case. To reiterate, private
respondent’s appointment is merely temporary; hence, he could be transferred
or reassigned to other positions without violating his right to security of
tenure. (De Leon v. Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc
[Ynares-Santiago])

In the career executive service, is a career executive service (CES)

eligibility all that an employee needs to acquire security of tenure? Is
appointment to a CES rank necessary for the acquisition of such security
of tenure?

Held: In the career executive service, the acquisition of security of

tenure which presupposes a permanent appointment is governed by the rules
and regulations promulgated by the CES Board x x x.

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

CES eligibility; and Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in the

career executive service (except first and second level employees in the civil
service), pertains only to rank and not to the office or to the position to which
they may be appointed. Thus, a career executive service officer may be
transferred or reassigned from one position to another without losing his rank
which follows him wherever he is transferred or reassigned. In fact, a CESO
suffers no diminution of salary even if assigned to a CES position with lower
salary grade, as he is compensated according to his CES rank and not on the
basis of the position or office he occupies.

In the case at bar, there is no question that respondent Ramon S. Roco, though
a CES eligible, does not possess the appropriate CES rank, which is – CES rank
level V, for the position of Regional Director of the LTO (Region V). Falling short
of one of the qualifications that would complete his membership in the CES,
respondent cannot successfully interpose violation of security of
tenure. Accordingly, he could be validly reassigned to other positions in the
career executive service. x x x

Moreover, under the mobility and flexibility principles of the Integrated

Reorganization Plan, CES personnel may be reassigned or transferred from one
position to another x x x.

One last point. Respondent capitalizes on the fact that petitioner Luis Mario M.
General is not a CES eligible. The absence, however, of such CES eligibility is of
no moment. As stated in Part III, Chapter I, Article IV, paragraph 5(c), of the
Integrated Reorganization Plan –

“x x x the President may, in exceptional cases, appoint any person who is not a
Career Executive Service eligible; provided that such appointee shall
subsequently take the required Career Executive Service examination and that
he shall not be promoted to a higher class until he qualified in such
examination.”
Evidently, the law allows appointment of those who are not CES eligible, subject
to the obtention of said eligibility, in the same manner that the appointment of
respondent who does not possess the required CES rank (CES rank level V) for
the position of Regional Director of the LTO, is permitted in a temporary
capacity. (General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1st Div. [Ynares-
Santiago])

How are positions in the Civil Service classified? Discuss the

characteristics of each.

Ans.: Positions in the Civil Service may be classified into: 1) Career

Positions, and 2) Non-Career Positions.

Career Positions are characterized by (1) entrance based on merit and fitness to
be determined as far as practicable by competitive examination, or based on
highly technical qualifications; (2) opportunity for advancement to higher career
positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk.
V, E.O. No. 292).

The Non-Career Service shall be characterized by (1) entrance on bases other

than of the usual tests of merit or fitness utilized for the career service; and (2)
tenure which is limited to a period specified by law, or which is coterminous with
that of the appointing authority or subject to his pleasure, or which is limited to
the duration of a particular project for which purpose employment was made
(Sec. 9, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).

What is a primarily confidential position? What is the test to determine

whether a position is primarily confidential or not?

Held: A primarily confidential position is one which denotes not only confidence
in the aptitude of the appointee for the duties of the office but primarily close
intimacy which ensures freedom from intercourse without embarrassment or
freedom from misgivings or betrayals of personal trust or confidential matters of
state. (De los Santos v. Mallare, 87 Phil. 289 [1950])

Under the proximity rule, the occupant of a particular position could be

considered a confidential employee if the predominant reason why he was chosen
by the appointing authority was the latter’s belief that he can share a close
intimate relationship with the occupant which ensures freedom of discussion
without fear or embarrassment or misgivings of possible betrayal of personal
trust or confidential matters of state. Withal, where the position occupied is
more remote from that of the appointing authority, the element of trust between
them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)
Does the Civil Service Law contemplate a review of decisions exonerating
officers or employees from administrative charges?

Held: By this ruling, we now expressly abandon and overrule extant

jurisprudence that “the phrase ‘party adversely affected by the decision’ refers to
the government employee against whom the administrative case is filed for the
purpose of disciplinary action which may take the form of suspension, demotion
in rank or salary, transfer, removal or dismissal from office” and not included
are “cases where the penalty imposed is suspension for not more than thirty (30)
days or fine in an amount not exceeding thirty days salary” (Paredes v. Civil
Service Commission, 192 SCRA 84, 85) or “when respondent is exonerated of the
charges, there is no occasion for appeal.” (Mendez v. Civil Service Commission,
204 SCRA 965, 968) In other words, we overrule prior decisions holding that the
Civil Service Law “does not contemplate a review of decisions exonerating
officers or employees from administrative charges” enunciated in Paredes v. Civil
Service Commission (192 SCRA 84); Mendez v. Civil Service Commission (204
SCRA 965); Magpale v. Civil Service Commission (215 SCRA 398); Navarro v. Civil
Service Commission and Export Processing Zone Authority (226 SCRA 207) and
more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC v.
Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What is preventive suspension? Discuss its nature.

Held: Imposed during the pendency of an administrative investigation,

preventive suspension is not a penalty in itself. It is merely a measure of
precaution so that the employee who is charged may be separated, for obvious
reasons, from the scene of his alleged misfeasance while the same is being
investigated. Thus preventive suspension is distinct from the administrative
penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No.
807. While the former may be imposed on a respondent during the investigation
of the charges against him, the latter is the penalty which may only be meted
upon him at the termination of the investigation or the final disposition of the
case. (Beja, Sr. v. CA, 207 SCRA 689, March 31, 1992 [Romero])

Discuss the kinds of preventive suspension under the Civil Service

Law. When may a civil service employee placed under preventive
suspension be entitled to compensation?

Held: There are two kinds of preventive suspension of civil service employees
who are charged with offenses punishable by removal or suspension: (1)
preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No.
292) and (2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the
respondent is exonerated (Section 47, par. 4, Civil Service Law, EO No. 292).

Preventive suspension pending investigation is not a penalty. It is a measure

intended to enable the disciplining authority to investigate charges against
respondent by preventing the latter from intimidating or in any way influencing
witnesses against him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and the respondent will
automatically be reinstated. If after investigation respondent is found innocent
of the charges and is exonerated, he should be reinstated. However, no
compensation was due for the period of preventive suspension pending
investigation. The Civil Service Act of 1959 (R.A. No. 2260) providing for
compensation in such a case once the respondent was exonerated was revised
in 1975 and the provision on the payment of salaries during suspension was
deleted.

But although it is held that employees who are preventively suspended pending
investigation are not entitled to the payment of their salaries even if they are
exonerated, they are entitled to compensation for the period of their suspension
pending appeal if eventually they are found innocent.

Preventive suspension pending investigation x x x is not a penalty but only a

means of enabling the disciplining authority to conduct an unhampered
investigation. On the other hand, preventive suspension pending appeal is
actually punitive although it is in effect subsequently considered illegal if
respondent is exonerated and the administrative decision finding him guilty is
reversed. Hence, he should be reinstated with full pay for the period of the
suspension. (Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc
[Mendoza])

Discuss the power of Ombudsman to conduct administrative

investigations, and to impose preventive suspension.

Held: Worth stressing, to resolve the present controversy, we must recall that
the authority of the Ombudsman to conduct administrative investigations is
mandated by no less than the Constitution. x x x

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

Section 21 of R.A. 6770 names the officials subject to the Ombudsman’s

disciplinary authority x x x.

Petitioner is an elective local official accused of grave misconduct and

dishonesty. That the Office of the Ombudsman may conduct an administrative
investigation into the acts complained of, appears clear from the foregoing
provisions of R.A. 6770.

However, the question of whether or not the Ombudsman may conduct an

investigation over a particular act or omission is different from the question of
whether or not petitioner, after investigation, may be held administratively
liable. This distinction ought here to be kept in mind even as we must also take
note that the power to investigate is distinct from the power to suspend
preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to

preventively suspend an official subject to its administrative investigation is
provided by specific provision of law. x x x

We have previously interpreted the phrase “under his authority” to mean that
the Ombudsman can preventively suspend all officials under investigation by his
office, regardless of the branch of government in which they are employed,
excepting of course those removable by impeachment, members of Congress and
the Judiciary.

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

There can be no question in this case as to the power and authority of respondent
Deputy Ombudsman to issue an order of preventive suspension against an
official like the petitioner, to prevent that official from using his office to
intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21,
1999, p. 7, 306 SCRA 287) or to tamper with records that might be vital to the
prosecution of the case against him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495,
December 28, 1998, p. 9, 300 SCRA 494). In our view, the present controversy
simply boils down to this pivotal question: Given the purpose of preventive
suspension and the circumstances of this case, did respondent Deputy
Ombudsman commit a grave abuse of discretion when he set the period of
preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when,
among other factors, the evidence of guilt is strong. The period for which an
official may be preventively suspended must not exceed six months. In this case,
petitioner was preventively suspended and ordered to cease and desist from
holding office for the entire period of six months, which is the maximum provided
by law.

The determination of whether or not the evidence of guilt is strong as to warrant

preventive suspension rests with the Ombudsman. The discretion as regards
the period of such suspension also necessarily belongs to the Ombudsman,
except that he cannot extend the period of suspension beyond that provided by
law. But, in our view, both the strength of the evidence to warrant said
suspension and the propriety of the length or period of suspension imposed on
petitioner are properly raised in this petition for certiorari and prohibition. X x
x

Given these findings, we cannot say now that there is no evidence sufficiently
strong to justify the imposition of preventive suspension against petitioner. But
considering its purpose and the circumstances in the case brought before us, it
does appear to us that the imposition of the maximum period of six months is
unwarranted.

X x x [G]ranting that now the evidence against petitioner is already strong, even
without conceding that initially it was weak, it is clear to us that the maximum
six-month period is excessive and definitely longer than necessary for the
Ombudsman to make its legitimate case against petitioner. We must conclude
that the period during which petitioner was already preventively suspended, has
been sufficient for the lawful purpose of preventing petitioner from hiding and
destroying needed documents, or harassing and preventing witnesses who wish
to appear against him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd
Div. [Quisumbing])

Distinguish preventive suspension under the Local Government Code from

preventive suspension under the Ombudsman Act.

Held: We reach the foregoing conclusion, however, without necessarily

subscribing to petitioner’s claim that the Local Government Code, which he
averred should apply to this case of an elective local official, has been
violated. True, under said Code, preventive suspension may only be imposed
after the issues are joined, and only for a maximum period of sixty days. Here,
petitioner was suspended without having had the chance to refute first the
charges against him, and for the maximum period of six months provided by the
Ombudsman Law. But as respondents argue, administrative complaints
commenced under the Ombudsman Law are distinct from those initiated under
the Local Government Code. Respondents point out that the shorter period of
suspension under the Local Government Code is intended to limit the period of
suspension that may be imposed by a mayor, a governor, or the President, who
may be motivated by partisan political considerations. In contrast the
Ombudsman, who can impose a longer period of preventive suspension, is not
likely to be similarly motivated because it is a constitutional body. The
distinction is valid but not decisive, in our view, of whether there has been grave
abuse of discretion in a specific case of preventive suspension.

Respondents may be correct in pointing out the reason for the shorter
period of preventive suspension imposable under the Local Government
Code. Political color could taint the exercise of the power to suspend local
officials by the mayor, governor, or President’s office. In contrast the
Ombudsman, considering the constitutional origin of his Office, always ought to
be insulated from the vagaries of politics, as respondents would have us believe.

In Hagad v. Gozo-Dadole, on the matter of whether or not the

Ombudsman has been stripped of his power to investigate local elective officials
by virtue of the Local Government Code, we said:

“Indeed, there is nothing in the Local Government Code to indicate that it has
repealed, whether expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific matter in question are not so
inconsistent, let alone irreconcilable, as to compel us to only uphold one and
strike down the other.”

It was also argued in Hagad, that the six-month preventive

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

However, petitioner now contends that Hagad did not settle the
question of whether a local elective official may be preventively suspended even
before the issues could be joined. Indeed it did not, but we have held in other
cases that there could be preventive suspension even before the charges against
the official are heard, or before the official is given an opportunity to prove his
innocence. Preventive suspension is merely a preliminary step in an
administrative investigation and is not in any way the final determination of the
guilt of the official concerned.

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

Petitioner argues that before an inquiry may be converted into a full-

blown administrative investigation, the official concerned must be given 72 hours
to answer the charges against him. In his case, petitioner says the inquiry was
converted into an administrative investigation without him being given the
required number of hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72
hours to submit a written answer to the complaint against him. This, however,
does not make invalid the preventive suspension order issued against him. As
we have earlier stated, a preventive suspension order may be issued even before
the charges against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his
counter-affidavit to the complaint filed by respondent Tagaan. We find this 10-
day period is in keeping with Section 5[a] of the Rules of Procedure of the Office
of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999,
2nd Div. [Quisumbing])
Does Section 13, Republic Act No. 3019 exclude from its coverage the
members of Congress and, therefore, the Sandiganbayan erred in
decreeing the preventive suspension order against Senator Miriam
Defensor-Santiago? Will the order of suspension prescribed by Republic
Act No. 3019 not encroach on the power of Congress to discipline its own
ranks under the Constitution?

Held: The petition assails the authority of the Sandiganbayan to

decree a ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a
Senator of the Republic of the Philippines, from any government position, and
furnishing a copy thereof to the Senate of the Philippines for the implementation
of the suspension order.

The authority of the Sandiganbayan to order the preventive

suspension of an incumbent public official charged with violation of the
provisions of Republic Act No. 3019 has both legal and jurisprudential
support. X x x

In the relatively recent case of Segovia v. Sandiganbayan, the Court

reiterated:

“The validity of Section 13, R.A. 3019, as amended – treating of the suspension
pendente lite of an accused public officer – may no longer be put at issue, having
been repeatedly upheld by this Court.

“The provision of suspension pendente lite applies to all persons indicted upon a
valid information under the Act, whether they be appointive or elective officials;
or permanent or temporary employees, or pertaining to the career or non-career
service.” (At pp. 336-337)

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

of suspension upon determination of the validity of the information filed before
it. Once the information is found to be sufficient in form and substance, the
court is bound to issue an order of suspension as a matter of course, and there
seems to be “no ifs and buts about it.” Explaining the nature of the preventive
suspension, the Court in the case of Bayot v. Sandiganbayan:

“x x x It is not a penalty because it is not imposed as a result of judicial

proceedings. In fact, if acquitted, the official concerned shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during
suspension.”

In issuing the preventive suspension of petitioner, the Sandiganbayan merely

adhered to the clear and unequivocal mandate of the law, as well as the
jurisprudence in which the Court has, more than once, upheld Sandiganbayan’s
authority to decree the suspension of public officials and employees indicted
before it.
Section 13 of Republic Act No. 3019 does not state that the public officer
concerned must be suspended only in the office where he is alleged to have
committed the acts with which he has been charged. Thus, it has been held that
the use of the word “office” would indicate that it applies to any office which the
officer charged may be holding, and not only the particular office under which he
stands accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan,
supra.)

En passant, while the imposition of suspension is not automatic or self-operative

as the validity of the information must be determined in a pre-suspension
hearing, there is no hard and fast rule as to the conduct thereof. It has been
said that –

“ ‘x x x No specific rules need be laid down for such pre-suspension

hearing. Suffice it to state that the accused should be given a fair and adequate
opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS
against him, e.g., that he has not been afforded the right of due preliminary
investigation; that the acts for which he stands charged do not constitute a
violation of the provisions of Republic Act 3019 or the bribery provisions of the
Revised Penal Code which would warrant his mandatory suspension from office
under Section 13 of the Act; or he may present a motion to quash the information
on any of the grounds provided for in Rule 117 of the Rules of Court x x x.’

“Likewise, he is accorded the right to challenge the propriety of his prosecution

on the ground that the acts for which he is charged do not constitute a violation
of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and
the right to present a motion to quash the information on any other grounds
provided in Rule 117 of the Rules of Court.

“However, a challenge to the validity of the criminal proceedings on the ground

that the acts for which the accused is charged do not constitute a violation of
the provisions of Rep. Act No. 3019, or of the provisions on bribery of the Revised
Penal Code, should be treated only in the same manner as a challenge to the
criminal proceeding by way of a motion to quash on the ground provided in
Paragraph (a), Section 2 of Rule 117 of the Rules of Court, i.e., that the facts
charged do not constitute an offense. In other words, a resolution of the
challenge to the validity of the criminal proceeding, on such ground, should be
limited to an inquiry whether the facts alleged in the information, if
hypothetically admitted, constitute the elements of an offense punishable under
Rep. Act 3019 or the provisions on bribery of the Revised Penal Code.” (Luciano
v. Mariano, 40 SCRA 187 [1971]; People v. Albano, 163 SCRA 511, 517-519 [1988])

The law does not require that the guilt of the accused must
be established in a pre-suspension proceeding before trial on the merits
proceeds. Neither does it contemplate a proceeding to determine (1) the strength
of the evidence of culpability against him, (2) the gravity of the offense charged,
or (3) whether or not his continuance in office could influence the witnesses or
pose a threat to the safety and integrity of the records and other evidence before
the court could have a valid basis in decreeing preventive suspension pending
the trial of the case. All it secures to the accused is adequate opportunity to
challenge the validity or regularity of the proceedings against him, such as, that
he has not been afforded the right to due preliminary investigation, that the acts
imputed to him do not constitute a specific crime warranting his mandatory
suspension from office under Section 13 of Republic Act No. 3019, or that the
information is subject to quashal on any of the grounds set out in Section 3,
Rule 117, of the Revised Rules on Criminal Procedure.

The pronouncement, upholding the validity of the information filed

against petitioner, behooved Sandiganbayan to discharge its mandated duty to
forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is

distinct from the power of Congress to discipline its own ranks under the
Constitution which provides that each –

“x x x house may determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds of all its Members,
suspend or expel a Member. A penalty of suspension, when imposed, shall not
exceed sixty days.” (Section 16[3], Article VI, 1987 Constitution)

The suspension contemplated in the above constitutional provision is

a punitive measure that is imposed upon determination by the Senate or the
House of Representatives, as the case may be, upon an erring member. Thus,
in its resolution in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al., the
Court affirmed the order of suspension of Congressman Paredes by the
Sandiganbayan, despite his protestations on the encroachment by the court on
the prerogatives of Congress. The Court ruled:

“x x x Petitioner’s invocation of Section 16 (3), Article VI of the Constitution –

which deals with the power of each House of Congress inter alia to ‘punish its
Members for disorderly behavior,’ and ‘suspend or expel a Member’ by a vote of
two-thirds of all its Members subject to the qualification that the penalty of
suspension, when imposed, should not exceed sixty days – in unavailing, as it
appears to be quite distinct from the suspension spoken of in Section 13 of RA
3019, which is not a penalty but a preliminary, preventive measure, prescinding
from the fact that the latter is not being imposed on petitioner for misbehavior
as a Member of the House of Representatives.”

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

effectively excluded Members of Congress from Republic Act No. 3019 nor from
its sanctions. The maxim simply recognizes each of the three co-equal and
independent, albeit coordinate, branches of the government – the Legislative, the
Executive and the Judiciary – has exclusive prerogatives and cognizance within
its own sphere of influence and effectively prevents one branch from unduly
intruding into the internal affairs of either branch.

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

1987 Constitution, empowers the Court to act not only in the settlement of
“actual controversies involving rights which are legally demandable and
enforceable,” but also in the determination of “whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the government.” The provision allowing the
Court to look into any possible grave abuse of discretion committed by any
government instrumentality has evidently been couched in general terms in
order to make it malleable to judicial interpretation in the light of any emerging
milieu. In its normal concept, the term has been said to imply an arbitrary,
despotic, capricious or whimsical exercise of judgment amounting to lack or
excess of jurisdiction. When the question, however, pertains to an affair internal
to either of Congress or the Executive, the Court subscribes to the view that
unless an infringement of any specific Constitutional proscription thereby inheres
the Court should not deign substitute its own judgment over that of any of the other
two branches of government. It is an impairment or a clear disregard of a specific
constitutional precept or provision that can unbolt the steel door for judicial
intervention. If any part of the Constitution is not, or ceases to be, responsive
to contemporary needs, it is the people, not the Court, who must promptly react
in the manner prescribed by the Charter itself.

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

Attention might be called to the fact that Criminal Case No. 16698 has been
decided by the First Division of the Sandiganbayan on 06 December 1999,
acquitting herein petitioner. The Court, nevertheless, deems it appropriate to
render this decision for future guidance on the significant issue raised by
petitioner. (Santiago v. Sandiganbayan, 356 SCRA 636, April 18, 2001, En
Banc [Vitug])

May an elective public official be validly appointed or designated to any

public office or position during his tenure?

Ans.: No elective official shall be eligible for appointment or designation in any

capacity to any public office or position during his tenure. (Sec. 7, 1st par., Art.
IX-B, 1987 Constitution)

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

 Ans.: Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation. (Sec. 7, 2nd par., Art. IX-B, 1987
Constitution)

May the President, Vice-President, Members of the Cabinet, their deputies

or assistants hold any other office or employment?

Ans.: The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. (Sec. 13, Art. VII,
1987 Constitution)

Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar
as Cabinet members, their deputies or assistants are concerned admit of the
broad exceptions made for appointive officials in general under Section 7, par.
(2), Article IX-B?

Held: The threshold question therefore is: does the prohibition in

Section 13, Article VII of the 1987 Constitution insofar as Cabinet members,
their deputies or assistants are concerned admit of the broad exceptions made
for appointive officials in general under Section 7, par. (2), Article IX-B which,
for easy reference is quoted anew, thus: “Unless otherwise allowed by law or by
the primary functions of his position, no appointive official shall hold any other
office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation
or their subsidiaries.”

We rule in the negative.

The practice of designating members of the Cabinet, their deputies

and assistants as members of the governing bodies or boards of various
government agencies and instrumentalities, including government-owned and
controlled corporations, became prevalent during the time legislative powers in
this country were exercised by former President Ferdinand E. Marcos pursuant
to his martial law authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations created by
presidential decrees and other modes of presidential issuances where Cabinet
members, their deputies or assistants were designated to head or sit as members
of the board with the corresponding salaries, emoluments, per diems, allowances
and other perquisites of office. X x x

This practice of holding multiple offices or positions in the

government soon led to abuses by unscrupulous public officials who took
advantage of this scheme for purposes of self-enrichment. X x x
 Particularly odious and revolting to the people’s sense of propriety
and morality in government service were the data contained therein that Roberto
v. Ongpin was a member of the governing boards of twenty-nine (29)
governmental agencies, instrumentalities and corporations; Imelda R. Marcos of
twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of
fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14);
Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono of twelve
(12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven
(11) each; and Lilia Bautista and Teodoro Q. Pena of ten (10) each.

The blatant betrayal of public trust evolved into one of the serious
causes of discontent with the Marcos regime. It was therefore quite inevitable
and in consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution
the provisions under consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple governmental offices and
employment. X x x

But what is indeed significant is the fact that although Section 7,

Article IX-B already contains a blanket prohibition against the holding of
multiple offices or employment in the government subsuming both elective and
appointive public officials, the Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants
from holding any other office or employment during their tenure, unless
otherwise provided in the Constitution itself.

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

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

Moreover, such intent is underscored by a comparison of Section 13,

Article VII with other provisions of the Constitution on the disqualifications of
certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, “[N]o Senator or Member of the House
of Representatives may hold any other office or employment in the Government x
x x.” Under section 5(4), Article XVI, “[N]o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a civilian
position in the Government, including government-owned or controlled
corporations or any of their subsidiaries.” Even Section 7(2), Article IX-B, relied
upon by respondents provides “[U]nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office
or employment in the Government.”
 It is quite notable that in all these provisions on disqualifications to
hold other office or employment, the prohibition pertains to an office or
employment in the government and government-owned or controlled corporations
or their subsidiaries. In striking contrast is the wording of Section 13, Article
VII which states that “[T]he President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their tenure.” In
the latter provision, the disqualification is absolute, not being qualified by the
phrase “in the Government.” The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and private office
or employment.

Going further into Section 13, Article VII, the second sentence
provides: “They shall not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government
or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.” These sweeping, all-
embracing prohibitions imposed on the President and his official family, which
prohibitions are not similarly imposed on other public officials or employees such
as the Members of Congress, members of the civil service in general and
members of the armed forces, are proof of the intent of the 1987 Constitution to
treat the President and his official family as a class by itself and to impose upon
said class stricter prohibitions.

Thus, while all other appointive officials in the civil service are allowed
to hold other office or employment in the government during their tenure when
such is allowed by law or by the primary functions of their positions, members
of the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is
meant to lay down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the Cabinet,
their deputies and assistants.

This being the case, the qualifying phrase “unless otherwise provided
in this Constitution” in Section 13, Article VII cannot possibly refer to the broad
exceptions provided under Section 7, Article IX-B of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us to do, would
render nugatory and meaningless the manifest intent and purpose of the framers
of the Constitution to impose a stricter prohibition on the President, Vice-
President, Members of the Cabinet, their deputies and assistants with respect to
holding other offices or employment in the government during their
tenure. Respondents’ interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the
high-ranking officials of the Executive Branch from the President to assistant
Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their tenure.

Moreover, respondents’ reading of the provisions in question would

render certain parts of the Constitution inoperative. This observation applies
particularly to the Vice-President who, under Section 13 of Article VII is allowed
to hold other office or employment when so authorized by the Constitution, but
who as an elective public official under Sec. 7, par. (1) of Article IX-B is absolutely
ineligible “for appointment or designation in any capacity to any public office or
position during his tenure.” Surely, to say that the phrase “unless otherwise
provided in this Constitution” found in Section 13, Article VII has reference to
Section 7, par. (1) of Article IX-B would render meaningless the specific
provisions of the Constitution authorizing the Vice-President to become a
member of the Cabinet (Sec. 3, Ibid.), and to act as President without
relinquishing the Vice-Presidency where the President shall not have been
chosen or fails to qualify (Sec. 7, Article VII). Such absurd consequence can be
avoided only by interpreting the two provisions under consideration as one, i.e.,
Section 7, par. (1) of Article IX-B providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In the same manner
must Section 7, par. (2) of Article IX-B be construed vis-à-vis Section 13, Article
VII.

Since the evident purpose of the framers of the 1987 Constitution is

to impose a stricter prohibition on the President, Vice-President, members of the
Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section
13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple government
offices and employment. Verily, wherever the language used in the constitution
is prohibitory, it is to be understood as intended to be a positive and unequivocal
negation (Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App.
396, 3 S.W. 233). The phrase “unless otherwise provided in this Constitution”
must be given a literal interpretation to refer only to those particular instances
cited in the Constitution itself, to wit: the Vice-President being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.

It being clear x x x that the 1987 Constitution seeks to prohibit the

President, Vice-President, members of the Cabinet, their deputies or assistants
from holding during their tenure multiple offices or employment in the
government, except in those cases specified in the Constitution itself and as
above clarified with respect to posts held without additional compensation in an
ex-officio capacity as provided by law and as required by the primary functions
of their office, the citation of Cabinet members (then called Ministers) as
examples during the debate and deliberation on the general rule laid down for
all appointive officials should be considered as mere personal opinions which
cannot override the constitution’s manifest intent and the people’s
understanding thereof.

In the light of the construction given to Section 13, Article VII in

relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive
Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting
the number of positions that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not more than two
(2) positions in the government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise provided in the
1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences

that will result from a strict application of the prohibition mandated under
Section 13, Article VII on the operations of the Government, considering that
Cabinet members would be stripped of their offices held in an ex-officio capacity,
by reason of their primary positions or by virtue of legislation. As earlier clarified
in this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary
functions of his office do not fall under the definition of “any other office” within
the contemplation of the constitutional prohibition. With respect to other offices
or employment held by virtue of legislation, including chairmanships or
directorships in government-owned or controlled corporations and their
subsidiaries, suffice it to say that the feared impractical consequences are more
apparent than real. Being head of an executive department is no mean job. It
is more than a full-time job, requiring full attention, specialized knowledge, skills
and expertise. If maximum benefits are to be derived from a department head’s
ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions and responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of
our national and economic development, far outweigh the benefits, if any, that
may be gained from a department head spreading himself too thin and taking in
more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm,

the Court hereby orders respondents x x x to immediately relinquish their
other offices or employment, as herein defined, in the government,
including government-owned or controlled corporations and their
subsidiaries. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317,
Feb. 22, 1991, En Banc [Fernan, CJ])

Does the prohibition against holding dual or multiple offices or

employment under Section 13, Article VII of the Constitution apply to posts
occupied by the Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by law and as required
by the primary functions of said officials’ office?

Held: The prohibition against holding dual or multiple offices or

employment under Section 13, Article VII of the Constitution must not, however,
be construed as applying to posts occupied by the Executive officials specified
therein without additional compensation in an ex-officio capacity as provided by
law and as required (As opposed to the term “allowed” used in Section 7, par. (2),
Article IX-B of the Constitution, which is permissive. “Required” suggests an
imposition, and therefore, obligatory in nature) by the primary functions of said
officials’ office. The reason is that these posts do not comprise “any other office”
within the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. To characterize
these posts otherwise would lead to absurd consequences, among which are: The
President of the Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115. Neither can the Vice-President, the
Executive Secretary, and the Secretaries of National Defense, Justice, Labor and
Employment and Local Government sit in this Council, which would then have
no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.

Indeed, the framers of our Constitution could not have intended such
absurd consequences. A Constitution, viewed as a continuously operative
charter of government, is not to be interpreted as demanding the impossible or
the impracticable; and unreasonable or absurd consequences, if possible, should
be avoided.

To reiterate, the prohibition under Section 13, Article VII is not to be

interpreted as covering positions held without additional compensation in ex-
officio capacities as provided by law and as required by the primary functions of
the concerned official’s office. The term ex-officio means “from office; by virtue
of office.” It refers to an “authority derived from official character merely, not
expressly conferred upon the individual character, but rather annexed to the
official position.” Ex officio likewise denotes an “act done in an official character,
or as a consequence of office, and without any other appointment or authority
than that conferred by the office.” An ex-officio member of a board is one who is
a member by virtue of his title to a certain office, and without further warrant or
appointment. To illustrate, by express provision of law, the Secretary of
Transportation and Communications is the ex-officio Chairman of the Board of
the Philippine Ports Authority (Sec. 7, E.O. 778), and the Light Rail Transit
Authority (Sec. 1, E.O. 210).
 The Court had occasion to explain the meaning of an ex-officio
position in Rafael v. Embroidery and Apparel Control and Inspection Board, thus:
“An examination of Section 2 of the questioned statute (R.A. 3137) reveals that
for the chairman and members of the Board to qualify they need only be
designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. I order to be designated
they must already be holding positions in the offices mentioned in the law. Thus,
for instance, one who does not hold a previous appointment in the Bureau of
Customs, cannot, under the act, be designated a representative from that
office. The same is true with respect to the representatives from the other
offices. No new appointments are necessary. This is as it should be, because
the representatives so designated merely perform duties in the Board in addition
to those already performed under their original appointments.”

The term “primary” used to describe “functions” refers to the order of

importance and thus means chief or principal function. The term is not
restricted to the singular but may refer to the plural (33A Words and Phrases, p.
210). The additional duties must not only be closely related to, but must be
required by the official’s primary functions. Examples of designations to
positions by virtue of one’s primary functions are the Secretaries of Finance and
Budget sitting as members of the Monetary Board, and the Secretary of
Transportation and Communications acting as Chairman of the Maritime
Industry Authority and the Civil Aeronautics Board.

If the functions to be performed are merely incidental, remotely

related, inconsistent, incompatible, or otherwise alien to the primary function of
a cabinet official, such additional functions would fall under the purview of “any
other office” prohibited by the Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the Philippine Amusement
and Gaming Corporation. The same rule applies to such positions which confer
on the cabinet official management functions and/or monetary compensation,
such as but not limited to chairmanships or directorships in government-owned
or controlled corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-

President, Cabinet Members, their deputies or assistants which are not
inconsistent with those already prescribed by their offices or appointments by
virtue of their special knowledge, expertise and skill in their respective executive
offices is a practice long-recognized in many jurisdictions. It is a practice
justified by the demands of efficiency, policy direction, continuity and
coordination among the different offices in the Executive Branch in the discharge
of its multifarious tasks of executing and implementing laws affecting national
interest and general welfare and delivering basic services to the people. It is
consistent with the power vested on the President and his alter egos, the Cabinet
members, to have control of all the executive departments, bureaus and offices
and to ensure that the laws are faithfully executed. Without these additional
duties and functions being assigned to the President and his official family to sit
in the governing bodies or boards of governmental agencies or instrumentalities
in an ex-officio capacity as provided by law and as required by their primary
functions, they would be deprived of the means for control and supervision,
thereby resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or

functions may not transgress the prohibition embodied in Section 13, Article VII
of the 1987 Constitution, such additional duties or functions must be required
by the primary functions of the official concerned, who is to perform the same in
an ex-officio capacity as provided by law, without receiving any additional
compensation therefor.

The ex-officio position being actually and in legal contemplation part

of the principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached to
his principal office. It should be obvious that if, say, the Secretary of Finance
attends a meeting of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is
not entitled to collect any extra compensation, whether it be in the form of a per
diem or an honorarium or an allowance, or some other such euphemism. By
whatever name it is designated, such additional compensation is prohibited by
the Constitution. (Civil Liberties Union v. Executive Secretary, 194 SCRA
317, Feb. 22, 1991, En Banc [Fernan, CJ])

Should members of the Cabinet appointed to other positions in the

government pursuant to Executive Order No. 284 which later was declared
unconstitutional by the SC for being violative of Section 13, Article VII of
the Constitution be made to reimburse the government for whatever pay
and emoluments they received from holding such other positions?

Held: During their tenure in the questioned positions, respondents

may be considered de facto officers and as such entitled to emoluments for actual
services rendered. It has been held that “in cases where there is no de jure
officer, a de facto officer, who, in good faith has had possession of the office and
has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed from
all liability to pay any one for such services. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in
the questioned positions may therefore be retained by them. (Civil Liberties
Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc
[Fernan, CJ])
May a Senator or Congressman hold any other office or employment?

Ans.: No Senator or Member of the House of Representatives may

hold any other office or employment in the government, or any subdivision,
agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, during his term without forfeiting his
seat. Neither shall he be appointed to any office which may have been created
or the emoluments thereof increased during the term for which he was
elected. (Sec. 13, Art. VI, 1987 Constitution).

What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an

appointment is issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office; and

d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations,
it is immaterial who the appointing or recommending authority is. To constitute
a violation of the law, it suffices that an appointment is extended or issued in
favor of a relative within the third civil degree of consanguinity or affinity of the
chief of the bureau or office, or the person exercising immediate supervision over
the appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999,
En Banc [Pardo])

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

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

The rules on nepotism shall likewise not be applicable to the case of

a member of any family who, after his or her appointment to any position in an
office or bureau, contracts marriage with someone in the same office or bureau,
in which event the employment or retention therein of both husband and wife
may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

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

pending criminal cases?

Held: 1. A public official cannot be removed for administrative misconduct

committed during a prior term, since his re-election to office operates as a
condonation of the officer’s previous misconduct to the extent of cutting off the
right to remove him therefor. The foregoing rule, however, finds no application
to criminal cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA
768, 773 [1992])

2. A reelected local official may not be held administratively accountable for

misconduct committed during his prior term of office. The rationale for this
holding is that when the electorate put him back into office, it is presumed that
it did so with full knowledge of his life and character, including his past
misconduct. If, armed with such knowledge, it still reelects him, then such
reelection is considered a condonation of his past misdeeds. (Mayor Alvin B.
Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999
[Quisumbing])

What is the Doctrine of Condonation? Illustrative case.

Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos, his
reelection has rendered the administrative case filed against him moot and
academic. This is because his reelection operates as a condonation by the
electorate of the misconduct committed by an elective official during his previous
term. Petitioner further cites the ruling of this Court in Pascual v. Hon. Provincial
Board of Nueva Ecija, citing Conant v. Brogan, that

“x x x When the people have elected a man to office, it must be assumed that
they did this with knowledge of his life and character, and that they disregarded
or forgave his faults or misconduct, if he had been guilty of any. It is not for the
court, by reason of such faults or misconduct to practically overrule the will of
the people.”

Respondents, on the other hand, contend that while the contract in question was
signed during the previous term of petitioner, it was to commence or be effective
only on September 1998 or during his current term. It is the respondents’
submission that petitioner “went beyond the protective confines” of
jurisprudence when he “agreed to extend his act to his current term of
office.” Aguinaldo cannot apply, according to respondents, because what is
involved in this case is a misconduct committed during a previous term but to
be effective during the current term.

Respondents maintain that,

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

Hence, petitioner cannot take refuge in the fact of his reelection,

according to respondents.

Further, respondents point out that the contract in question was

signed just four days before the date of the 1998 election and so it could not be
presumed that when the people of Cebu City voted petitioner to office, they did
so with full knowledge of petitioner’s character.

On this point, petitioner responds that knowledge of an official’s

previous acts is presumed and the court need not inquire whether, in reelecting
him, the electorate was actually aware of his prior misdeeds.

Petitioner cites our ruling in Salalima v. Guingona, wherein we

absolved Albay governor Ramon R. Salalima of his administrative liability as
regards a retainer agreement he signed in favor of a law firm during his previous
term, although disbursements of public funds to cover payments under the
agreement were still being done during his subsequent term. Petitioner argues
that, following Salalima, the doctrine of Aguinaldo applies even where the effects
of the acts complained of are still evident during the subsequent term of the
reelected official. The implementation of the contract is a mere incident of its
execution. Besides, according to petitioner, the “sole act” for which he has been
administratively charged is the signing of the contract with F.E. Zuellig. The
charge, in his view, excludes the contract’s execution or implementation, or any
act subsequent to the perfection of the contract.

In Salalima, we recall that the Solicitor General maintained that

Aguinaldo did not apply to that case because the administrative case against
Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his
certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the
Court applied the Aguinaldo doctrine, even if the administrative case against
Governor Salalima was filed after his reelection.

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

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

In a number of cases, we have repeatedly held that a reelected local

official may not be held administratively accountable for misconduct committed
during his prior term of office. The rationale for this holding is that when the
electorate put him back into office, it is resumed that it did so with full knowledge
of his life and character, including his past misconduct. If, armed with such
knowledge, it still reelects him, then such reelection is considered a condonation
of his past misdeeds.

However, in the present case, respondents point out that the contract
entered into by petitioner with F.E. Zuellig was signed just four days before the
date of the elections. It was not made an issue during the election, and so the
electorate could not be said to have voted for petitioner with knowledge of this
particular aspect of his life and character.

For his part, petitioner contends that “the only conclusive

determining factor” as regards the people’s thinking on the matter is an
election. On this point we agree with petitioner. That the people voted for an
official with knowledge of his character is presumed, precisely to eliminate the
need to determine, in factual terms, the extent of this knowledge. Such an
undertaking will obviously be impossible. Our rulings on the matter do not
distinguish the precise timing or period when the misconduct was committed,
reckoned from the date of the official’s reelection, except that it must be prior to
said date.

As held in Salalima,

“The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are
concerned, is still a good law. Such a rule is not only founded on the theory that
an official’s reelection expresses the sovereign will of the electorate to forgive or
condone any act or omission constituting a ground for administrative discipline
which was committed during his previous term. We may add that sound policy
dictates it. To rule otherwise would open the floodgates to exacerbating endless
partisan contests between the reelected official and his political enemies, who may
not stop to hound the former during his new term with administrative cases for
acts alleged to have been committed during his previous term. His second term
may thus be devoted to defending himself in the said cases to the detriment of
public service x x x.”

The above ruling in Salalima applies to this case. Petitioner cannot anymore be
held administratively liable for an act done during his previous term, that is, his
signing of the contract with F.E. Zuellig.

The assailed retainer agreement in Salalima was executed sometime

in 1990. Governor Salalima was reelected in 1992 and payments for the retainer
continued to be made during his succeeding term. This situation is no different
from the one in the present case, wherein deliveries of the asphalt under the
contract with F.E. Zuellig and the payments therefor were supposed to have
commenced on September 1998, during petitioner’s second term.

However, respondents argue that the contract, although signed on

May 7, 1998, during petitioner’s prior term, is to be made effective only during
his present term.

We fail to see any difference to justify a valid distinction in the

result. The agreement between petitioner (representing Cebu City) and F.E.
Zuellig was perfected on the date the contract was signed, during petitioner’s
prior term. At that moment, petitioner already acceded to the terms of the
contract, including stipulations now alleged to be prejudicial to the city
government. Thus, any culpability petitioner may have in signing the contract
already became extant on the day the contract was signed. It hardly matters
that the deliveries under the contract are supposed to have been made months
later.

While petitioner can no longer be held administratively liable for

signing the contract with F.E. Zuellig, however, this should not prejudice the
filing of any case other than administrative against petitioner. Our ruling in this
case, may not be taken to mean the total exoneration of petitioner for whatever
wrongdoing, if any, might have been committed in signing the subject
contract. The ruling now is limited to the question of whether or not he may be
held administratively liable therefor, and it is our considered view that he may
not. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div.
[Quisumbing])

Petitioner claims that Benipayo has no authority to remove her as Director

IV of the EID and reassign her to the Law Department. Petitioner further
argues that only the COMELEC, acting as a collegial body, can authorize
such reappointment. Moreover, petitioner maintains that a reassignment
without her consent amounts to removal from office without due process
and therefore illegal.

Held: Petitioner’s posturing will hold water if Benipayo does not

possess any color of title to the office of Chairman of the COMELEC. We have
ruled, however, that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the powers of that office for so
long as his ad interim appointment remains effective. X x x. The Chairman, as
the Chief Executive of the COMELEC, is expressly empowered on his own
authority to transfer or reassign COMELEC personnel in accordance with the
Civil Service Law. In the exercise of this power, the Chairman is not required by
law to secure the approval of the COMELEC en banc.
 Petitioner’s appointment papers x x x indisputably show that she held
her Director IV position in the EID only in an acting or temporary
capacity. Petitioner is not a Career Executive Service (CES), and neither does
she hold Career Executive Service Eligibility, which are necessary qualifications
for holding the position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service Commission. Obviously,
petitioner does not enjoy security of tenure as Director IV. X x x

Having been appointed merely in a temporary or acting capacity, and

not possessed of the necessary qualifications to hold the position of Director IV,
petitioner has no legal basis in claiming that her reassignment was contrary to
the Civil Service Law. X x x

Still, petitioner assails her reassignment, carried out during the election period,
as a prohibited act under Section 261 (h) of the Omnibus Election Code x x x.

Petitioner claims that Benipayo failed to secure the approval of the COMELEC
en banc to effect transfers or reassignments of COMELEC personnel during the
election period. Moreover, petitioner insists that the COMELEC en banc must
concur to every transfer or reassignment of COMELEC personnel during the
election period.

Contrary to petitioner’s allegation, the COMELEC did in fact issue COMELEC

Resolution No. 3300 dated November 6, 2000, exempting the COMELEC from
Section 261 (h) of the Omnibus Election Code. X x x

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing
before any transfer or reassignment can be made within thirty days prior to
election day, refers only to COMELEC field personnel and not to head office
personnel like the petitioner. Under the Revised Administrative Code, the
COMELEC Chairman is the sole officer specifically vested with the power to
transfer or reassign COMELEC personnel. The COMELEC Chairman will
logically exercise the authority to transfer or reassign COMELEC personnel
pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot
arrogate unto itself this power because that will mean amending the Revised
Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or
reassignment of COMELEC personnel should carry the concurrence of the
COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such
concurrence will render the resolution meaningless since the COMELEC en banc
will have to approve every personnel transfer or reassignment, making the
resolution utterly useless. Resolution No. 3300 should be interpreted for what
it is, an approval to effect transfers and reassignments of personnel, without
need of securing a second approval from the COMELEC en banc to actually
implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer
or reassign COMELEC personnel. The person holding that office, in a de jure
capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No.
3300, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayo’s order reassigning petitioner from the EID to
the Law Department does not violate Section 261 (h) of the Omnibus Election
Code. For the same reason, Benipayo’s order designating Cinco Officer-in-
Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49,
April 2, 2002, En Banc [Carpio])

May the appointment of a person assuming a position in the civil service

under a completed appointment be validly recalled or revoked?

Held: It has been held that upon the issuance of an appointment and the
appointee’s assumption of the position in the civil service, “he acquires a legal
right which cannot be taken away either by revocation of the appointment or by
removal except for cause and with previous notice and hearing.” Moreover, it is
well-settled that the person assuming a position in the civil service under a
completed appointment acquires a legal, not just an equitable, right to the
position. This right is protected not only by statute, but by the Constitution as
well, which right cannot be taken away by either revocation of the appointment,
or by removal, unless there is valid cause to do so, provided that there is previous
notice and hearing.

Petitioner admits that his very first official act upon assuming the position of
town mayor was to issue Office Order No. 95-01 which recalled the appointments
of the private respondents. There was no previous notice, much less a hearing
accorded to the latter. Clearly, it was petitioner who acted in undue haste to
remove the private respondents without regard for the simple requirements of
due process of law. While he argues that the appointing power has the sole
authority to revoke said appointments, there is no debate that he does not have
blanket authority to do so. Neither can he question the CSC’s jurisdiction to
affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised

Administrative Code specifically provides that “an appointment accepted by the
appointee cannot be withdrawn or revoked by the appointing authority and shall
remain in force and in effect until disapproved by the Commission.” Thus, it is
the CSC that is authorized to recall an appointment initially approved, but only
when such appointment and approval are proven to be in disregard of applicable
provisions of the civil service law and regulations.

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules
shall take effect immediately upon its issuance by the appointing authority, and
if the appointee has assumed the duties of the position, he shall be entitled to
receive his salary at once without awaiting the approval of his appointment by
the Commission. The appointment shall remain effective until disapproved by
the Commission. In no case shall an appointment take effect earlier than the
date of its issuance.

Section 20 of Rule VI also provides:

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

Non-compliance with the procedures/criteria provided in the agency’s Merit

Promotion Plan;

Failure to pass through the agency’s Selection/Promotion Board;

Violation of the existing collective agreement between management and

employees relative to promotion; or

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

Accordingly, the appointments of the private respondents may only be recalled

on the above-cited grounds. And yet, the only reason advanced by the petitioner
to justify the recall was that these were “midnight appointments.” The CSC
correctly ruled, however, that the constitutional prohibition on so-called
“midnight appointments,” specifically those made within two (2) months
immediately prior to the next presidential elections, applies only to the President
or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94, Feb. 28, 2001,
En Banc [Ynares-Santiago])

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

Held: EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the
City Government of Makati City. With her meager income she was the lone
provider for her children. But her simple life was disrupted abruptly when she
was arrested without warrant and detained for more than three (3) years for a
crime she did not commit. Throughout her ordeal she trusted the city
government that the suspension imposed on her was only until the final
disposition of her case. As she drew near her vindication she never did expect
the worst to come to her. On the third year of her detention the city government
lifted her suspension, dropped her from the rolls without prior notice and
without her knowledge, much less gave her an opportunity to forthwith correct
the omission of an application for leave of absence belatedly laid on her.

Upon her acquittal for lack of evidence and her release from detention
she was denied reinstatement to her position. She was forced to seek recourse
in the Civil Service Commission which ordered her immediate reinstatement with
back wages from 19 October 1994, the date when she presented herself for
reassumption of duties but was turned back by the city government, up to the
time of her actual reinstatement.

Plainly, the case of petitioner City Government of Makati City revolves

around a rotunda of doubt, a dilemma concerning the legal status and
implications of its suspension of private respondent Eusebia R. Galzote and the
automatic leave of absence espoused by the Civil Service Commission. Against
this concern is the punctilious adherence to technicality, the requirement that
private respondent should have filed an application for leave of absence in proper
form. The instant case is therefore a dispute between, at its worst, private
respondent’s substantial compliance with the standing rules, and the City
Government’s insistence that the lowly clerk should have still gone through the
formalities of applying for leave despite her detention, of which petitioner had
actual notice, and the suspension order couched in simple language that she was
being suspended until the final disposition of her criminal case.

The meaning of suspension until the final disposition of her case is

that should her case be dismissed she should be reinstated to her position with
payment of back wages. She did not have to apply for leave of absence since she
was already suspended by her employer until her case would be terminated. We
have done justice to the workingman in the past; today we will do no less by
resolving all doubts in favor of the humble employee in faithful obeisance to the
constitutional mandate to afford full protection to labor (Const., Art. XIII, Sec. 3,
par. 1; Art. II, Sec. 18)

As may be gleaned from the pleadings of the parties, the issues are:
(1) whether private respondent Eusebia R. Galzote may be considered absent
without leave; (b) whether due process had been observed before she was
dropped from the rolls; and, (3) whether she may be deemed to have abandoned
her position, hence, not entitled to reinstatement with back salaries for not
having filed a formal application for leave. Encapsulated, the issues may be
reduced to whether private respondent may be considered absent without leave
or whether she abandoned her job as to justify being dropped from the service
for not filing a formal application for leave.

Petitioner would have private respondent declared on AWOL and

faults her for failing to file an application for leave of absence under Secs. 20
(Now Sec. 52 of Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27
December 1991, as amended by CSC MC No. 41, s. 1998) and 35 (Now Sec. 63
of Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27 December 1991, as
amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999) of the CSC Rules and
rejects the CSC’s ruling of an “automatic leave of absence for the period of her
detention” since the “current Civil Service Law and Rules do not contain any
specific provision on automatic leave of absence.”

The Court believes that private respondent cannot be faulted for

failing to file prior to her detention an application for leave and obtain approval
thereof. The records clearly show that she had been advised three (3) days after
her arrest, or on 9 September 1991, that petitioner City government of Makati
City had placed her under suspension until the final disposition of her criminal
case. This act of petitioner indubitably recognized private respondent’s
predicament and thus allowed her to forego reporting for work during the
pendency of her criminal case without the needless exercise of strict
formalities. At the very least, this official communication should be taken as an
equivalent of a prior approved leave of absence since it was her employer itself
which placed her under suspension and thus excused her from further
formalities in applying for such leave. Moreover, the arrangement bound the City
Government to allow private respondent to return to her work after the termination
of her case, i.e., if acquitted of the criminal charge. This pledge sufficiently served
as legitimate reason for her to altogether dispense with the formal application for
leave; there was no reason to, as in fact it was not required, since she was for all
practical purposes incapacitated or disabled to do so.

Indeed, private respondent did not have the least intention to go on AWOL from
her post as Clerk III of petitioner, for AWOL means the employee leaving or
abandoning his post without justifiable reason and without notifying his
employer. In the instant case, private respondent had a valid reason for failing
to report for work as she was detained without bail. Hence, right after her release
from detention, and when finally able to do so, she presented herself to the
Municipal Personnel Officer of petitioner City Government to report for
work. Certainly, had she been told that it was still necessary for her to file an
application for leave despite the 9 September 1991 assurance from petitioner,
private respondent would have lost no time in filing such piece of document. But
the situation momentarily suspending her from work persisted: petitioner City
Government did not alter the modus vivendi with private respondent and lulled
her into believing that its commitment that her suspension was only until the
termination of her case was true and reliable. Under the circumstances private
respondent was in, prudence would have dictated petitioner, more particularly
the incumbent city executive, in patria potestas, to advise her that it was still
necessary – although indeed unnecessary and a useless ceremony – to file such
application despite the suspension order, before depriving her of her legitimate
right to return to her position. Patria potestas in piatate debet, non in atrocitate,
consistere. Paternal power should consist or be exercised in affection, not in
atrocity.

It is clear from the records that private respondent Galzote was arrested and
detained without a warrant on 6 September 1991 for which reason she and her
co-accused were subjected immediately to inquest proceedings. This fact is
evident from the instant petition itself and its attachments x x x. Hence, her
ordeal in jail began on 6 September 1991 and ended only after her acquittal,
thus leaving her no time to attend to the formality of filing a leave of absence.

But petitioner City Government would unceremoniously set aside its

9 September 1991 suspension order claiming that it was superseded three (3)
years later by a memorandum dropping her from the rolls effective 21 January
1993 for absence “for more than one (1) year without official leave.” Hence, the
suspension order was void since there was no pending administrative charge
against private respondent so that she was not excused from filing an application
for leave.

We do not agree. In placing private respondent under suspension

until the final disposition of her criminal case, the Municipal Personnel Officer
acted with competence, so he presumably knew that his order of suspension was
not akin to either suspension as penalty or preventive suspension since there
was no administrative case against private respondent. As competence on the
part of the MPO is presumed, any error on his part should not prejudice private
respondent, and that what he had in mind was to consider her as being on leave
of absence without pay and their employer-employee relationship being merely
suspended, not severed, in the meantime. This construction of the order of
suspension is actually more consistent with logic as well as fairness and
kindness to its author, the MPO. Significantly, the idea of a suspended
employer-employee relationship is widely accepted in labor law to account for
situations wherein laborers would have no work to perform for causes not
attributable to them. We find no basis for denying the application of this
principle to the instant case which also involves a lowly worker in the public
service.

Moreover, we certainly cannot nullify the City Government’s order of

suspension, as we have no reason to do so, much less retroactively apply such
nullification to deprive private respondent of a compelling and valid reason for
not filing the leave application. For as we have held, a void act though in law a
mere scrap of paper nonetheless confers legitimacy upon past acts or omissions
done in reliance thereof. Consequently, the existence of a statute or executive
order prior to its being adjudged void is an operative fact to which legal
consequences are attached. It would indeed be ghastly unfair to prevent private
respondent from relying upon the order of suspension in lieu of a formal leave
application.

At any rate, statements are, or should be, construed against the one
responsible for the confusion; otherwise stated, petitioner must assume full
responsibility for the consequences of its own act, hence, he should be made to
answer for the mix-up of private respondent as regards the leave application. At
the very least, it should be considered estopped from claiming that its order of
suspension is void or that it did not excuse private respondent from filing an
application for leave on account of her incarceration. It is a fact that she relied
upon this order, issued barely three (3) days from the date of her arrest, and
assumed that when the criminal case would be settled she could return to work
without need of any prior act. x x x

The holding of the Civil Service Commission that private respondent was on
automatic leave of absence during the period of her detention must be
sustained. The CSC is the constitutionally mandated central personnel agency
of the Government tasked to “establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness, progressiveness and
courtesy in the civil service” (Const., Art. IX-B, Sec. 3) and “strengthen the merit
and rewards system, integrate all human resources development programs for
all levels and ranks, and institutionalize a management climate conducive to
public accountability.” Besides, the Administrative Code of 1987 further
empowers the CSC to “prescribe, amend, and enforce rules and regulations for
carrying into effect the provisions of the Civil Service Law and other pertinent
laws,” and for matters concerning leaves of absence, the Code specifically vests
the CSC to ordain –

Sec. 60. Leave of absence. – Officers and employees in the Civil Service shall be
entitled to leave of absence, with or without pay, as may be provided by law and
the rules and regulations of the Civil Service Commission in the interest of the
service.

Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated

27 December 1991 entitled Rules Implementing Book V of Executive Order No.
292 and Other Pertinent Civil Service Laws which it has several times amended
through memorandum circulars. It devotes Rule XVI to leaves of
absence. Petitioner City Government relies upon Secs. 20 and 35 to debunk the
CSC ruling of an automatic leave of absence. Significantly, these provisions have
been amended so that Sec. 20 of the Civil Service Rules is now Sec. 52 of Rule
XVI, on Leave of Absence, of Resolution No. 91-1631 dated 27 December 1991 as
amended by CSC MC No. 41, s. 1998, and Sec. 35 is now Sec. 63 as amended
by CSC MC Nos. 41, s. 1998 and 14, s. 1999.

As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require
an approved leave of absence to avoid being an AWOL. However, these
provisions cannot be interpreted as exclusive and referring only to one mode of
securing the approval of a leave of absence which would require an employee to
apply for it, formalities and all, before exceeding thirty (30) days of absence in
order to avoid from being dropped from the rolls. There are, after all, other
means of seeking and granting an approved leave of absence, one of which is the
CSC recognized rule of automatic leave of absence under specified
circumstances. x x x

As properly noted, the CSC was only interpreting its own rules on
leave of absence and not a statutory provision (As a matter of fact, Sec. 60 of the
Administrative Code does not provide for any rule on leave of absence other than
that civil servants are entitled to leave of absence) in coming up with this uniform
rule. Undoubtedly, the CSC like any other agency has the power to interpret its
own rules and any phrase contained in them with its interpretation significantly
becoming part of the rules themselves. x x x

Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service
Officers and Employees in the Implementation of Government Reorganization) and
RA 7160 (The Local Government Code of 1991), civil servants who are found
illegally dismissed or retrenched are entitled to full pay for the period of their
separation.

Our final point. An efficient and honest bureaucracy is never

inconsistent with the emphasis on and the recognition of the basic rights and
privileges of our civil servants or, for that matter, the constitutional mandates of
the Civil Service Commission. In fact only from an enlightened corps of
government workers and an effective CSC grows the professionalization of the
bureaucracy. Indeed the government cannot be left in the lurch; but neither
could we decree that government personnel be separated from their jobs
indiscriminately regardless of fault. The fine line between these concerns may
be difficult to clearly draw but if we only exerted extra effort to rebel against the
allure of legal over-simplification, justice would have been done where it is truly
due. (City Government of Makati City v. Civil Service Commission, 376
SCRA 248, Feb. 6, 2002, En Banc [Bellosillo])

What is abandonment of office? What are its essential elements?

Held: Abandonment of an office is the voluntary relinquishment of an office by

the holder, with the intention of terminating his possession and control
thereof. In order to constitute abandonment of an office, it must be total and
under such circumstances as clearly to indicate an absolute
relinquishment. There must be a complete abandonment of duties of such
continuance that the law will infer a relinquishment. Abandonment of duties is
a voluntary act; it springs from and is accompanied by deliberation and freedom
of choice. There are, therefore, two essential elements of abandonment: first, an
intention to abandon and second, an overt or “external” act by which the
intention is carried into effect.
Generally speaking, a person holding a public office may abandon such office by
non-user or acquiescence. Non-user refers to a neglect to use a right or privilege
or to exercise an office. However, non-performance of the duties of an office does
not constitute abandonment where such non-performance results from
temporary disability or from involuntary failure to perform. Abandonment may
also result from an acquiescence by the officer in his wrongful removal or
discharge, for instance, after a summary removal, an unreasonable delay by an
officer illegally removed in taking steps to vindicate his rights may constitute an
abandonment of the office. Where, while desiring and intending to hold the
office, and with no willful desire or intention to abandon it, the public officer
vacates it in deference to the requirements of a statute which is afterwards
declared unconstitutional, such a surrender will not be deemed an abandonment
and the officer may recover the effect. (Canonizado v. Aguirre, 351 SCRA 659,
665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes])

By accepting another position in the government during the pendency of

a case – brought precisely to assail the constitutionality of his removal –
may a person be deemed to have abandoned his claim for reinstatement?

Held: Although petitioners do not deny the appointment of Canonizado as

Inspector General, they maintain that Canonizado’s initiation and tenacious
pursuance of the present case would belie any intention to abandon his former
office. Petitioners assert that Canonizado should not be faulted for seeking
gainful employment during the pendency of this case. Furthermore, petitioners
point out that from the time Canonizado assumed office as Inspector General he
never received the salary pertaining to such position x x x.

By accepting the position of Inspector General during the pendency

of the present case – brought precisely to assail the constitutionality of his
removal from the NAPOLCOM – Canonizado cannot be deemed to have
abandoned his claim for reinstatement to the latter position. First of all,
Canonizado did not voluntarily leave his post as Commissioner, but was
compelled to do so on the strength of Section 8 of RA 8551 .

In our decision of 25 January 2000, we struck down the abovequoted

provision for being violative of petitioner’s constitutionally guaranteed right to
security of tenure. Thus, Canonizado harbored no willful desire or intention to
abandon his official duties. In fact, Canonizado, together with petitioners x x x
lost no time disputing what they perceived to be an illegal removal; a few weeks
after RA 8551 took effect x x x petitioners instituted the current action x x x
assailing the constitutionality of certain provisions of said law. The removal of
petitioners from their positions by virtue of a constitutionally infirm act
necessarily negates a finding of voluntary relinquishment. (Canonizado v.
Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes])
Distinguish “term” of office from “tenure” of the incumbent.

Held: In the law of public officers, there is a settled distinction between “term”
and “tenure.” “[T]he term of an office must be distinguished from the tenure of
the incumbent. The term means the time during which the officer may claim to
hold office as of right, and fixes the interval after which the several incumbents
shall succeed one another. The tenure represents the term during which the
incumbent actually holds the office. The term of office is not affected by the
hold-over. The tenure may be shorter than the term for reasons within or beyond
the power of the incumbent.” (Thelma P. Gaminde v. COA, G.R. No. 140335,
Dec. 13, 2000, En Banc [Pardo])

Discuss the operation of the rotational plan insofar as the term of office
of the Chairman and Members of the Constitutional Commissions is
concerned.

Held: In Republic v. Imperial, we said that “the operation of the rotational plan
requires two conditions, both indispensable to its workability: (1) that the terms
of the first three (3) Commissioners should start on a common date, and (2) that
any vacancy due to death, resignation or disability before the expiration of the
term should only be filled only for the unexpired balance of the term.”

Consequently, the terms of the first Chairmen and Commissioners of the

Constitutional Commissions under the 1987 Constitution must start on a
common date, irrespective of the variations in the dates of appointments and
qualifications of the appointees, in order that the expiration of the first terms of
seven, five and three years should lead to the regular recurrence of the two-year
interval between the expiration of the terms.

Applying the foregoing conditions x x x, we rule that the appropriate starting

point of the terms of office of the first appointees to the Constitutional Commissions
under the 1987 Constitution must be on February 2, 1987, the date of the adoption
of the 1987 Constitution. In case of a belated appointment or qualification, the
interval between the start of the term and the actual qualification of the
appointee must be counted against the latter. (Thelma P. Gaminde v. COA,
G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])

What is the hold-over doctrine? What is its purpose?

Held: 1. The concept of holdover when applied to a public officer implies that
the office has a fixed term and the incumbent is holding onto the succeeding
term. It is usually provided by law that officers elected or appointed for a fixed
term shall remain in office not only for that term but until their successors have
been elected and qualified. Where this provision is found, the office does not
become vacant upon the expiration of the term if there is no successor elected
and qualified to assume it, but the present incumbent will carry over until his
successor is elected and qualified, even though it be beyond the term fixed by
law.

Absent an express or implied constitutional or statutory provision to the

contrary, an officer is entitled to stay in office until his successor is appointed or
chosen and has qualified. The legislative intent of not allowing holdover must
be clearly expressed or at least implied in the legislative enactment, otherwise it
is reasonable to assume that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices, and courts generally indulge
in the strong presumption against a legislative intent to create, by statute, a
condition which may result in an executive or administrative office becoming, for
any period of time, wholly vacant or unoccupied by one lawfully authorized to
exercise its functions. This is founded on obvious considerations of public
policy, for the principle of holdover is specifically intended to prevent public
convenience from suffering because of a vacancy and to avoid a hiatus in the
performance of government functions. (Lecaroz v. Sandiganbayan, 305 SCRA
397, March 25, 1999, 2nd Div. [Bellosillo])

2. The rule is settled that unless “holding over be expressly or impliedly

prohibited, the incumbent may continue to hold over until someone else is
elected and qualified to assume the office.” This rule is demanded by the “most
obvious requirements of public policy, for without it there must frequently be
cases where, from a failure to elect or a refusal or neglect to qualify, the office
would be vacant and the public service entirely suspended.” Otherwise stated,
the purpose is to prevent a hiatus in the government pending the time when the
successor may be chosen and inducted into office. (Galarosa v. Valencia, 227
SCRA 728, Nov. 11, 1993, En Banc [Davide, Jr.])

What is resignation? What are the requisites of a valid resignation?

Held: 1. It is the act of giving up or the act of an officer by which he declines

his office and renounces the further right to use it. It is an expression of the
incumbent in some form, express or implied, of the intention to surrender,
renounce, and relinquish the office and the acceptance by competent and lawful
authority. To constitute a complete and operative resignation from public office,
there must be: (a) an intention to relinquish a part of the term; (b) an act of
relinquishment; and (c) an acceptance by the proper authority. The last one is
required by reason of Article 238 of the Revised Penal Code. (Sangguniang
Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)

2. Resignation x x x is a factual question and its elements are beyond quibble:

there must be an intent to resign and the intent must be coupled by acts of
relinquishment. The validity of a resignation is not governed by any formal
requirement as to form. It can be oral. It can be written. It can be express. It
can be implied. As long as the resignation is clear, it must be given legal
effect. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc
[Puno])

What is abandonment of an office? What are its requisites? How is it

distinguished from resignation?

Held: Abandonment of an office has been defined as the voluntary

relinquishment of an office by the holder, with the intention of terminating his
possession and control thereof. Indeed, abandonment of office is a species of
resignation; while resignation in general is a formal relinquishment,
abandonment is a voluntary relinquishment through nonuser.

Abandonment springs from and is accompanied by deliberation and freedom of

choice. Its concomitant effect is that the former holder of an office can no longer
legally repossess it even by forcible reoccupancy.

Clear intention to abandon should be manifested by the officer concerned. Such

intention may be express or inferred from his own conduct. Thus, the failure to
perform the duties pertaining to the office must be with the officer’s actual or
imputed intention to abandon and relinquish the office. Abandonment of an
office is not wholly a matter of intention; it results from a complete abandonment
of duties of such continuance that the law will infer a relinquishment. Therefore,
there are two essential elements of abandonment; first, an intention to abandon
and, second, an overt or “external” act by which the intention is carried into
effect. (Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA
276, Jan. 16, 1998)

What is the effect of acceptance of an incompatible office to a claim for

reinstatement?

Held: The next issue is whether Canonizado’s appointment to and acceptance

of the position of Inspector General should result in an abandonment of his claim
for reinstatement to the NAPOLCOM. It is a well-settled rule that he who, while
occupying one office, accepts another incompatible with the first, ipso facto
vacates the first office and his title is thereby terminated without any other act
or proceeding. Public policy considerations dictate against allowing the same
individual to perform inconsistent and incompatible duties. The incompatibility
contemplated is not the mere physical impossibility of one person’s performing
the duties of the two offices due to a lack of time or the inability to be in two
places at the same moment, but that which proceeds from the nature and
relations of the two positions to each other as to give rise to contrariety and
antagonism should one person attempt to faithfully and impartially discharge
the duties of one toward the incumbent of the other.

There is no question that the positions of NAPOLCOM Commissioner

and Inspector General of the IAS are incompatible with each other. As pointed
out by respondents, RA 8551 prohibits any personnel of the IAS from sitting in
a committee charged with the task of deliberating on the appointment,
promotion, or assignment of any PNP personnel, whereas the NAPOLCOM has
the power of control and supervision over the PNP. However, the rule on
incompatibility of duties will not apply to the case at bar because at no point did
Canonizado discharge the functions of the two offices
simultaneously. Canonizado was forced out of his first office by the enactment
of Section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector
General x x x he had ceased to discharge his official functions as NAPOLCOM
Commissioner. x x x Thus, to reiterate, the incompatibility of duties rule never
had a chance to come into play for petitioner never occupied the two positions,
of Commissioner and Inspector General, nor discharged their respective
functions, concurrently.

As in the Tan v. Gimenez and Gonzales v. Hernandez cases, Canonizado was

compelled to leave his position as Commissioner, not by an erroneous decision,
but by an unconstitutional provision of law. Canonizado, like the petitioners in
the above mentioned cases, held a second office during the period that his appeal
was pending. As stated in the Comment filed by petitioners, Canonizado was
impelled to accept this subsequent position by a desire to continue serving the
country, in whatever capacity. Surely, this selfless and noble aspiration
deserves to be placed on at least equal footing with the worthy goal of providing
for oneself and one’s family, either of which are sufficient to justify Canonizado’s
acceptance of the position of Inspector General. A Contrary ruling would deprive
petitioner of his right to live, which contemplates not only a right to earn a living,
as held in previous cases, but also a right to lead a useful and productive
life. Furthermore, prohibiting Canonizado from accepting a second position
during the pendency of his petition would be to unjustly compel him to bear the
consequences of an unconstitutional act which under no circumstance can be
attributed to him. However, before Canonizado can re-assume his post as
Commissioner, he should first resign as Inspector General of the IAS-PNP.
(Canonizado v. Aguirre, 351 SCRA 659, Feb. 15, 2001, En Banc [Gonzaga-
Reyes])

When may unconsented transfers be considered anathema to security of

tenure?

Held: As held in Sta. Maria v. Lopez:

“x x x the rule that outlaws unconsented transfers as anathema to security of

tenure applies only to an officer who is appointed – not merely assigned – to a
particular station. Such a rule does not pr[o]scribe a transfer carried out under
a specific statute that empowers the head of an agency to periodically reassign
the employees and officers in order to improve the service of the agency. x x x”
The guarantee of security of tenure under the Constitution is not a guarantee of
perpetual employment. It only means that an employee cannot be dismissed (or
transferred) from the service for causes other than those provided by law and
after due process is accorded the employee. What it seeks to prevent is
capricious exercise of the power to dismiss. But where it is the law-making
authority itself which furnishes the ground for the transfer of a class of
employees, no such capriciousness can be raised for so long as the remedy
proposed to cure a perceived evil is germane to the purposes of the
law. (Agripino A. De Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July
19, 2000, En Banc [Purisima])

Discuss Abolition of Office.

Held: The creation and abolition of public offices is primarily a legislative

function. It is acknowledged that Congress may abolish any office it creates
without impairing the officer’s right to continue in the position held and that
such power may be exercised for various reasons, such as the lack of funds or
in the interest of economy. However, in order for the abolition to be valid, it must
be made in good faith, not for political or personal reasons, or in order to
circumvent the constitutional security of tenure of civil service employees.

An abolition of office connotes an intention to do away with such office wholly

and permanently, as the word “abolished” denotes. Where one office is
abolished and replaced with another office vested with similar functions, the
abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul we said:

It is true that a valid and bona fide abolition of an office denies to the incumbent
the right to security of tenure (De la Llana v. Alba, 112 SCRA 294
[1982]). However, in this case, the renaming and restructuring of the PGH and
its component units cannot give rise to a valid and bona fide abolition of the
position of PGH Director. This is because where the abolished office and the
offices created in its place have similar functions, the abolition lacks good faith
(Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186
SCRA 108 [1990]). We hereby apply the principle enunciated in Cezar Z. Dario
v. Hon. Salvador M. Mison (176 SCRA 84 [1989]) that abolition which merely
changes the nomenclature of positions is invalid and does not result in the
removal of the incumbent.

The above notwithstanding, and assuming that the abolition of the position of
the PGH Director and the creation of a UP-PGH Medical Center Director are valid,
the removal of the incumbent is still not justified for the reason that the duties
and functions of the two positions are basically the same.

This was also our ruling in Guerrero v. Arizabal, wherein we declared that the
substantial identity in the functions between the two offices was indicia of bad
faith in the removal of petitioner pursuant to a reorganization. (Alexis C.
Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132,
Jan. 25, 2000, En Banc [Gonzaga-Reyes])

What is reorganization? When is it valid? When is it invalid?

Held: 1. Reorganization takes place when there is an alteration of the existing

structure of government offices or units therein, including the lines of control,
authority and responsibility between them. It involves a reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy
of functions. Naturally, it may result in the loss of one’s position through
removal or abolition of an office. However, for a reorganization to be valid, it
must also pass the test of good faith, laid down in Dario v. Mison:

x x x As a general rule, a reorganization is carried out in “good faith” if it is for

the purpose of economy or to make bureaucracy more efficient. In that event,
no dismissal (in case of dismissal) or separation actually occurs because the
position itself ceases to exist. And in that case, security of tenure would not be
a Chinese wall. Be that as it may, if the “abolition” which is nothing else but a
separation or removal, is done for political reasons or purposely to defeat security
of tenure, or otherwise not in good faith, no valid “abolition” takes place and
whatever “abolition” is done, is void ab initio. There is an invalid “abolition” as
where there is merely a change of nomenclature of positions, or where claims of
economy are belied by the existence of ample funds. (Alexis C. Canonizado, et
al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000,
En Banc [Gonzaga-Reyes])

2. While the President’s power to reorganize can not be denied, this

does not mean however that the reorganization itself is properly made in
accordance with law. Well-settled is the rule that reorganization is regarded as
valid provided it is pursued in good faith. Thus, in Dario v. Mison, this Court
has had the occasion to clarify that:

“As a general rule, a reorganization is carried out in ‘good faith’ if it is for the
purpose of economy or to make the bureaucracy more efficient. In that event no
dismissal or separation actually occurs because the position itself ceases to
exist. And in that case the security of tenure would not be a Chinese wall. Be
that as it may, if the abolition which is nothing else but a separation or removal,
is done for political reasons or purposely to defeat security of tenure, or otherwise
not in good faith, no valid abolition takes place and whatever abolition done is
void ab initio. There is an invalid abolition as where there is merely a change of
nomenclature of positions or where claims of economy are belied by the existence
of ample funds.” (Larin v. Executive Secretary, 280 SCRA 713, Oct. 16,
1997)
What are the circumstances evidencing bad faith in the removal of
employees as a result of reorganization and which may give rise to a claim
for reinstatement or reappointment)?

Held: Where there is a significant increase in the number of positions in the

new staffing pattern of the department or agency concerned;

Where an office is abolished and another performing substantially the same

functions is created;

Where incumbents are replaced by those less qualified in terms of status of

appointment, performance and merit;

Where there is a reclassification of offices in the department or agency concerned

and the reclassified offices perform substantially the same functions as the
original offices;

Where the removal violates the order of separation provided in Section 3 hereof.

(Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct.
16, 1997)