Q: State the prohibitions imposed under the 1987 Constitution against the holding of 2 or more positions.
A:
A. Members of Congress shall not:
1. Appear as counsel before any court, electoral tribunal, or quasi-judicial and other administrative bodies;
2. Shall not be interested in any contract with, or in any franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including GOCCs, or its subsidiary;
3. Shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office
B. The President, Vice President, Members of the Cabinet, and their deputies or assistants, unless otherwise allowed by the Constitution, shall not: 1. Directly or indirectly practice any other
profession;
2. 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 GOCCs, or its
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subdivisions; shall avoid conflict of interest in the conduct of their office
C. Members of the Constitutional Commission shall not:
1. Hold any other office or employment or engage in the practice of any profession or in the active management or control of any business that may be affected by the functions of his office;
2. Be financially interested, directly or indirectly, in any contract with, or in any franchise, or special privilege granted by the Government, or any subdivision, agencies or instrumentalities including GOCCs, or their subsidiaries. These shall also apply to the Ombudsman and his deputies during his term.
D. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries. (Art. IX – B, Sec. 7; Flores vs. Drilon, G.R. No. 104732 June 22, 1993)
E. No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the government including GOCCs or any of their subsidiaries. (Art XVI Sec. 5 par. 4)
Q: What are the grounds for disqualification to hold office?
A:
1. Mental or physical incapacity
2. Misconduct or commission of a crime 3. Impeachment
4. Removal or suspension from office 5. Previous tenure of office
6. Consecutive terms exceeding the allowable number of terms
7. Holding more than one office (except ex officio) 8. Relationship with the appointing power
(nepotism)
9. Office newly created or the emoluments of which have been increased (forbidden office)
10. Being an elective official (Flores v Drilon, G.R. No. 104732, June 22, 1993)
11. Losing candidate in the election within 1 year following the date of election (prohibitions from office not employment); and
12. Grounds provided for under the local government code.
Q: State the two classes of office which a member of Congress is disqualified to hold under Article VI, Section 13 of the constitution.
A:
1. Incompatible Office 2. Forbidden Office
Note: See further discussion under Legislative Department
chapter.
Q: What is the rule against the appointment of members of the official family of the President? A: The spouses and relatives by consanguinity or affinity within the 4th civil degree of the President shall not be appointed as members of the Constitutional Commissions, Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs and their subsidiaries during his tenure. (Sec. 13, Art. VII, Constitution)
Q: What are the exceptions to the rule against holding 2 or more positions by public officers, as allowed by the Constitution?
A: 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.
Note: The Supreme Court held that 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. (Civil Liberties Union v
Executive Secretary, 194 SCRA 317)
Q: What are the other prohibitions imposed on public officers?
A:
1. Prohibition against solicitation of gifts (Sec. 7(d), R.A. No. 6713)
Note: Public officers, however, may accept the following gifts from foreign governments:
a. Gifts of nominal value received as souvenir or mark of courtesy;
b. Scholarship or fellowship grant or medical treatment;
c. Travel grants or expenses for travel outside the Philippines (Sec. 7(d), R.A. No. 6713)
2. Prohibition against partisan political activities (Sec. 2(4), Art. IX(B), Constitution)
Note: Partisan political activity is an act designed to promote the election or defeat of a particular candidate/s to a public office. It is also known as “electioneering” (Sec. 79, Omnibus Election Code).
3. Prohibition against engaging in strike (Social Security System Employees Assn. v. CA, G.R No. 85279, Jul 28,1989).
4. Restriction against engaging in the practice of law (Sec. 90, R.A. No. 7160)
5. Prohibition against practice of other professions (Sec. 90, R.A. No. 7160)
6. Restriction against engaging in private business (Abeto v. Garces, A.M. No. P-88-269, Dec. 29, 1995)
7. Restriction against accepting certain employment (Sec. 7(b), R.A. No. 6713)
Q: Can appointive officials engage in partisan political activities?
A: No. Officers or employees in the Civil Service including members of the Armed Forces cannot engage in such activity except to vote. They shall not use their official authority or influence to coerce the political activity of any person (Sec. 55, Subtitle A, Title I, Book V, 1987 Administrative Code).
Note: Officers and employees in the Civil Service can nonetheless express their views on current political issues and mention the names of the candidates they support.
Q: What kind of public officers may engage in partisan political activities?
A:
1. Those holding political offices, such as the President of the Philippines, Vice President of the Philippines; Executive Secretary/ Department Secretaries and other Members of the Cabinet; All other elective officials at all levels; and those in the personal and confidential staff of the above officials.
Note: However, it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.
2. National, provincial, city and municipal elective officials. (Santos v. Yatco, G.R. No. L- 16133, Nov. 6, 1959)
Q: Describe the extent of the right to self- organization of employees in the public service?
A: While the Constitution recognizes the right of public employees to organize, they are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which may result to temporary cessation of work or disturbance of public service. Their right to self-organization is limited only to form unions or to associate without including the right to strike. Labor unions in the government may bargain for better terms and conditions of employment by either petitioning the Congress for better terms and conditions, or negotiating with the appropriate government agencies for the improvement of those not fixed by law. (SSS Employees Assn. v. CA, G.R No. 85279, July 28,1989)
Q: Does the election or appointment of an attorney to a government office disqualify him from engaging in the private practice of law?
A: As a general rule, judges, other officials of the superior courts, of the office of the Solicitor General and of other Government prosecution offices; the President; Vice-President, and members of the cabinet and their deputies or assistants; members of constitutional commissions; and civil service officers or employees whose duties and responsibilities require that their entire time be at the disposal of the government are strictly prohibited from engaging in the private practice of law. (Ruben E. Agpalo, Legal Ethics, 6th 1997 ed., pp.42 et. seq.)
Q: Combo, a lawyer, is also a member of the Legislature. Is Combo absolutely prohibited from engaging the private practice of law?
A: No. He is only prohibited from “appearing” as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. The word appearance includes not only arguing a case before any such body but also filing a pleading on behalf of a client such as filing a motion, plea or answer. Neither is his name allowed to appear in such pleadings by itself or as part of a firm name under the signature of another qualified lawyer. (Ruben E. Agpalo, Administrative Law, Law on Public Officers and Election Law, 2005 ed., p. 410) Q: Under the Local Government Code, can the members of Sanggunian engage in the practice of law?
A: GR: Yes. XPNs:
1. Cannot appear as counsel in any civil case where in a local government unit or any
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office, agency or instrumentality of the Govt. is the adverse party;
2. Cannot appear as counsel in any criminal case wherein an officer or employee of the national or local Govt. is accused of an offense committed in relation to his office; 3. Shall not collect any fee for their
appearance in administrative proceeding involving the LGU of which he is an official; and
4. May not use property and personnel of the Govt., except when defending the interest of the Govt.
Q: Under the Local Government Code, what are the prohibitions against the practice of other professions?
A:
1. Local Chief Executives (governors, city and municipal mayors) are prohibited from practicing their profession
2. Sanggunian members may practice their profession, engage in any occupation, or teach in schools except during session hours
3. Doctors of medicine may practice their profession even during official hours of work in cases of emergency provided that they do not derive monetary compensation therefrom.
Q: What are the prohibitions under RA 6713 or Code of Conduct and Ethical Standards for Public Officials and Employees?
A:
1. Prohibition against financial and material interest - directly or indirectly having any financial or material interest in any transaction requiring the approval of their office.
2. Prohibition against outside employment and other activities related thereto - owning, controlling, managing or accepting employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office.
3. Engaging in the private practice of their profession
4. Recommending any person to any position in any private enterprise which has a regular or pending official transaction with their office.
Note: These prohibitions shall continue to apply for a period of one year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in
connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.