2. ANTECEDENTES .…
2.1. Situación del consumo digital
1. DE JURE OFFICER V. DE FACTO OFFICER (2000, 2004, 2009, 2010)
De Jure De Facto
Rests on right Rests on reputation
Requisites:
1. De jure office exists
2. He legally qualifies for the office 3. He is lawfully chosen for such office 4. He undertakes to perform the duties
of the office.
Requisites:
1. De jure office
2. Assumed office under color of right or general acquiescence by the public 3. Actual possession of office in good faith.
Lawful title or right to the office Has possession and performs duties under color of right without being technically qualified.
Cannot be removed even in a direct proceeding Can be ousted in a direct proceeding against him
2. IS ______ A DE FACTO OFFICER?
Yes, in the ff. instances.
Disqualified in a decision promulgated after completion of term (Bar 2013, Rodriguez v.
Tan.)
Holder of a mayoral position after execution of an election protest judgment, if the judgment is reversed. He is not a usurper.
No, in the ff. instances.
De facto officer Usurper Color of right or title to
the office Neither lawful title nor color of right to the where public knows or ought to know that he legitimate are valid insofar as the public or third persons are concerned
Acts absolutely null and void
4. RIGHT OF DE FACTO OFFICER TO SALARIES, ALLOWANCES, AND EMOLUMENTS RECEIVED
through non-user Formal
relinquishment
No acceptance
required Acceptance required
Accomplished through
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6. KINDS OF APPOINTMENTS (BAR 1990, 1991, 1994, 2010, 1990, 2003, 2005).
Kinds of presidential appointments.
Permanent Temporary/Acting
Regular Ad interim
When made While Congress is in
session. While Congress is not in session or during its recess
When a permanent
appointment cannot be made.
Subject to COA
Confirmation? Yes, if under the first sentence of Art. VII, Sec. 16.
Yes No
Security of tenure? Yes Yes No.
Additional Notes:
The Department Head is an alter ego of the President and must enjoy his confidence even if the appointment will be merely temporary.
The Senate or Congress cannot require that an undersecretary be appointed in lieu of an acting secretary by the President. (Asked 2013, citing facts from Pimentel Jr. v. Ermita)
An ad interim appointment by the President is permanent. An ad interim appointment by a department secretary is temporary (Bar 1994, Summers v. Ozaeta)
Acceptance of an ad interim appointment, being a permanent appointment, is a waiver of the right to hold one’s previous position (Id.) (Bar 2010)
An acting appointment is merely temporary.
It cannot become permanent unless a new, permanent appointment is made. (Bar 2003, Marohambsar v. ALonto)
7. REQUIREMENT OF CONFIRMATION BY COA (1999, 2002)
The appointment of the ff. requires confirmation by COA:
a) The heads of the executive departments, b) Ambassadors,
c) Other public ministers and consuls, or d) Officers of the armed forces from the rank of
colonel or naval captain, and
e) Other officers whose appointments are vested in him in this Constitution.
In contrast, the ff. do not:
a) All other officers of the Government whose appointments are not otherwise provided for by law, and
b) Those whom he may be authorized by law to appoint.
Congress cannot require that officers whose appointments need not be confirmed be subject to COA confirmation (2002, Manalo v.
Sistoza)
8. APPOINTMENTS TO THE
CONSTITUTIONAL COMMISSIONS (BAR 2013)
A losing candidate in the last previous election cannot be appointed to any of the Constitutional Commissions. This disqualification does not extend to the appointment of Directors of GOCCs.
9. NEPOTISM (2008, 2010)
General Rule: The Civil Service Decree (PD 807) prohibits all appointments in the national and local governments or any branch or instrumentality thereof made in favor of the relative of:
(1) Appointing authority;
(2) Recommending authority;
(3) Chief of the bureau office; or
(4) Person exercising immediate supervision over the appointee.
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“Relative” is one who is related within the third degree of either consanguinity or of affinity
In the last two cases, it is immaterial who the appointing or recommending authority is.
Therefore, it is no defense that one is not related to the appointing authority so long as the appointee is the chief of the bureau office or the person exercising immediate supervision over the appointee.[Bar 2009, 2010, CSC v. Dacoycoy(1999)]
Exceptions to rule on nepotism:
(1) Persons employed in a confidential capacity (2) Teachers
(3) Physicians
(4) Members of the Armed Forces of the Philippines
10. NEXT-IN-RANK RULE (1994)
The person next in rank shall be given PREFERENCE in promotion when the position immediately above his is vacated.
BUT the appointing authority still exercises discretion and is not bound by this rule, although he is required to specify the “special reason or reasons” for not appointing the officer next-in-rank.
Thus, the officer “next in rank” cannot challenge the appointment of someone else to fill a vacancy citing this rule.(1994)
11. POWER OF THE CSC TO DICTATE WHOM TO APPOINT.(1994)
The CSC has no power to dictate who to appoint. Neither can it replace an appointee with its choice. Its function is limited to determining whether or not the appointee meets the minimum qualifications for the position. (Luego v. CSC)
However, the CSC does have authority to revoke the appointment of the successful protestant when the right to security of
tenure of the prior appointee to the contested position had already attached.
12. DESIGNATION/APPOINTMENT OF ELECTIVE OFFICIAL AS APPOINTIVE OFFICIAL, EFFECT. (1995, 2002)
The acceptance of an appointment is a forfeiture of the elective position the official holds.
13. APPOINTMENT OF OFFICIALS TO MULTIPLE POSITIONS (2002)
This is generally not allowed, except when such officials can hold other offices when allowed by law or when the primary functions of their positions requires it. However, they cannot receive any additional compensation. (CLU v.
Exec Sec)
14. SECURITY OF TENURE (1999)
It means that no officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.
15. WHAT IS INCLUDED IN CAREER SERVICE? WHAT CHARACTERIZES IT?
(1999)
Characterized by entrance
I. As far as practicable, by competitive examinations, OR
II. Based on highly technical qualifications;
with opportunity for advancement to higher career positions and
III. Security of tenure.
Includes:
(a) Open career positions – Where prior qualification in an appropriate examination is required.
(b) Closed career positions – e.g. scientific or highly technical in nature;
(c) Career Executive Service
- e.g.undersecretaries, bureau directors (d) Career Officers – Other than those
belonging to the Career Executive Service
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those in the foreign service
(e) Positions in the AFP although governed by a different merit system
(f) Personnel of GOCCs with original charters (g) Permanent laborers, whether skilled,
semi-skilled or unsemi-skilled.
16. DOCTRINE OF CONDONATION (2000)
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, as these are violations against the state itself. Aguinaldo v. Santos
17. GOCCS, UNDER CIVIL SERVICE?
(2003)
Only if organized under original charters.
18. DISQUALIFICATIONS OF PUBLIC OFFICIALS (2004)
Position Disqualification
President, VP, and Members of Cabinet Shall not hold any other office or employment during tenure, unless provided in Consti.
Senator or Member of HOR May not hold any other office or employment in the Government, any subdivision, agency or instrumentality thereof, including GOCCs
May not hold any office created or whose emoluments were increased during his term SC and other courts Shall not be designated to any agency performing
quasi-judicial or administrative functions.
Members of Concomms, and the Ombudsman
and his deputies Shall not hold any other office or employment during tenure.
President’s spouse and relatives by consanguinity
or affinity within the 4th civil degree. shall not be appointed during President’s tenures as members of the Concomms, the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs.
19. BYPASSED AD INTERIM APPOINTMENT (2005)
The prohibition against reappointment ad interim does not apply to a bypassed ad interim appointment. As such appointment had not finally been disapproved by the COA, it continues. (Matibag v. Benipayo)
20. HOLDOVER PRINCIPLE (2010)
In the absence of an express or implied constitutional or statutory provision to the contrary, an officer is entitled to hold his office until his successor is appointed or chosen and has been qualified. (Topacio v. Angeles)
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