JM 2018 Barnotes Pubofcr
JM 2018 Barnotes Pubofcr
JM 2018 Barnotes Pubofcr
10. Can the President still make appointment to the judiciary during the so-called midnight
appointment ban period?
ANSWER: The President can make appointments to the Supreme Court two months before a
presidential election until the end of his term but not to the rest of the Judiciary like the Court of
Appeals. Under Section4 (1), Article VIII of the Constitution, vacancies in the Supreme Court shall be
filled within ninety (90) days from the occurrence of the vacancy. Under Section 9, Article VIII of the
Constitution, vacancies in the lower courts shall be filled within ninety (90) days from submission of
the list of nominees. These appointments are screened by the Judicial and Bar Council, and the
process necessarily precludes or prevents the President from making purely political appointments to
the courts, which is what is sought to be prevented by the prohibition. (De Castro v. Judicial and Bar
Council, GR No. 191002, April 20, 2010, 615 SCRA 666)
Security of Tenure in Career Executive Service
11. How is security of tenure acquired in the Career Executive Service?
ANSWER: The guarantee of security of tenure is a concept which is applicable only to first and second-level
employees in the civil service. For members of the Career Executive Service, security of tenure does not
extend to the particular positions to which they may be appointed but to the rank to which they are appointed
by the President. (Osea vs. Malaya, GR No. 139821, January 30, 2002; Dimayuga vs. Benedicto, GR No.
144154, January 30, 2002 and Ignacio vs. CSC, 464 SCRA 220)
Appointments, assignments, reassignments and transfer in the Career Executive Service are based
on rank. Security of tenure in the Career Executive Service is thus acquired with respect to rank and not to
position. Mobility and flexibility in the assignment of personnel, to better cope with the exigencies of public
service, is the distinguishing feature of the Career Executive Service. (Secretary of Justice vs. Bacal, GR No.
139382, December 6, 2000)
Grounds for disciplinary action
12. Does dishonesty, as ground of disciplinary action against a public officer, need to be
committed in the course of the performance of duty by the person charged?
ANSWER: NO. The rule is that dishonesty, in order to warrant dismissal, need not be committed in the course
of the performance of duty by the person charged. If a government officer or employee is
dishonest or is guilty of oppression or misconduct, even if said defects of character are not
connected with his office, they affect his right to continue in office. The principle is that when
an officer or employee is disciplined, the object sought is not the punishment of such officer or
employee but the improvement of the public service and the preservation of the public faith
and confidence in the government. (Remolana vs. CA, 362 SCRA 304)
13. Can employees in the public service engage in strike, mass leaves or walkouts?
ANSWER: NO. Employees in the public service may not engage in strike, mass leaves, walkouts and other
forms of mass action that will lead in the temporary stoppage or disruption of public service. The right of
government employees to organize is limited to the formation of unions or associations only, without including
the right to strike. (Gisete vs. CA, 444 SCRA 51)
14. Can a government official or employee who is on AWOL be dismissed from service?
ANSWER: YES. Section 63 of CSC Res. No. 983142 already allows the dismissal of a government official or
employee who is on AWOL without prior notice. But the government official or employee who is on AWOL shall
be informed of his separation from the service not later than 5 days from its effectivity. (Petilla vs. CA, 424
SCRA, 254)
(3)
20. An administrative complaint was filed against MDA before the Office of the Ombudsman.
She requested for a formal investigation as provided for in the Administrative Code but it was
denied. She now claims she was deprived of her right to due process. Is her contention legally
tenable?
ANSWER: NO. The provision in the Administrative Code cited by the petitioner in support of her theory that she
is entitled to a formal investigation apply only to cases filed before the Civil Service Commission. The
administrative complaint against petitioner was filed before the Office of the Ombudsman, suggesting that a
different rules of procedure govern. Administrative Order No. 7, as amended by AO 17, particularly governs
the procedure in administrative proceedings before the Office of the Ombudsman. The denial of petitioner’s
request for a formal investigation is not tantamount to a denial of her right to due process. Petitioner was
required to file a counter-affidavit and position paper and later on, was given a chance to file two motions for
reconsideration of the decision of the deputy ombudsman. (Medina vs. COA, 543 SCRA 684)
21. Who is vested with the power to remove or dismiss erring local elective officials? What is
the effect of the imposition of the penalty of dismissal in an administrative case?
ANSWER: The Office of the President is without any power to remove elected officials since such power is
exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the
Local Government Code. (Salalima vs. Guingona, 257 SCRA 55) Likewise, in Pablico vs. Villapando, 385
SCRA 601, it was held that the power to remove erring elective local officials from service is lodged
exclusively with the courts. Hence, Article 124 (b), Rule XIX of the rules and regulations implementing the
Local Government Code insofar as it vests power on the “disciplining authority” to remove from office erring
elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government.
Such grant to the “disciplining authority” of the power to remove elective local officials is clearly beyond the
authority of the Oversight Committee that prepared the rules and regulations. No such regulation may alter,
amend or contravene a provision of law, such as the Local Government Code.
The law on suspension and removal of elective public officials must be strictly construed and applied,
and the authority in whom such power of suspension or removal is vested must exercise it with utmost good
faith, for what is involved is not just an ordinary public official but one chosen by the people through the
exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or
partisanship of the disciplining authority. When the disciplining authority is given only the power to suspend and
not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove.
(Ibid.) The penalty of removal from office as a result of an administrative investigation shall be considered a bar
to the candidacy of the respondent for any elective position. (Section 66 c, LGC)
22. May a Deputy Ombudsman be subjected to the administrative disciplinary jurisdiction of the
President?
ANSWER: NO. The framers of the Constitution intended that independent bodies be insulated from political
pressure to the extent that the absence of independence would result in the impairment of their core functions.,
Hence, RA No. 6770 vesting authority in the President over the Deputy Ombudsman violates the
independence of the Office of the Ombudsman and thus unconstitutional. (Gonzales III. Office of the President
of the Philippines, GR No. 196231, January 28, 2014)
(5)
Preventive Suspension vs. Suspension as a Penalty
23. Distinguish preventive suspension from suspension as a penalty. Can service of the former
be credited as service for the latter?
ANSWERS: Preventive suspension is merely a preventive measure, a preliminary step in administrative
investigation. The purpose of the suspension order is to prevent the accused from using his position and the
powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital
in the prosecution of the case against him. If after such investigation, the charge is established and the person
investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or
dismissed. This is the penalty. Unlike in criminal law in case of preventive imprisonment, the period within
which one is under preventive suspension, not being a penalty, is not considered of the actual penalty of
suspension – service of the preventive suspension cannot be credited as service of the penalty. (Quimbo vs.
Gervacio, 466 SCRA 277)
24. What are the periods of preventive suspension?
ANSWER: For administrative cases: a) under CS Law, 90 days b) under the LGC, 60 or 90 days for elective
officials, and 90 days for appointive officials c) under Ombudsman Act, 6 months. For criminal
cases, under RA 3019, 90 days by analogy.