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E. Disabilities and inhibitions of public officers

1. IN GENERAL

a. On appointive officials

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 corporations or their subsidiaries. (Paragraph 2, Section 7, Article IX-B, 1987 Constitution)

b. On candidates who lost in election

No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in any of their subsidiaries. (Section 6, Article IX-B, 1987 Constitution)

No candidate who lost in an election shall be eligible for appointment to any office in the government, or in any government-owned or controlled corporation within one year following such election. (Section 44[2], P.D. 807, Civil Service Decree)

c. On elective officials

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Section 7, Article IX-B, 1987 Constitution)

No elective official shall be eligible for appointment to any office or position during his term of office. (Section 44[1], P.D. 807, Civil Service Decree)

d. On certain constitutional officers

1) President, Vice-President, Cabinet Members and their Deputies or Assistants

1) 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. (Section 13, Article VII, 1987 Constitution)

2) 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. (Ibid.)

3) They shall strictly avoid conflict of interest in the conduct of their office. (Ibid.)

a) No holding of any other office or employment

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. (Civil Liberties Union v. The Executive Secretary, En Banc, G.R. No. 83896, 22 February 1991)

(1) “Unless otherwise provided in this Constitution”

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:

1) The Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or,

2) The Vice-President acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and,

3) The Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. (Ibid.)

Case Law

1) Being designated as the Acting Secretary of Justice concurrently with his position of Acting Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, of the 1987 Constitution, whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold any other office or employment during his tenure as the Acting Solicitor General, because the Constitution has not otherwise so provided. (Funa v. Agra, En Banc, G.R. No. 191644, 19 February 2013)

2) Senators and House Representatives

1) 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. (Section 13, Article VI, 1987 Constitution)

2) 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. (Ibid.)

3) No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. (Section 14, Article VI, Ibid.)

4) Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. (Ibid.)

5) He 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. (Ibid.)

3) Members of the Supreme Court

GENERAL RULE: The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. (Section 12, Article VIII, 1987 Constitution)

EXCEPTIONS: When designated to an electoral tribunal –

1) Presidential Electoral Tribunal (PET) (Paragraph 7, Section 4, Article VII, 1987 Constitution); or

2) Senate Electoral Tribunal (SET) or House of Representatives Electoral Tribunal (HRET) (Section 17, Article VI, Ibid.).

The set up embodied in the Constitution (e.g. PET, SET, HRET) and statutes characterizes the resolution of electoral contests as essentially an exercise of judicial power. (Macalintal v. Presidential Electoral Tribunal, En Banc, G.R. No. 191618, 23 November 2010)

When the Supreme Court, as PET, resolves a presidential or vice-presidential election contest, it performs what is essentially a judicial power. (Ibid.)

4) Members of Constitutional Commissions

1) During their tenure, they shall not hold any other office or employment. (Section 2, Article IX-A, 1987 Constitution)

2) Neither shall they engage in the practice of any profession or in the active management or control of any business which in any way be affected by the functions of his office, nor shall they be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. (Ibid.)

3) They must not have been candidates for any elective position in the elections immediately preceding their appointment. (Section 1[1], Part B, C, D, Article IX, 1987 Constitution)

4) They shall be appointed by the President with the consent of the Commission on Appointments for a term of seven (7) years without reappointment. (Section 1[2], Part B, C, D, Article IX, 1987 Constitution)

5) Ombudsman and his Deputies

1) During their tenure, they shall not hold any other office or employment. (Paragrah 2, Section 8, Article XI cf. Section 2, Article IX-A, 1987 Constitution)

2) Neither shall they engage in the practice of any profession or in the active management or control of any business which in any way be affected by the functions of his office, nor shall they be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. (Ibid.)

3) They must not have been candidates for any elective office in the immediately preceding election. (Section 8, Article XI, Ibid.)

4) They shall serve for a term of seven years without reappointment. (Section 11, Article XI, Ibid.)

5) They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. (Section 11, Article XI, Ibid.)

6) Those who were impeached

Judgment in cases of impeachment shall result in disqualification to hold any office under the Republic of the Philippines. (Section 3[7], Article XI, 1987 Constitution)

e. On nepostism

1) Civil Service, in general – up to the 3rd degree

GENERAL RULE: All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, are prohibited if made in favor of a relative:

1) Of the appointing or recommending authority; or,

2) Of the chief of the bureau or office; or,

3) Of the persons exercising immediate supervision over him. (Section 59[a], Ibid.)

The word “relative” and members of the family referred to are those related within the third degree either of consanguinity or of affinity. (Paragraph 2, Section 59[a], Ibid.)

EXCEPTIONS: The following are exempted from the operation of the rules on nepotism:

1) Persons employed in a confidential capacity;

2) Teachers;

3) Physicians; and,

4) Members of the Armed Forces of the Philippines;

5) 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. (Section 59[b], Ibid.)

In order to give immediate effect to these provisions, cases of previous appointments which are in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of these provisions. (Section 49[c], Ibid.)

NB: Under the Local Government Code, the prohibition is up the fourth (4th) civil degree, and not just the third (3rd) civil degree under Civil Service Law.

2) Those related to the President – up to the 4th civil degree

The spouse and relatives by consanguinity or affinity within the fourth (4th) civil degree of the President shall not during his tenure be appointed as members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. (Section 13, Article VII, Ibid.)

3) Local government appointments – up to the 4th civil degree

No person shall be appointed in the career service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority. (Section 79, Ibid.)

f. On laborers in relation to clerical duties

Laborers, whether skilled, semi-skilled or unskilled, shall not be assigned to perform clerical duties. (Section 47, Ibid.)

g. On detail or reassignment 3 months before election

No detail or reassignment whatever shall be made within three (3) months before any election. (Section 48, Ibid.)

h. On those disqualified from running for local office

The following persons are disqualified from running for any elective local position:

1) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;

2) Those removed from office as a result of an administrative case;

3) Those convicted by final judgment for violating the oath of allegiance to the Republic;

4) Those with dual citizenship;

5) Fugitives from justice in criminal or non-political cases here or abroad;

6) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

7) The insane or feeble-minded. (Section 40, R.A. 7160)

2. RESTRICTIONS IN GOVERNMENT SERVICE

a. No political activity

No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. (Section 45, Ibid.)

Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but 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. (Section 45, Ibid.)

2. No additional or double compensation

No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument, office, or title of any kind from any foreign state. (Section 46, Ibid.)

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