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J. Distinguish: de facto and de jure officers


a. Concept

A de facto officer – exercises his or her authority under a color of an appointment or an election.  (Arroyo v. CA, G.R. No. 202860, 10 April 209)

De facto means “in point of fact.” To speak of something as being de facto is, thus,to say that it is actual or existing in fact as opposed to existing by right or according to law, that is, de jure. Being factual though not being founded on right or law, de facto is, therefore, “illegitimate but in effect.” (Re: Nomination of Atty. Lynda Chaguile, A.M. Nos. 13-04-03-SC, 13-05-08-SC, 13-06-11-SC, En Banc, 10 December 2013)

An officer de facto is one who has the reputation or appearance of being the officer he assumes to be but who, in fact, under the law, has no right or title to the office he assumes to hold. He is distinguished from a mere usurper or intruder by the fact that the former holds by some color of right or title while the latter intrudes upon the office and assumes to excercise its functions without either the legal title or color of right to such office. (Codilla v. Martinez, En Banc, G.R. No. L-14569, 23 November 1960 citing McQuillin, Municipal Corporations, Vol. 3, 3rd ed., pp. 376-377.)

a. De facto officer doctrine

The Court resorts to the de facto officer doctrine to accord validity to the actions of a de facto officer during the period of such officer’s wrongful tenure, insofar as the public or third persons are concerned. This principle was born of necessity, as the public cannot be expected to investigate the right of a public official to an office before transacting with them. Thus, on the basis of public policy and convenience, the public may assume that officials are legally qualified and in office. (Arroyo v. CA, supra.)

On this basis, it is apparent that the de facto officer doctrine is primarily for protecting those who rely on the official acts of persons discharging the duties of a public office, without being lawful officers.  It is meant to ensure the functioning of the government despite technical defects in the official’s title to office. (Ibid.)

The doctrine was established to contemplate situations where the duties of the office were exercised:

1) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumes to be;

2) Under color of a known or valid appointment or election, where the officer has failed to conform to some precedent requirement or condition, for example, a failure to take the oath or give a bond, or similar defect;

3) Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public; and,

4) Under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such. (Re: Nomination of Atty. Lynda Chaguile, supra.)

1) Requisites

The conditions and elements of de facto officership are the following:

1) There must be a de jure office;

2) There must be color of right or general acquiescence by the public; and

3) There must be actual physical possession of the office in good faith. (Tuanda v. Sandiganbayan, G.R. No. 110544, 17 October 1995)

One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where there is no de jure office, although there may be a de facto officer in a de jure office. (Ibid.)

a) De jure office

To constitute a de facto officer, there must be an office having a de facto existence, or at least one recognized by law and the claimant must be in actual possession of the office under color of title or authority. (Ibid. citing State vs. Babb, 124 W. Va. 428, 20 S.E. (2d) 683)

2) Validity of actions

Tthe acts of the de facto officer are just as valid for all purposes as those of a de jure officer, in so far as the public or third persons who are interested therein are concerned. This is premised on the reality that  third persons cannot always investigate the right of one assuming to hold an important office. They have a right to assume that officials apparently qualified and in office are legally such. (Re: Nomination of Atty. Lynda Chaguile, supra.)

Case Law

1) All official actions of Agra as a de facto Acting Secretary of Justice, assuming that was his later designation, were presumed valid, binding and effective as if he was the officer legally appointed and qualified for the office. This clarification is necessary in order to protect the sanctity of the dealings by the public with persons whose ostensible authority emanates from the State. Agra’s official actions covered by this claritlcation extend to but are not limited to the promulgation of resolutions on petitions for review filed in the Department of Justice, and the issuance of department orders, memoranda and circulars relative to the prosecution of criminal cases. (Funa v. Acting Secretary of Justice Alberto C. Agra, En Banc, G.R. No. 191644, 19 February 2013)

2) A judge de facto is an officer who is not fully invested with all of the powers and duties conceded to judges, but is exercising the office of judge under some color of right. A judge de facto may be said to be one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law-that is, there exists some defect in his appointment or election and in his right to exercise judicial functions at the particular time. (Arroyo v. CA, G.R. No. 202860, 25 June 2019 citing Lino v. Rodrigu,ez and De Los Angeles, G.R. No. 12647, 26 November 1917)

3) All official actions of Atty. Chaguile as de facto IBP Governor for Northern Luzon must be deemed valid, binding, and effective, as though she were the officer validly appointed and qualified for the office. (Re: Nomination of Atty. Lynda Chaguile, supra.)

3) Entitlement to compensation

GENERAL RULE: The rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title. (Monroy v. CA, En Banc, G.R. No. L-23258, 01 July 1967)

Rationale: The resulting hardship occasioned by the operation of this rule to the de facto officer who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers. The question of compensation involves different principles and concepts however. Here, it is possession of title, not of the office, that is decisive. A de facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of the public office. (Ibid.)

EXCEPTION: 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. (Civil Liberties Union v. Executive Secretary, En Banc, G.R. Nos. 83896 and 83815, 22 February 1991)

Rationale: 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. (Ibid.)

b. Removal via quo warranto

A quo warranto proceeding is the proper legal remedy to determine a person’s right or title to a public office and to oust the holder from its enjoyment. It is the proper action to inquire into a public officer’s eligibility or the validity of his appointment. Under Rule 66 of the Rules of Court, a quo warranto proceeding involves a judicial determination of the right to the use or exercise of the office. (Republic v. Sereno, En Banc, G.R. No. 237428, 19 June 2018)

Determining title to the office on the basis of a public officer’s qualifications is the function of quo warranto. (Ibid.)

1) When instituted by the Government against individuals

An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

1) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

2) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or

3) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (Section 1, Rule 66, Rules of Court)

a) When Solicitor General or public prosecutor must commence action

The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action. (Section 2, Rule 66, Ibid.)

b) When Solicitor General or public prosecutor may commence action with permission of court

The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. (Section 3, Rule 66, Ibid.)

2) When instituted by an individual

A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name. (Section 5, Rule 66, Ibid.)


a. Concept

A de jure officer – is legally appointed or elected, and possesses all qualifications to the office. (Arroyo v. CA, G.R. No. 202860, 10 April 209)

Case Law

1) A judge de jure is one who is exercising the office of a judge as a matter of right. He is an officer of a court which has been duly and legally elected or appointed. He is an officer of the law fully vested with all of the powers and functions conceded under the law to a judge which relate to the administration of justice within the jurisdiction over which he presides. (Arroyo v. CA, G.R. No. 202860, 25 June 2019 citing Lino v. Rodrigu,ez and De Los Angeles, G.R. No. 12647, 26 November 1917)


A usurper – acts without any title or color of right to the office. (Arroyo v. CA, G.R. No. 202860, 10 April 209)

As against a mere usurper, it is the color of authority, not the color of title that distinguishes an officer de facto from a usurper. Thus, a mere usurper is one “who takes possession of [an] office and undertakes to act officially without any color of right or authority, either actual or apparent.” A usurper is no officer at all. (Re: Nomination of Atty. Lynda Chaguile, supra.)

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