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The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
Appointive government officials, active members of the AFP, and other officers and employees in GOCCs shall be considered ipso facto resigned from office upon filing the filing of their certificate of candidacy. An elected official, on the other hand, is not deemed to have resigned from his office.
What are the Effects of Filing of Certificate of Candidacy?
Section 44 of COMELEC Resolution No. 11045 provides the effects of filing certificates of candidacy.
Section 44. Effects of Filing of Certificate of Candidacy. –
a) Any person holding a public appointive office or position, including active members of the AFP, and other officers and employees in government-owned-or-controlled corporations, shall be considered ipso facto resigned from the office and must vacate the office at the start of the regular office hours of the day when the aspirant filed the COC.
For purposes of the election of District Representatives in the BARMM Parliament, the incumbent appointed members of the Bangsamoro Transition Authority (BTA), whose positions are elective by nature, are not deemed ipso facto resigned upon the filing of their COCs. Those members of the Parliament who are designated to positions in the Cabinet and other executive officers are likewise not deemed resigned for the same reason.
b) Any person holding an elective office or position shall not be considered resigned upon the filing of a COC whether for the same or any other elective office or position.
In the case of Quinto v. COMELEC (G.R. No. 189698, February 22, 2010), the Supreme Court held that the difference in treatment does not violate the equal protection clause. It held that substantial distinctions clearly exist between elective officials and appointive officials:
“The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.”
Moreover, the Supreme Court, through Justice Puno, noted that there is a rational justification for excluding elected officials from the operation of the deemed resigned provisions. It held:
“An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned.”
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 0917-5772207/ 09778050020.
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