Security of Tenure vs Abandonment: Reinstatement Rights in the Philippine National Police

The Supreme Court has long protected the constitutional right to security of tenure for public officers. But what happens when an illegally removed officer accepts another government position while fighting for reinstatement? Does that new job amount to abandonment of the old one? In Canonizado v. Aguirre (G.R. No. 133132, February 15, 2001), the Court addressed this question squarely, ruling that accepting a second post under such circumstances does not automatically forfeit a claim to reinstatement.

The Case: Removal of NAPOLCOM Commissioners

The petitioners were Commissioners of the National Police Commission (NAPOLCOM) whose terms were deemed expired by Section 8 of Republic Act No. 8551, the law reorganizing the Philippine National Police. They challenged the provision as a violation of their security of tenure under the Constitution. The Court agreed, striking down Section 8 as unconstitutional and ordering the petitioners' reinstatement with full backwages.

One petitioner, Alexis C. Canonizado, had accepted an appointment as Inspector General of the PNP's Internal Affairs Service while the case was pending. The respondents argued that this appointment—to a position incompatible with NAPOLCOM Commissioner—amounted to abandonment of his claim to the original office.

What Constitutes Abandonment of Office

Abandonment is the voluntary relinquishment of an office with the intention of terminating possession and control over it. The Court emphasized two essential elements: (1) an intention to abandon, and (2) an overt act carrying that intention into effect. Crucially, abandonment must be total and under circumstances clearly indicating an absolute relinquishment. Nonperformance of duties does not constitute abandonment when it results from involuntary failure to perform.

Here, Canonizado did not voluntarily leave his post. He was compelled to do so by an unconstitutional provision of law. He filed his petition just weeks after the law took effect, showing no intention to surrender his rights. The Court cited the principle that when a public officer vacates an office in deference to a statute later declared unconstitutional, that surrender is not deemed abandonment.

The Rule on Incompatible Offices

Generally, accepting a second office incompatible with the first results in the automatic vacation of the first. However, this rule did not apply because Canonizado never discharged the functions of both offices simultaneously. He had already ceased to be a Commissioner when he became Inspector General. The incompatibility rule presupposes concurrent occupancy, which was absent here.

The Court drew parallels to Tan v. Gimenez and Gonzales v. Hernandez, where illegally removed officers who took other government jobs during their appeals were not deemed to have abandoned their original positions. The "right to live"—including the right to lead a useful and productive life—justifies accepting other employment while pursuing reinstatement. However, before reassuming the original post, the officer must first resign from the second position.

Consequences of an Unconstitutional Act

An unconstitutional act confers no rights and affords no protection. All acts done pursuant to it are null and void. Since Section 8 of RA 8551 was void, the petitioners' removal was a nullity, and their positions never became vacant. Consequently, the appointments of replacement commissioners were also void, as there can be no valid appointment to a non-vacant position.

The Court also clarified that respondent Jose Percival L. Adiong, who had been re-appointed under the void provision, was entitled to reinstatement to the remainder of his original term under RA 6975.

Practical Takeaways

• Accepting another government position while contesting an illegal dismissal does not automatically mean abandonment—the key is whether there was a voluntary intention to relinquish the original office.
• An unconstitutional law is void from the start; removals and appointments made under it are legal nullities.
• The incompatibility of offices rule only applies when a person holds both positions concurrently, not when one was already vacated due to an invalid law.
• Officers who accept a second post during litigation must resign from it before reassuming their original position.
• Promptly filing a case to challenge removal is strong evidence against any claim of abandonment.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.