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MEMORANDUM

TO: Rodolfo San Gabriel, Assistant Solicitor

FROM: Loris R. Basilio, Associate Solicitor

CLIENT: Leticia R. Arceo- Manahan, Board Secretary IV TESDA

SUBJECT: Application of Hold Over Doctrine

DATE: 29 November 2018

Purpose

You asked me to research about the possibility of applying the holdover doctrine by analogy to five

TESDA Board members representing the private sector whose term of office have already expired.

Facts

The information requested by Board Secretary IV, Atty Leticia R. Arceo-Manahan pertains to

clarification regarding the matter on whether her colleagues can continue to hold their position as TESDA

Board Members despite the fact that their term has already expired.

Section 2 of RA 7796, provides for a three-year term limit for TESDA Board Members coming from

the private sector. In the present scenario, the three- year term limit given to these TESDA Board Members

had already expired, and that due to the exigency and continuity of public service can a member continue to

occupy the position despite the expiration of his or her term limit as provided in Section 17 of RA 10149.

The said law provides that an appointee shall continue to hold office until his or her successor is appointed. 1

Issue:

Whether or not Section 17 of Republic Act 10149 applies to TESDA Board Members whose terms

had already expired.

1 Rep. Act. No 10149 (2010), section 17.


Brief Answer

Yes. In the interest of public exigency and continuity of public service, the TESDA Board Members

can still be allowed to remain in their position until there is a reappointment or until their successors or

replacements are appointed by the President.

Rules Governing Hold Over Capacity

SEC. 17. Term of Office.—Any provision in the charters of each GOCC


to the contrary notwithstanding, the term of office of each Appointive
Director shall be for one (1) year, unless sooner removed for
cause: Provided, however, That the Appointive Director shall continue
to hold office until the successor is appointed. An Appointive Director
may be nominated by the GCG for reappointment by the President only
if one obtains a performance score of above average or its equivalent or
higher in the immediately preceding year of tenure as Appointive
Director based on the performance criteria for Appointive Directors for
the GOCC.2

Analysis

The main principle of the hold over doctrine is that an office does not become vacant upon the

expiration of the term of the incumbent if there is no successor who is elected and qualified to assume the

position. Therefore, the present incumbent would continue to hold over that position until his or her

successor is appointed or he himself is reappointed for that position even though it is beyond the term limit as

provided by law.3

The holdover period is not a part of the term of office of TESDA Board Members. Jurisprudence has

differentiated the concept of “term” from “tenure”. Term is defined as the time during which the officer may

claim to hold the office as of right. Tenure, on the other hand is defined as the term during which the

incumbent actually holds office. 4 The term of office is fixed by law and does not simply change just because

it has become vacant or the incumbent holds office beyond the end of his or her term due to the fact that his

or her successor has yet to be elected or failed to qualify for the position. As provided in Article 17 of RA

10149:

2 id
3 Lecaroz v. Sandiganbayan, GR 130872, March 3, 1999.
4 Valle Verde Country Club et al v. Africa, GR 151969, September 4, 2009.
That the Appointive Director shall continue to hold office until the
successor is appointed. An Appointive Director may be nominated by
the GCG for reappointment by the President only if one obtains a
performance score of above average or its equivalent or higher in the
immediately preceding year of tenure as Appointive Director based on
the performance criteria for Appointive Directors for the GOCC.5

Though Section 2 of Republic Act 7796, only provides for a three-year fixed term 6 for members

coming from the private sector exigency and continuity of service calls for a holdover capacity until

reappointment or when successors or replacements are appointed. 7 Based on the forgoing, Section 17 of RA

10149 can be construed to mean that the holdover period cannot constitute as a part of an incumbent’s term

but it should be construed as a part of his tenure. Therefore, there will be no violation with regard to his

extension of term since a term is fixed by law and not due to the fact that an incumbent official is occupying

a position despite the expiration of his or her term.

Conclusion/Recommendation

The term limit of public officials is provided by law. In the present case, the Board Members

representing the private sector from TESDA are given a term of three years. Generally, upon the expiration

of the term, unless provided by law these officials are to be considered as terminated from service upon the

lapse of their term. However, in the present case, there is a law particularly Section 17 of RA 10149 which

provides for a holdover capacity till a successor is appointed for the incumbent’s position. Hence, this would

mean that the tenure of an official depends on the power of the appointing authority, which in this case is the

president.

To summarize, the concept of term is different from tenure. A term is not extended by the fact that an

official continues to hold office despite its expiration. An office does not become vacant upon the expiration

of the term if there is no successor elected and qualified to assume it. Therefore, till a successor has yet to be

appointed an incumbent official can still occupy his position though it beyond the term limit as prescribed by

law.

5 Rep. Act. No 10149 (2010), Section 17.


6 Rep. Act. No 7796(1994), Section 2
7 Id