8. De Facto and De Jure Officers

De Facto Officer

One whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons where the duties of the office were exercised:

• without a known appointment or election, but under circumstance of reputation or acquiescence;
• with a known and valid appointment or election, but the officer failed to conform to a legal requirement;
• With a known appointment or election but void because of:
• ineligibility of the officer; or
• want of authority of the appointing or electing authority;
• irregularity in appointment or election not known to the public; or
• With known appointment or election pursuant to an unconstitutional law before adjudged to be such

Requisites

• Valid and legitimate office;
• Actual physical possession of the office in good faith;
• Color of right or general acquiescence by the public

Legal Effects of Acts of De Facto Officers

So far as the rights of a third person are concerned, the lawful acts of a de facto officer if done within the scope and by the apparent authority of the office, is considered valid and binding as if he were the officer legally elected and qualified for the office and in full possession thereof.

Entitlement to Salary

General Rule: Rightful incumbent may recover from a de facto officer the salary received by the latter during the time of wrongful tenure even though the latter is in good faith and under color of title.

Exception: When there is no de jure officer, the de facto officer is entitled to salaries for the period when he actually discharged functions. (Civil Liberties Union v. Executive Secretary, GR No 83896, February 22, 1991)

Explanation: When a de facto officer holds office under color of title, but there is a de jure officer legally entitled to the office, the de jure officer may recover salaries as if he is the actual possessor of the office.

On the other hand, when there is no de jure officer, the de facto officer holding the office may be entitled to the salary.

De Jure Officer

One who has the lawful right to the office in all respects, whether or not the officer actually possesses or exercises it. When the officer de jure is also the officer de facto, the lawful title and possession are united.

Usurper

One who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent. Note that it is the color of authority, not the color of title, that distinguishes an officer de facto from a usurper. Such apparent authority may arise from an irregular or informal election or appointment or, in appropriate circumstances, public reputation or acquiescence despite no known appointment or election.

De Jure v De Facto Officer

A de jure officer has a legal right to the office but he may not be in possession of the office; while a de facto officer possesses the office because of the color of authority.

De Facto v. Usurper

What is a failed state?

One which has not had a government in control of most of the territory for several years. [AUST]

A failed State does not cease to be a State. (See, e.g. Somalia, which has not had an effective government in years, but continues to be recognized by the UN).

Further, some States were deemed States even before their governments were very well- organized (e.g., Poland, Burundi, and Rwanda).

What are governments de facto and de jure?

• Government de jure – government from law, that is, one with a color of legitimacy.
• Government de facto – one that governs without a mandate of law. So long as it is in place, it may command obedience from the inhabitants of the occupied area. The de facto ruler may suspend laws and enact new ones.

What is jus postlimium?

Jus postliminium is the restoration of the legitimate sovereign’s rights and authority upon the end of enemy occupation. Acts (executive, legislative, and judicial) done under the control of a de facto government, when they are not of a political complexion remain good even upon the restoration of the legitimate government. [See Co Kim Cham v. Valdez Tan Keh (November 16, 1945)]