Republic of the Philippines SUPREME COURT Manila EN BANC

Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents. Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.

G.R. No. 83896 February 22, 1991 CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent. G.R. No. 83815 February 22, 1991 ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and

Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are: Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman. Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive Department

holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other than his primary position. Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary. Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which provides as follows: Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall

strictly avoid conflict of interest in the conduct of their office. It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No. 83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition andmandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such positions. Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by

law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6 Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers one, the President and her official family, and the other, public servants in general allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by example." 7 Article IX-B, Section 7, par. (2) 8 provides: Sec. 7. . . . . . Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10being the first official construction and interpretation by the Secretary of Justice of

Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of appointments or designations of an appointive executive official to positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed by the primary functions of the public official, but only to the holding of multiple positions which are not related to or necessarily included in the position of the public official concerned (disparate positions). In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the Cabinet and their deputies or assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated an exofficio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned. The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries." We rule in the negative. A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution

should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. 11 The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these instrumentalities have remained up to the present time. This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in reaction to the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned

and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations as of December 31, 1983." Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10) each. 13 The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive compensation therefrom would be discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government,including government-owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government." It is quite notable that in all these provisions on disqualifications to hold other office or employment, the

prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, VicePresident, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive

Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their case." 14 Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants. This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant

Secretary downwards, on the other, may hold any other office or position in the government during their tenure. Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article IXB is absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution authorizing the VicePresident to become a member of the Cabinet, 15 and to act as President without relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to qualify. 16 Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII. It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. 17Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. 19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. 20 Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being exofficio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required 22 by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties

and functions on said officials. 23 To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited. The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies. The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in the areas of money, banking and credit. 25 Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26 To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional

compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office." 27 An exofficio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment.28 To illustrate, by express provision of law, the Secretary of Transportation and Communications is the exofficioChairman of the Board of the Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30 The Court had occasion to explain the meaning of an exofficio position in Rafael vs. Embroidery and Apparel Control and Inspection Board, 31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments." 32 The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function.

The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board. If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their subsidiaries. Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet

members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties and functions being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be supervision, thereby deprived of the means for control and resulting in an unwieldy and confused bureaucracy. It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor. The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of his position," 36 express reference to certain highranking appointive public officials like members of the Cabinet were made. 37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when although not required by current law, membership of certain high-ranking executive officials in other offices and corporations is necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade and Industry. 38 While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions and duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the article on the Civil Service Commission had been approved on third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only after the draft Constitution had undergone reformatting and "styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission. That this exception would in the final analysis apply also to the President and his official family is by reason of the legal principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary functions may be considered as not constituting "any other office." While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." 43 The proper interpretation therefore depends more on how it was

understood by the people adopting it than in the framers's understanding thereof. 44 It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof. In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-

officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, exofficio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle. Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including governmentowned or controlled corporations and their subsidiaries. With

respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of. During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered. 46 It has been held that "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. 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. 47 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. WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared null and void and is accordingly set aside. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and Davide, Jr., JJ., concur. Sarmiento and Grio-Aquino, JJ., took no part.

1 P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No. 83896. 2 Emphasis supplied. 3 pp. 29-30, Rollo. 4 pp. 10-21, Rollo. 5 Annex "A", Petition, G.R. No. 83815, pp. 2124, Rollo. 6 Thereby, petitioner alleges, eliciting adverse published commentaries from CONCOM Commissioners Fr. Joaquin G. Bernas, S. J. and Regalado E. Maambong, Congressman Rodolfo Albano of Isabela, and retired Supreme Court Justice Felix Q. Antonio, Annexes "D", "E" and "F", Petition, G.R. No. 83815, pp. 4064, Rollo. CONCOM Vice-President Ambrosio B. Padilla, in a published article cited in the annexes, also commented on EO 284. 7 p. 11, Rollo in G.R. No. 83815. 8 Emphasis supplied. 9 Annex "I", Comment, G.R. No. 83896, pp. 6267, Rollo. 10 Annex "2", Ibid., pp. 68-71, Rollo. 11 Maxwell vs. Dow, 176 U.S. 581, 20 Sup. Ct. 448, 44 L. Ed. 597.

Footnotes

12 R.B. No. 95, Monday, March 11, 1985, Record of the Batasan, Volume IV, pp. 835836. 13 pp. 11-14. 14 Record of the 1986 Constitutional Commission, Vol. 1, p. 553. 15 Sec. 3, Ibid.

suggests an imposition, and therefore, obligatory in nature. 23 Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Greenville Sewer District, 173 A.L.R. 407. 24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117. 25 Sec. 20, Art. XII, 1987 Constitution.

16 Sec. 7, Article VII. 17 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed 345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241 P. 879. 18 Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith, 308 Ky 73, 212 SW 2d 521. 19 People vs. Wright, 6 Col. 92. 20 Thomas M. Colley, A Treatise on the Constitutional Limitations, Vol. I, p. 128, citing Attorney-General vs. Detroit and Erin Plank Road Co., 2 Mich. 114; People vs. Burns, 5 Mich. 114 ; District Township vs. Dubuque, 7 Iowa 262. 21 Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22 Tex. App. 396, 3 S.W. 233. 22 As opposed to the term "allowed" used in Section 7, par. (2), Article IX-B of the Constitution, which is permissive. "Required" 26 Hirabayashi vs. United States, 320 U.S. 81, 87 L. Ed. 1774, 63 S. Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator of Wage and Hour Div., 312 U.S. 126, 85 L. Ed. 624, 61 S. Ct. 524; Gage vs. Jordan, 23 Cal 2d 794, 174 P 2d, 287 cited in 16 Am Jur 2d, pp. 100, 464. 27 Black's Law Dictionary, p. 516; 15A Words and Phrases, p. 392. 28 15A Words and Phrases, p. 392. 29 Sec. 7, E.O. 778. 30 Sec. 1, E.O. 210. 31 21 SCRA 336 (1967). 32 Emphasis supplied. 33 33A Words and Phrases, p. 210, citing Collector of Revenue vs. Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145.

34 Sec. 7, P.D. No. 474. 35 Section 17, Article VII. 36 The phrase that appears in the Constitution is not "Unless required by the primary functions" but "Unless otherwise allowed by law or by the primary functions . . ." 37 Record of the 1986 Constitutional Commission, Vol. V, pp. 165-166. 38 Emphasis supplied, Ibid., p. 165. 39 Ibid., Vol. V., pp. 80-81. 40 Ibid., Vol. II, p, 94. 41 Ibid., Vol. III, p. 710. 42 16 Corpus Juris Secundum, 2. 31, p. 105. 43 Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220. 44 Household Finance Corporation vs. Shaffner, 203, S.W. 2d 734. 356 Mo. 808. 45 Now Department of Interior and Local Governments. 46 Castillo vs. Arrieta, G.R. No. L-31444, November 13, 1974, 61 SCRA 55.

47 Patterson vs. Benson, 112 Pac. 801, 32 L.R.A. (NS) 949.

G.R. No. 184740

February 11, 2010

DENNIS A. B. FUNA, Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC. LEANDRO R. MENDOZA, in his official capacity as Secretary of the Department of Transportation and Communications, USEC. MARIA ELENA H. BAUTISTA, in her official capacities as Undersecretary of the Department of Transportation and Communications and as Officer-in-Charge of the Maritime Industry Authority (MARINA), Respondents. DECISION VILLARAMA, JR., J.: This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, to declare as unconstitutional the designation of respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA). The Antecedents

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC), vice Agustin R. Bengzon. Bautista was designated as Undersecretary for Maritime Transport of the department under Special Order No. 2006-171 dated October 23, 2006.1 On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary.2 On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of Bautistas appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment. On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA vice Vicente T. Suazo, Jr.3 and she assumed her duties and responsibilities as such on February 2, 2009.4 The Case Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution, as interpreted and explained by this Court in Civil Liberties Union v. Executive Secretary,5 and reiterated in Public Interest Center, Inc. v. Elma.6 He points out that while it was clarified in

Civil Liberties Union that the prohibition does not apply to those positions held in ex-officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTC Undersecretary, as can be gleaned from the provisions of its charter, Presidential Decree (P.D.) No. 474,7 as amended by Executive Order (EO) No. 125-A.8 Moreover, the provisions on the DOTC in the Administrative Code of 1987, specifically Sections 23 and 24, Chapter 6, Title XV, Book IV do not provide any ex-officio role for the undersecretaries in any of the departments attached agencies. The fact that Bautista was extended an appointment naming her as OIC of MARINA shows that she does not occupy it in an ex-officio capacity since an ex-officio position does not require any "further warrant or appoint."9 Petitioner further contends that even if Bautistas appointment or designation as OIC of MARINA was intended to be merely temporary, still, such designation must not violate a standing constitutional prohibition, citing the rationale in Achacoso v. Macaraig.10 Section 13, Article VII of the 1987 Constitution does not enumerate temporariness as one (1) of the exceptions thereto. And since a temporary designation does not have a maximum duration, it can go on for months or years. In effect, the temporary appointment/designation can effectively circumvent the prohibition. Allowing undersecretaries or assistant secretaries to occupy other government posts would open a Pandoras Box as to let them feast on choice government positions. Thus, in case of vacancy where no permanent appointment could as yet be made, the remedy would be to designate one (1) of the two (2) Deputy Administrators as the Acting Administrator. Such would be the logical course, the said officers being in a better position in terms of knowledge and experience to run the agency in a temporary capacity. Should none of them merit the Presidents confidence, then the practical remedy would be for Undersecretary Bautista to first resign as Undersecretary in

order to qualify her as Administrator of MARINA. As to whether she in fact does not receive or has waived any remuneration, the same does not matter because remuneration is not an element in determining whether there has been a violation of Section 13, Article VII of the 1987 Constitution.11 Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINA Administrator. The reason is that with respect to the affairs in the maritime industry, the recommendations of the MARINA may be the subject of counter or opposing recommendations from the Undersecretary for Maritime Transport. In this case, the DOTC Undersecretary for Maritime Transport and the OIC of MARINA have become one (1) and the same person. There is no more checking and counter-checking of powers and functions, and therein lies the danger to the maritime industry. There is no longer a person above the Administrator of MARINA who will be reviewing the acts of said agency because the person who should be overseeing MARINA, the Undersecretary for Maritime Transport, has effectively been compromised.12 Finally, petitioner contends that there is a strong possibility in this case that the challenge herein can be rendered moot through the expediency of simply revoking the temporary appointment/designation. But since a similar violation can be committed in the future, there exists a possibility of "evading review," and hence supervening events should not prevent the Court from deciding cases involving grave violation of the 1987 Constitution, as this Court ruled in Public Interest Center. Notwithstanding its mootness therefore, should it occur, there is a compelling reason for this case to be decided: the issue raised being "capable of repetition, yet evading review."13 On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there

no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present petition moot and academic. Petitioners prayer for a temporary restraining order or writ of preliminary injunction is likewise moot and academic since, with this supervening event, there is nothing left to enjoin.14 Respondents also raise the lack of legal standing of petitioner to bring this suit. Clear from the standard set in Public Interest Center is the requirement that the party suing as a taxpayer must prove that he has sufficient interest in preventing illegal expenditure of public funds, and more particularly, his personal and substantial interest in the case. Petitioner, however, has not alleged any personal or substantial interest in this case. Neither has he claimed that public funds were actually disbursed in connection with respondent Bautistas designation as MARINA OIC. It is to be noted that respondent Bautista did not receive any salary while she was MARINA OIC. As to the alleged transcendental importance of an issue, this should not automatically confer legal standing on a party.15 Assuming for the sake of argument that the legal question raised herein needs to be resolved, respondents submit that the petition should still be dismissed for being unmeritorious considering that Bautistas concurrent designation as MARINA OIC and DOTC Undersecretary was constitutional. There was no violation of Section 13, Article VII of the 1987 Constitution because respondent Bautista was merely designated acting head of MARINA on September 1, 2008. She was designated MARINA OIC, not appointed MARINA Administrator. With the resignation of Vicente T. Suazo, Jr., the position of MARINA Administrator was left vacant, and pending the appointment of permanent Administrator,

respondent Bautista was designated OIC in a temporary capacity for the purpose of preventing a hiatus in the discharge of official functions. Her case thus falls under the recognized exceptions to the rule against multiple offices, i.e., without additional compensation (she did not receive any emolument as MARINA OIC) and as required by the primary functions of the office. Besides, Bautista held the position for four (4) months only, as in fact when she was appointed MARINA Administrator on February 2, 2009, she relinquished her post as DOTC Undersecretary for Maritime Transport, in acknowledgment of the proscription on the holding of multiple offices.16 As to petitioners argument that the DOTC Undersecretary for Maritime Transport and MARINA Administrator are incompatible offices, respondents cite the test laid down in People v. Green,17 which held that "[T]he offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are compatible at common law." Thus, respondents point out that any recommendation by the MARINA Administrator concerning issues of policy and administration go to the MARINA Board and not the Undersecretary for Maritime Transport. The Undersecretary for Maritime Transport is, in turn, under the direct supervision of the DOTC Secretary. Petitioners fear that there is no longer a person above the Administrator of MARINA who will be reviewing the acts of said agency (the Undersecretary for Maritime Transport) is, therefore, clearly unfounded.18 In his Reply, petitioner contends that respondents argument on the incompatibility of positions was made on the mere assumption that the positions of DOTC Undersecretary for Maritime Transport and the administratorship of MARINA are "closely related" and is governed by Section 7, paragraph 2, Article IX-B of the 1987 Constitutionrather than by Section 13,

Article VII. In other words, it was a mere secondary argument. The fact remains that, incompatible or not, Section 13, Article VII still does not allow the herein challenged designation.19 The sole issue to be resolved is whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members and their deputies and assistants. Our Ruling The petition is meritorious. Requisites for Judicial Review The courts power of judicial review, like almost all other powers conferred by the Constitution, is subject to several limitations, namely: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case, such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.20 Respondents assert that the second requisite is absent in this case. Generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action.21 The question on standing is whether

such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."22 In David v. Macapagal-Arroyo,23 summarizing the rules culled from jurisprudence, we held that taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. [EMPHASIS SUPPLIED.] Petitioner having alleged a grave violation of the constitutional prohibition against Members of the Cabinet, their deputies and assistants holding two (2) or more positions in government, the fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for redress of such illegal act by public officials.

The other objection raised by the respondent is that the resolution of this case had been overtaken by events considering the effectivity of respondent Bautistas appointment as MARINA Administrator effective February 2, 2009 and her relinquishment of her former position as DOTC Undersecretary for Maritime Transport. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.24 However, as we held in Public Interest Center, Inc. v. Elma,25supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public.26 As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.27 In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of the Presidents appointment or designation of a Department Undersecretary as officer-incharge of an attached agency will arise in every such appointment.28 Undersecretary Bautistas designation as MARINA OIC falls under the stricter prohibition under Section 13, Article VII of the 1987 Constitution.

Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution, which provides: Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. On the other hand, Section 7, paragraph (2), Article IX-B reads: Sec. 7. x x x Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. In Civil Liberties Union, a constitutional challenge was brought before this Court to nullify EO No. 284 issued by then President Corazon C. Aquino on July 25, 1987, which included Members of the Cabinet, undersecretaries and assistant secretaries in its provisions limiting to two (2) the positions that appointive officials of the Executive Department may hold in government and government corporations. Interpreting the above provisions in the light of the history and times and the conditions and circumstances under which the Constitution

was framed, this Court struck down as unconstitutional said executive issuance, saying that it actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitutionprohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. Noting that the prohibition imposed on the President and his official family is all-embracing, the disqualification was held to be absolute, as the holding of "any other office" is not qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting Senators and Members of the House of Representatives from holding "any other office or employment in the Government"; and when compared with other officials and employees such as members of the armed forces and civil service employees, we concluded thus: These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore,

more checks and restraints on them are called for because there is more possibility of abuse in their case." Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants. xxxx Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-

officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.29 [EMPHASIS SUPPLIED.] Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another office is allowed by law or the primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive officials specified therein, without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said office. The reason is that these posts do not comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials.30 Apart from their bare assertion that respondent Bautista did not receive any compensation when she was OIC of MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in an ex-officio capacity as required by the primary functions of her office as DOTC Undersecretary for Maritime Transport. MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand E. Marcos on June 1, 1974. It is mandated to undertake the following: (a) Adopt and implement a practicable and coordinated Maritime Industry Development Program which shall include, among others, the early replacement of obsolescent and uneconomic vessels; modernization

and expansion of the Philippine merchant fleet, enhancement of domestic capability for shipbuilding, repair and maintenance; and the development of reservoir of trained manpower; (b) Provide and help provide the necessary; (i) financial assistance to the industry through public and private financing institutions and instrumentalities; (ii) technological assistance; and (iii) in general, a favorable climate for expansion of domestic and foreign investments in shipping enterprises; and (c) Provide for the effective supervision, regulation and rationalization of the organizational management, ownership and operations of all water transport utilities, and other maritime enterprises.31 The management of MARINA is vested in the Maritime Administrator, who shall be directly assisted by the Deputy Administrator for Planning and a Deputy Administrator for Operations, who shall be appointed by the President for a term of six (6) years. The law likewise prescribes the qualifications for the office, including such "adequate training and experience in economics, technology, finance, law, management, public utility, or in other phases or aspects of the maritime industry," and he or she is entitled to receive a fixed annual salary.32 The Administrator shall be directly responsible to the Maritime Industry Board, MARINAs governing body, and shall have powers, functions and duties as provided in P.D. No. 474, which provides, under Sections 11 and 12, for his or her general and specific functions, respectively, as follows: Sec. 11. General Powers and Functions of the Administrator. Subject to the general supervision and control of the Board,

the Administrators shall have the following general powers, functions and duties; a. To implement, enforce and apply the policies, programs, standards, guidelines, procedures, decisions and rules and regulations issued, prescribed or adopted by the Board pursuant to this Decree; b. To undertake researches, studies, investigations and other activities and projects, on his own initiative or upon instructions of the Board, and to submit comprehensive reports and appropriate recommendations to the Board for its information and action; c. To undertake studies to determine present and future requirements for port development including navigational aids, and improvement of waterways and navigable waters in consultation with appropriate agencies; d. To pursue continuing research and developmental programs on expansion and modernization of the merchant fleet and supporting facilities taking into consideration the needs of the domestic trade and the need of regional economic cooperation schemes; and e. To manage the affairs of the Authority subject to the provisions of this Decree and applicable laws, orders, rules and regulations of other appropriate government entities. Sec. 12. Specific Powers and Functions of the Administrator. In addition to his general powers and functions, the Administrator shall;

a. Issue Certificate of Philippine Registry for all vessels being used in Philippine waters, including fishing vessels covered by Presidential Decree No. 43 except transient civilian vessels of foreign registry, vessels owned and/or operated by the Armed Forces of the Philippines or by foreign governments for military purposes, and bancas, sailboats and other watercraft which are not motorized, of less than three gross tons; b. Provide a system of assisting various officers, professionals, technicians, skilled workers and seamen to be gainfully employed in shipping enterprises, priority being given to domestic needs; c. In collaboration and coordination with the Department of Labor, to look into, and promote improvements in the working conditions and terms of employment of the officers and crew of vessels of Philippine registry, and of such officers and crew members who are Philippine citizens and employed by foreign flag vessels, as well as of personnel of other shipping enterprises, and to assist in the settlement of disputes between the shipowners and ship operators and such officers and crew members and between the owner or manager of other shipping enterprises and their personnel; d. To require any public water transport utility or Philippine flag vessels to provide shipping services to any coastal areas in the country where such services are necessary for the development of the area, to meet emergency sealift requirements, or when public interest so requires; e. Investigate by itself or with the assistance of other appropriate government agencies or officials, or

experts from the private sector, any matter within its jurisdiction, except marine casualties or accidents which shall be undertaken by the Philippine Coast Guard; f. Impose, fix, collect and receive in accordance with the schedules approved by the Board, from any shipping enterprise or other persons concerned, such fees and other charges for the payment of its services; g. Inspect, at least annually, the facilities of port and cargo operators and recommend measures for adherence to prescribed standards of safety, quality and operations; h. Approve the sale, lease or transfer of management of vessels owned by Philippine Nationals to foreign owned or controlled enterprises; i. Prescribe and enforce rules and regulations for the prevention of marine pollution in bays, harbors and other navigable waters of the Philippines, in coordination with the government authorities concerned; j. Establish and maintain, in coordination with the appropriate government offices and agencies, a system of regularly and promptly producing, collating, analyzing and disseminating traffic flows, port operations, marine insurance services and other information on maritime matters; k. Recommend such measures as may be necessary for the regulation of the importation into and exportation from the Philippines of vessels, their equipment and spare parts;

l. Implement the rules and regulations issued by the Board of Transportation; m. Compile and codify all maritime laws, orders, rules and regulations, decisions in leasing cases of courts and the Authoritys procedures and other requirements relative to shipping and other shipping enterprises, make them available to the public, and, whenever practicable to publish such materials; n. Delegate his powers in writing to either of the Deputy Administrators or any other ranking officials of the Authority; Provided, That he informs the Board of such delegation promptly; and o. Perform such other duties as the Board may assign, and such acts as may be necessary and proper to implement this Decree. With the creation of the Ministry (now Department) of Transportation and Communications by virtue of EO No. 546, MARINA was attached to the DOTC for policy and program coordination on July 23, 1979. Its regulatory function was likewise increased with the issuance of EO No. 1011 which abolished the Board of Transportation and transferred the quasi-judicial functions pertaining to water transportation to MARINA. On January 30, 1987, EO No. 125 (amended by EO No. 125-A) was issued reorganizing the DOTC. The powers and functions of the department and the agencies under its umbrella were defined, further increasing the responsibility of MARINA to the industry. Republic Act No. 9295, otherwise known as the "The Domestic Shipping Development Act of 2004,"33 further strengthened MARINAs regulatory powers and functions in the shipping sector.

Given the vast responsibilities and scope of administration of the Authority, we are hardly persuaded by respondents submission that respondent Bautistas designation as OIC of MARINA was merely an imposition of additional duties related to her primary position as DOTC Undersecretary for Maritime Transport. It appears that the DOTC Undersecretary for Maritime Transport is not even a member of the Maritime Industry Board, which includes the DOTC Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the following as members: Executive Secretary (Office of the President), Philippine Ports Authority General Manager, Department of National Defense Secretary, Development Bank of the Philippines General Manager, and the Department of Trade and Industry Secretary.34 Finally, the Court similarly finds respondents theory that being just a "designation," and temporary at that, respondent Bautista was never really "appointed" as OIC Administrator of MARINA, untenable. In Binamira v. Garrucho, Jr.,35 we distinguished between the terms appointment and designation, as follows: Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is

said that appointment is essentially executive while designation is legislative in nature. Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.36 [emphasis supplied.] Clearly, respondents reliance on the foregoing definitions is misplaced considering that the above-cited case addressed the issue of whether petitioner therein acquired valid title to the disputed position and so had the right to security of tenure. It must be stressed though that while the designation was in the nature of an acting and temporary capacity, the words "hold the office" were employed. Such holding of office pertains to both appointment and designation because the appointee or designate performs the duties and functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible offices, refers to the holding of the office, and not to the nature of the appointment or designation, words which were not even found in Section 13, Article VII nor in Section 7, paragraph 2, Article IX-B. To "hold" an office means to "possess or occupy" the same, or "to be in possession and administration,"37 which implies nothing less than the actual discharge of the functions and duties of the office.1avvphi1 The disqualification laid down in Section 13, Article VII is aimed at preventing the concentration of powers in the Executive Department officials, specifically the President, Vice-President, Members of the Cabinet and their deputies

and assistants. Civil Liberties Union traced the history of the times and the conditions under which the Constitution was framed, and construed the Constitution consistent with the object sought to be accomplished by adoption of such provision, and the evils sought to be avoided or remedied. We recalled the practice, during the Marcos regime, of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned or controlled corporations. This practice of holding multiple offices or positions in the government led to abuses by unscrupulous public officials, who took advantage of this scheme for purposes of self-enrichment. The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission would draft into the proposed Constitution the provisions under consideration, which were envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment.38 Our declaration in that case cannot be more explicit: But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the

intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned.39 [emphasis supplied.] Such laudable intent of the law will be defeated and rendered sterile if we are to adopt the semantics of respondents. It would open the veritable floodgates of circumvention of an important constitutional disqualification of officials in the Executive Department and of limitations on the Presidents power of appointment in the guise of temporary designations of Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-owned or controlled corporations. As to respondents contention that the concurrent positions of DOTC Undersecretary for Maritime Transport and MARINA OIC Administrator are not incompatible offices, we find no necessity for delving into this matter. Incompatibility of offices is irrelevant in this case, unlike in the case of PCGG Chairman Magdangal Elma in Public Interest Center, Inc. v. Elma.40 Therein we held that Section 13, Article VII is not applicable to the PCGG Chairman or to the Chief Presidential Legal Counsel, as he is not a cabinet member, undersecretary or assistant secretary.41 WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID. No costs.

SO ORDERED. MARTIN S. VILLARAMA, JR. Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice (No Part) RENATO C. CORONA* Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice JOSE PORTUGAL PEREZ

ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice

ARTURO D. BRION Associate Justice

LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice

Associate Justice JOSE CATRAL MENDOZA Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

PROVIDING FOR THE REORGANIZATION OF MARITIME FUNCTIONS IN THE PHILIPPINES, CREATING THE MARITIME INDUSTRY AUTHORITY, AND FOR OTHER PURPOSES, approved on June 1, 1974.
8

Approved on April 13, 1987. Rollo, pp. 14-27. G.R. No. 93023, March 13, 1991, 195 SCRA 235. Rollo, pp. 34-37. Id. at 38-40. Id. at 40-42. Id. at 86-87. Id. at 88-89. Id. at 90-93. 13 Sickels 295, 58 N.Y. 295, 1874 WL 11282 (N.Y.). Id. at 93-95. Id. at 127-128.

10

11

12

13

14

Footnotes
*

15

No Part. Rollo, pp. 99 and 101. Id. at 100. Id. at 102. Id. at 103-104.

16

17

18

19

20

G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.
6

G.R. No. 138965, June 30, 2006, 494 SCRA 53.

Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R. Nos. 160261-160263, 160277, 160292, 160295, 160310, 160318, 160342, 160343, 160360, 160365, 160370, 160376, 160392, 160397, 160403 and

160405, November 10, 2003, 415 SCRA 44, 133 citing Angara v. Electoral Commission, 63 Phil. 139 (1936).
21

Supt. Acop v. Secretary Guingona, Jr., 433 Phil. 62 (2002), Viola v. Hon. Alunan III, 343 Phil. 184 (1997) and Alunan III v. Mirasol, 342 Phil. 467 (1997).
28

Tolentino v. COMELEC, 465 Phil. 385, 402 (2004).

Id. at 593.

22

Kilosbayan, Incorporated v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663 (1962).
23

29

Civil Liberties Union v. Executive Secretary, supra at 328-329, 331.

30

G.R. No. 171396 and six (6) other cases, May 3, 2006, 489 SCRA 160, 220-221.
24

Id. at 331-332. P.D. No. 474, Sec. 2. Id., Secs. 8 and 9.

31

David v. Macapagal-Arroyo, supra at 213-214, citing Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129, Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA 91; Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590, Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21 and Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
25

32

33

AN ACT PROMOTING THE DEVELOPMENT OF PHILIPPINE DOMESTIC SHIPPING, SHIPBUILDING, SHIP REPAIR AND SHIP BREAKING, ORDAINING REFORMS IN GOVERNMENT POLICIES TOWARDS SHIPPING IN THE PHILIPPINES, AND FOR OTHER PURPOSES, approved on May 3, 2004.
34

G.R. No. 138965, June 30, 2006, 494 SCRA 53.

Reference: 2006 MARINA Annual Report, sourced from the Internet athttp://www.marina.gov.ph/services/results.aspx?k=M ARINA%20annual%20report&start1=1>.
35

26

Id. at 58, citing Province of Batangas v. Romulo, supra at 757 and Chavez v. Public Estates Authority, 433 Phil. 506, 522 (2002).
27

G.R. No. 92008, July 30, 1990, 188 SCRA 154. Id. at 158-159. BLACKS LAW DICTIONARY, Eighth Edition, p. 749.

36

Pimentel, Jr. v. Ermita, G.R. No. 164978, October 13, 2005, 472 SCRA 587, 593, citing Tolentino v. Commission on Elections, G.R. No. 148334, January 21, 2004, 420 SCRA 438, Gil v. Benipayo, G.R. No. 148179, June 26, 2001 (Unsigned Resolution), Chief

37

38

Civil Liberties Union v. Executive Secretary, supra at 326-327.

39

Id. at 327. Supra note 6. Id. at 62.

40

DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M. VIARI, Petitioners,

G. R. No. 175352 Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. Promulgated: January 18, 2011

41

- versus -

Republic of the Philippines Supreme Court Manila EN BANC RICHARD J. GORDON, Respondent. PHILIPPINE NATIONAL RED CROSS, Intervenor.

x-------------------------------------------------x

RESOLUTION

LEONARDO-DE CASTRO, J.:

This resolves the Motion for Clarification and/or for Reconsideration[1] filed on August 10, 2009 by respondentRichard J. Gordon (respondent) of the Decision promulgated by this Court on July 15, 2009
[2]

(the

Decision), on August

the Motion 27,

for Partial

Reconsideration filed

2009 by movant-

Cross is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private corporation or grant it corporate powers.[7] In his Motion for Clarification and/or for Reconsideration, respondent raises the following grounds: (1) as the issue of constitutionality of Republic Act (R.A.) No. 95 was not raised by the parties, the Court went beyond the case in deciding such issue; and (2) as the Court decided that Petitioners did not have standing to file the instant Petition, the pronouncement of the Court on the validity of R.A. No. 95 should be considered obiter.[8] Respondent argues that the validity of R.A. No. 95 was a non-issue; therefore, it was unnecessary for the Court to decide on that question. Respondent cites Laurel v. Garcia,[9] wherein the Court said that it will not pass upon a constitutional question although properly presented by the record if the case can be disposed of on some other ground and goes on to claim that since this Court, in the Decision, disposed of the petition on some other ground, i.e., lack of standing of petitioners, there was no need for it to delve into the validity of R.A. No. 95, and the rest of the judgment should be deemed obiter.

intervenor Philippine National Red Cross (PNRC), and the latters Manifestation and Motion to Admit Attached Position Paper filed on December 23, 2009. In the Decision, the Court held that respondent did not forfeit his seat in the Senate when he accepted the chairmanship of the PNRC Board of Governors, as the office of the PNRC Chairman is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.
[5] [4] [3]

The Decision, however,

further declared void the PNRC Charter insofar as it creates the PNRC as a private corporation and consequently ruled that the PNRC should incorporate under the Corporation Code and register with the Securities and Exchange Commission if it wants to be a private corporation.[6] The dispositive portion of the Decision reads as follows: WHEREFORE, we declare that the office of the Chairman of the Philippine National Red

NOT QUALIFY AS STRICTLY PRIVATE IN CHARACTER. In its Motion for Partial Reconsideration, PNRC prays that the Court sustain the constitutionality of its Charter on the following grounds: A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL REPUBLIC ACT NO. 95 AS AMENDED DEPRIVED INTERVENOR PNRC OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS. 1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT CONTROVERSY. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS AMENDED WAS NEVER AN ISSUE IN THIS CASE. In his Comment and Manifestation[10] filed on November 9, 2009, respondent manifests: (1) that he agrees with the position taken by the PNRC in its Motion for Partial Reconsideration dated August 27, 2009; and (2) as of the writing of said Comment and Manifestation, there was pending before the Congress of the Philippines a proposed bill entitled An Act Recognizing the PNRC as an Independent, Autonomous, Non-Governmental Organization Auxiliary to the Authorities of the Republic of the Philippines in the Humanitarian Field, to be Known as The Philippine Red Cross.[11] After a thorough study of the arguments and points raised by the respondent as well as those of movant-intervenor in their respective motions, we have reconsidered our pronouncements in our Decision dated July 15, 2009 with regard to the nature of the PNRC and the constitutionality of some provisions of the PNRC Charter, R.A. No. 95, as amended. As correctly pointed out in respondents Motion, the issue of constitutionality of R.A. No. 95 was not raised by the parties, and was not among the issues defined in the body of the Decision; thus, it was not the very lis mota of the case. We have reiterated the rule as to when the Court will consider the issue of constitutionality in Alvarez v. PICOP Resources, Inc.,[12] thus:

2.

B.

THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO. 1264 AND NOT REPUBLIC ACT NO. 95. PRESIDENTIAL DECREE NO. 1264 WAS NOT A CREATION OF CONGRESS. PNRCS STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN. WHILE IT IS PERFORMING HUMANITARIAN FUNCTIONS AS AN AUXILIARY TO GOVERNMENT, IT IS A NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF GOVERNMENT CONTROL, YET IT DOES

C.

was enacted on March 22, 1947 during the effectivity of the 1935 This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the partiesand that when it is raised, if the record also presents some other ground upon which the court may [rest] its judgment, that course will be adopted and the constitutional question will be left for consideration until such question will be unavoidable.[13] Constitution, which provided for a proscription against the creation of private corporations by special law, to wit: SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations, unless such corporations are owned and controlled by the Government or any subdivision or instrumentality thereof. (Art. XIV, 1935 Constitution.) Similar provisions are found in Article XIV, Section 4 of the 1973 Under the rule quoted above, therefore, this Court should not have declared void certain sections of R.A. No. 95, as amended by Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC Charter. Instead, the Court should have exercised judicial restraint on this matter, especially since there was some other ground upon which the Court could have based its judgment. Furthermore, the PNRC, the entity most adversely affected by this declaration of unconstitutionality, which was not even originally a party to this case, was being compelled, as a consequence of the Decision, to suddenly reorganize and incorporate under the Corporation Code, after more than sixty (60) years of existence in this country. Its existence as a chartered corporation remained unchallenged on ground of unconstitutionality notwithstanding that R.A. No. 95 Since its enactment, the PNRC Charter was amended several times, particularly on June 11, 1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of several laws relating to the PNRCs corporate existence notwithstanding the effectivity of the constitutional proscription on SECTION 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. Constitution and Article XII, Section 16 of the 1987 Constitution. The latter reads:

the creation of private corporations by law, is a recognition that the PNRC is not strictly in the nature of a private corporation contemplated by the aforesaid constitutional ban. A closer look at the nature of the PNRC would show that there is none like it not just in terms of structure, but also in terms of history, public service and official status accorded to it by the State and the international community. There is merit in PNRCs contention that its structure is sui generis. The PNRC succeeded the chapter of the American Red Cross which was in existence in the Philippines since 1917. It was created by an Act of Congress after the Republic of the Philippines became an independent nation on July 6, 1946 and proclaimed on February 14, 1947 its adherence to the Convention of Geneva of July 29, 1929 for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field (the Geneva Red Cross Convention). By that action the Philippines indicated its desire to participate with the nations of the world in mitigating the suffering caused by war and to establish in the Philippines a voluntary organization for that purpose and like other volunteer organizations established in other countries which have ratified the Geneva Conventions, to promote the health and welfare of the people in peace and in war.[14]

The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and further amended by P.D. Nos. 1264 and 1643, show the historical background and legal basis of the creation of the PNRC by legislative fiat, as a voluntary organization impressed with public interest. Pertinently R.A. No. 95, as amended by P.D. 1264, provides: WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894, the nations of the world unanimously agreed to diminish within their power the evils inherent in war; WHEREAS, more than one hundred forty nations of the world have ratified or adhered to the Geneva Conventions of August 12, 1949 for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field and at Sea, The Prisoners of War, and The Civilian Population in Time of War referred to in this Charter as the Geneva Conventions; WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946, and proclaimed on February 14, 1947 its adherence to the Geneva Conventions of 1929, and by the action, indicated its desire to participate with the nations of the world in mitigating the suffering caused by war and to establish in the Philippines a voluntary organization for that purpose as contemplated by the Geneva Conventions; WHEREAS, there existed in the Philippines since 1917 a chapter of the American National Red

Cross which was terminated in view of the independence of the Philippines; and WHEREAS, the volunteer organizations established in other countries which have ratified or adhered to the Geneva Conventions assist in promoting the health and welfare of their people in peace and in war, and through their mutual assistance and cooperation directly and through their international organizations promote better understanding and sympathy among the people of the world; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, do hereby decree and order that Republic Act No. 95, Charter of the Philippine National Red Cross (PNRC) as amended by Republic Acts No. 855 and 6373, be further amended as follows: Section 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the Geneva Conventions and to perform such other duties as are inherent upon a national Red Cross Society. The national headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied.)

The significant public service rendered by the PNRC can be gleaned from Section 3 of its Charter, which provides: Section 3. That the purposes Corporation shall be as follows: of this

(a) To provide volunteer aid to the sick and wounded of armed forces in time of war, in accordance with the spirit of and under the conditions prescribed by the Geneva Conventions to which the Republic of the Philippines proclaimed its adherence; (b) For the purposes mentioned in the preceding sub-section, to perform all duties devolving upon the Corporation as a result of the adherence of the Republic of the Philippines to the said Convention; (c) To act in matters of voluntary relief and in accordance with the authorities of the armed forces as a medium of communication between people of the Republic of the Philippines and their Armed Forces, in time of peace and in time of war, and to act in such matters between similar national societies of other governments and the Governments and people and the Armed Forces of the Republic of the Philippines; (d) To establish and maintain a system of national and international relief in time of peace and in time of war and apply the same in meeting and emergency needs caused by typhoons, flood, fires, earthquakes, and other natural disasters and to devise

and carry on measures for minimizing the suffering caused by such disasters; (e) To devise and promote such other services in time of peace and in time of war as may be found desirable in improving the health, safety and welfare of the Filipino people; (f) To devise such means as to make every citizen and/or resident of the Philippines a member of the Red Cross.

The PNRC works closely with the ICRC and has been involved in humanitarian activities in the Philippines since 1982. Among others, these activities in the country include: 1. Giving protection and assistance to civilians displaced or otherwise affected by armed clashes between the government and armed opposition groups, primarily in Mindanao; 2. Working to minimize the effects of armed hostilities and violence on the population; 3. 4. Visiting detainees; and Promoting awareness of international humanitarian law in the public and private sectors.[16] National Societies such as the PNRC act as auxiliaries to the public authorities of their own countries in the humanitarian field and provide a range of services including disaster relief and health and social programmes. The International Federation of Red Cross (IFRC) and Red Crescent Societies (RCS) Position Paper,[17] submitted by the PNRC, is instructive with regard to the elements of the specific nature of the National Societies such as the PNRC, to wit: National Societies, such as the Philippine National Red Cross and its sister Red Cross and Red

The PNRC is one of the National Red Cross and Red Crescent Societies, which, together with the International Committee of the Red Cross (ICRC) and the IFRC and RCS, make up the International Red Cross and Red Crescent Movement (the Movement). They constitute a worldwide humanitarian movement, whose mission is: [T]o prevent and alleviate human suffering wherever it may be found, to protect life and health and ensure respect for the human being, in particular in times of armed conflict and other emergencies, to work for the prevention of disease and for the promotion of health and social welfare, to encourage voluntary service and a constant readiness to give help by the members of the Movement, and a universal sense of solidarity towards all those in need of its protection and assistance.[15]

Crescent Societies, have certain specificities deriving from the 1949 Geneva Convention and the Statutes of the International Red Cross and Red Crescent Movement (the Movement). They are also guided by the seven Fundamental Principles of the Red Cross and Red Crescent Movement: Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity and Universality. A National Society partakes of a sui generis character. It is a protected component of the Red Cross movement under Articles 24 and 26 of the First Geneva Convention, especially in times of armed conflict. These provisions require that the staff of a National Society shall be respected and protected in all circumstances. Such protection is not ordinarily afforded by an international treaty to ordinary private entities or even non-governmental organisations (NGOs). This sui generis character is also emphasized by the Fourth Geneva Convention which holds that an Occupying Power cannot require any change in the personnel or structure of a National Society. National societies are therefore organizations that are directly regulated by international humanitarian law, in contrast to other ordinary private entities, including NGOs. xxxx In addition, National Societies are not only officially recognized by their public authorities as voluntary aid societies, auxiliary to the public authorities in the humanitarian field, but also benefit from recognition at the International level. This is considered to be an element distinguishing National

Societies from other organisations (mainly NGOs) and other forms of humanitarian response. x x x. No other organisation belongs to a world-wide Movement in which all Societies have equal status and share equal responsibilities and duties in helping each other. This is considered to be the essence of the Fundamental Principle of Universality. Furthermore, the National Societies are considered to be auxiliaries to the public authorities in the humanitarian field. x x x. The auxiliary status of [a] Red Cross Society means that it is at one and the same time a private institution and a public service organization because the very nature of its work implies cooperation with the authorities, a link with the State. In carrying out their major functions, Red Cross Societies give their humanitarian support to official bodies, in general having larger resources than the Societies, working towards comparable ends in a given sector. x x x No other organization has a duty to be its governments humanitarian partner while remaining independent.[18] (Emphases ours.)

It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained valid and effective from the time of its enactment in March 22, 1947 under the 1935 Constitution and

during the effectivity of the 1973 Constitution and the 1987 Constitution.

cooperatives which are private corporations, in order to implement the States avowed policy. In the Decision of July 15, 2009, the Court recognized the

The PNRC Charter and its amendatory laws have not been questioned or challenged on constitutional grounds, not even in this case before the Court now.

public service rendered by the PNRC as the governments partner in the observance of its international commitments, to wit: The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is to bring timely, effective, and compassionate humanitarian assistance for the most vulnerable without consideration of nationality, race, religion, gender, social status, or political affiliation. The PNRC provides six major services: Blood Services, Disaster Management, Safety Services, Community Health and Nursing, Social Services and Voluntary Service. The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a voluntary organization for the purpose contemplated in the Geneva Convention of 27 July 1929. x x x.[20] (Citations omitted.)

In the Decision, the Court, citing Feliciano v. Commission on Audit,

[19]

explained that the purpose of the constitutional provision

prohibiting Congress from creating private corporations was to prevent the granting of special privileges to certain individuals, families, or groups, which were denied to other groups. Based on the above discussion, it can be seen that the PNRC Charter does not come within the spirit of this constitutional provision, as it does not grant special privileges to a particular individual, family, or group, but creates an entity that strives to serve the common good. Furthermore, a strict and mechanical interpretation of Article XII, Section 16 of the 1987 Constitution will hinder the State in adopting measures that will serve the public good or national interest. It should be noted that a special law, R.A. No. 9520, the Philippine Cooperative Code of 2008, and not the general corporation code, vests corporate power and capacities upon

So must this Court recognize too the countrys adherence to the Geneva Convention and respect the unique status of the PNRC in consonance with its treaty obligations. The Geneva Convention has the force and effect of law.[21] Under the Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land.[22] This

constitutional provision must be reconciled and harmonized with Article XII, Section 16 of the Constitution, instead of using the latter to negate the former. By requiring the PNRC to organize under the Corporation Code just like any other private corporation, the Decision of July 15, 2009 lost sight of the PNRCs special status under international humanitarian law and as an auxiliary of the State, designated to assist it in discharging its obligations under the Geneva Conventions. Although the PNRC is called to be independent under its Fundamental Principles, it interprets such independence as inclusive of its duty to be the governments humanitarian partner. To be recognized in the International Committee, the PNRC must have an autonomous status, and carry out its humanitarian mission in a neutral and impartial manner. However, in accordance with the Fundamental Principle of Voluntary Service of National Societies of the Movement, the PNRC must be distinguished from private and profit-making entities. It is the main characteristic of National Societies that they are not inspired by the desire for financial gain but by individual commitment and devotion to a humanitarian purpose freely chosen or accepted as part of the service that National Societies through its volunteers and/or members render to the Community.
[23]

The PNRC, as a National Society of the International Red Cross and Red Crescent Movement, can neither be classified as an instrumentality of the State, so as not to lose its character of neutrality as well as its independence, nor strictly as a private corporation since it is regulated by international humanitarian law and is treated as an auxiliary of the State.[24] Based on the above, the sui generis status of the PNRC is now sufficiently established. Although it is neither a subdivision, agency, or instrumentality of the government, nor a governmentowned or -controlled corporation or a subsidiary thereof, as succinctly explained in the Decision of July 15, 2009, so much so that respondent, under the Decision, was correctly allowed to hold his position as Chairman thereof concurrently while he served as a Senator, such a conclusion does not ipso facto imply that the PNRC is a private corporation within the contemplation of the provision of the Constitution, that must be organized under the Corporation Code. As correctly mentioned by Justice Roberto A. Abad, the sui generis character of PNRC requires us to approach controversies involving the PNRC on a case-to-case basis. In sum, the PNRC enjoys a special status as an important ally and auxiliary of the government in the humanitarian field in accordance with its commitments under international law. This Court cannot all of a sudden refuse to recognize its existence, especially since the issue of the constitutionality of the PNRC

Charter was never raised by the parties. It bears emphasizing that the PNRC has responded to almost all national disasters since 1947, and is widely known to provide a substantial portion of the countrys blood requirements. Its humanitarian work is unparalleled. The Court should not shake its existence to the core in an untimely and drastic manner that would not only have negative consequences to those who depend on it in times of disaster and armed hostilities but also have adverse effects on the image of the Philippines in the international community. The sections of the PNRC Charter that were declared void must therefore stay. WHEREFORE, premises considered, respondent Richard J. Gordons Motion for Clarification and/or for for

Cross is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.

SO ORDERED.

TERESITA CASTRO

J.

LEONARDO-DE

Associate Justice

WE CONCUR:

Reconsideration and

movant-intervenor

PNRCs Motion

Partial Reconsideration of the Decision in G.R. No. 175352dated July 15, 2009 are GRANTED. The constitutionality of R.A. No. 95, as amended, the charter of the Philippine National Red Cross, was not raised by the parties as an issue and should not have been passed upon by this Court. The structure of the PNRC issui generis being neither strictly private nor public in nature. R.A. No. 95 remains valid and constitutional in its entirety. The dispositive portion of the Decision should therefore be MODIFIED by deleting the second sentence, to now read as follows: WHEREFORE, we declare that the office of the Chairman of the Philippine National Red See dissenting opinion Carpio ANTONIO T. CARPIO Associate Justice I join the dissent of J. CONCHITA CARPIO MORALES Associate Justice No part RENATO C. CORONA Chief Justice

Associate Justice

Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

I agree with the dissent of J. Carpio MARIA LOURDES P. A. SERENO Associate Justice I join the dissent of J. Carpio ARTURO D. BRION Associate Justice DIOSDADO M. PERALTA Associate Justice CERTIFICATION

LUCAS P. BERSAMIN Associate Justice

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached MARIANO C. DEL CASTILLO in consultation before the case was assigned to the writer of the Associate Justice opinion of the Court.

See my concurring opinion ROBERTO A. ABAD Associate Justice

RENATO C. CORONA Chief Justice MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ

I join J. Carpio in his dissent JOSE C. MENDOZA [1]

Rollo, pp. 256-264.

[2] [3] [4]

Id. at 397-418. Id. at 434-439. Liban v. Gordon, G.R. No. 175352, July 15, 2009, 593

[22]

SCRA 68.
[5]

Section 13, Article VI of the Constitution reads: SEC. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. [6] Liban v. Gordon, supra note 4 at 97-98. [7] Id. at 98. [8] Rollo, p. 256. [9] G.R. Nos. 92013 and 92047, July 25, 1990, 187 SCRA 797, 813. [10] Rollo, pp. 421-431. [11] Id. at 421. [12] G.R. No. 162243, November 29, 2006, 508 SCRA 498. [13] Id. at 552, citing Sotto v. Commission on Elections, 76 Phil. 516, 522 (1946). [14] Whereas clause, Republic Act No. 95 (1947). [15] Pamphlet entitled The Fundamental Principles of the Red Cross and Red Crescent Movement (April 2009), available with the ICRC, http://www.icrc.org. [16] Id. [17] Rollo, pp. 440-442. [18] Id. at 440-441. [19] 464 Phil. 439 (2004). [20] Liban v. Gordon, supra note 4 at 77. [21] Ebro III v. National Labor Relations Commission, 330 Phil. 93, 101 (1996).

[23] [24]

1935 Constitution, ARTICLE II, SECTION 3. The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the Nation. 1973 CONSTITUTION, ARTICLE II, SECTION 3. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. 1987 CONSTITUTION, ARTICLE II, SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Supra note 15. Rollo, p. 433.

FIRST DIVISION

[G.R. No. 145368. April 12, 2002]

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman,respondent.

DECISION KAPUNAN, J.: On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223 constituting a Committee for the preparation of the National Centennial Celebration in 1998. The Committee was mandated to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress.[1] Subsequently, President Fidel V. Ramos issued Executive Order No. 128, reconstituting the Committee for the preparation of the National Centennial Celebrations in 1998. It renamed the Committee as the National Centennial Commission. Appointed to chair the reconstituted Commission was Vice-President Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons.[2] Characterized as an ad-hoc body, the existence of the Commission shall terminate upon the completion of all activities related to the Centennial Celebrations.[3] Like its predecessor Committee, the Commission was tasked to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress. Per Section 6 of the Executive Order, the Commission was also charged with the responsibility to prepare, for approval of the President, a Comprehensive Plan for the Centennial Celebrations within six (6) months from the effectivity of the Executive Order. E.O. No. 128 also contained provisions for staff support and funding:

Sec. 3. The Commission shall be provided with technical and administrative staff support by a Secretariat to be composed of, among others, detailed personnel from the Presidential Management Staff, the National Commission for Culture and the Arts, and the National Historical Institute. Said Secretariat shall be headed by a full time Executive Director who shall be designated by the President. Sec. 4. The Commission shall be funded with an initial budget to be drawn from the Department of Tourism and the presidents Contingent Fund, in an amount to be recommended by the Commission, and approved by the President. Appropriations for succeeding years shall be incorporated in the budget of the Office of the President. Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created.[4] Petitioner was among the nine (9) Expocorp incorporators, who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer. On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate denouncing alleged anomalies in the construction and operation of the Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator Cosetengs privilege speech was referred to the Committee on Accountability of Public Officers and Investigation (The Blue Ribbon Committee) and several other Senate Committees for investigation. On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating an ad hoc and independent citizens committee to investigate all the facts and circumstances surrounding the Philippine centennial projects,

including its component activities. Former Senator Rene A.V. Saguisag was appointed to chair the Committee. On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the Committees recommendations was the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid contract that has caused material injury to government and for participating in the scheme to preclude audit by COA of the funds infused by the government for the implementation of the said contracts all in violation of the anti-graft law.[5] Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended the further investigation by the Ombudsman, and indictment, in proper cases of, among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code. The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report, recommending: 1. that a formal complaint be filed and preliminary investigation be conducted before the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Pea and AK

President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and Regulations; 2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant.[6] In an Order dated April 10, 2000, Pelagio S. Apostol, OICDirector of the Evaluation and Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit and those of his witnesses. On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioning the jurisdiction of said office. In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to dismiss. On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the motion was denied in an Order dated October 5, 2000. On October 25, 2000, petitioner filed the present petition for certiorari. On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a resolution finding probable cause to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEA before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594. The resolution also directed that an information for violation of the said law be filed against Laurel and Pea. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but dismissed the charge against Pea. In a Resolution dated September 24, 2001, the Court issued a temporary restraining order, commanding

respondents to desist from filing any information before the Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral argument. Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because: A. EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED CORPORATION. B. THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE. C. PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT.[7] In addition, petitioner in his reply[8] invokes this Courts decision in Uy vs. Sandiganbayan,[9] where it was held that the jurisdiction of the Ombudsman was limited to cases cognizable

by the Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioners position was purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him. This last contention is easily dismissed. In the Courts decision in Uy, we held that it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan. In its Resolution of February 22, 2000, the Court expounded: The clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 (An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes) which vests upon the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. Thus, repeated references to the Sandiganbayans jurisdiction clearly serve to limit the Ombudsmans and Special Prosecutors authority to cases cognizable by the Sandiganbayan. [Emphasis in the original.] The foregoing ruling in Uy, however, was shortlived. Upon motion for clarification by the Ombudsman in the

same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the rationale for this reversal: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman to take over, at any stage, from any investigatory agency of the government, the investigation of such cases. The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance

and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office. A review of the development of our Ombudsman law reveals this intent. [Emphasis in the original.] Having disposed of this contention, we proceed to the principal grounds upon which petitioner relies. We first

address the argument that petitioner, as Chair of the NCC, was not a public officer. The Constitution[10] describes the Ombudsman and his Deputies as protectors of the people, who shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations. Among the awesome powers, functions, and duties vested by the Constitution[11] upon the Office of the Ombudsman is to [i]nvestigate any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise known as the Ombudsman Act of 1989. Sections 13 and 15(1) of said law respectively provide: SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people shall act promptly on complaints file in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary

jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x. The coverage of the law appears to be limited only by Section 16, in relation to Section 13, supra: SEC 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office. In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations.[12] Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A definition of public officers cited in jurisprudence[13] is that provided by Mechem, a recognized authority on the subject: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.[14] The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office.[15]

Petitioner submits that some of these characteristics not present in the position of NCC Chair, namely: (1) delegation of sovereign functions; (2) salary, since purportedly did not receive any compensation; and continuance, the tenure of the NCC being temporary.

are the he (3)

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nations historical and cultural heritage and resources, as well as artistic creations. In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial Celebrations in 1998: Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important vehicle for fostering nationhood and a strong sense of Filipino identity; Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values; Whereas, the success of the Centennial Celebrations may be insured only through long-range planning and continuous developmental programming; Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly in communication and information dissemination, is necessary for long-range planning and continuous developmental programming; Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the multisectoral components from the business, cultural, and business sectors to serve as effective instruments from the launching and overseeing of this long-term project; x x x. E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the need to strengthen the said Committee to ensure a more coordinated and synchronized celebrations of the Philippine Centennial

Mechem describes the delegation to the individual of some of the sovereign functions of government as [t]he most important characteristic in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.[16] Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. May the functions of the NCC then be described as executive? We hold that the NCC performs executive functions. The executive power is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance.[17] The executive function, therefore, concerns the implementation of the policies as set forth by law. The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports) thereof:

and wider participation from the government and nongovernment or private organizations. It also referred to the need to rationalize the relevance of historical links with other countries. The NCC was precisely created to execute the foregoing policies and objectives, to carry them into effect. Thus, the Commission was vested with the following functions: (a) To undertake the overall study, conceptualization, formulation and implementation of programs and projects on the utilization of culture, arts, literature and media as vehicles for history, economic endeavors, and reinvigorating the spirit of national unity and sense of accomplishment in every Filipino in the context of the Centennial Celebrations. In this regard, it shall include a Philippine National Exposition 98 within Metro Manila, the original eight provinces, and Clark Air Base as its major venues; To act as principal coordinator for all the activities related to awareness and celebration of the Centennial; To serve as the clearing house for the preparation and dissemination of all information about the plans and events for the Centennial Celebrations; To constitute working groups which shall undertake the implementation of the programs and projects; To prioritize the refurbishment of historical sites and structures nationwide. In this regard, the Commission shall formulate schemes (e.g. leasemaintained-and-transfer, build-operate-transfer,

and similar arrangements) to ensure the preservation and maintenance of the historical sites and structures; (f) To call upon any government agency or instrumentality and corporation, and to invite private individuals and organizations to assist it in the performance of its tasks; and, (g) Submit regular reports to the President on the plans, programs, projects, activities as well as the status of the preparations for the Celebration.[18]

It bears noting the President, upon whom the executive power is vested,[19] created the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2 describes the nature of executive orders: SEC. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. [Underscoring ours.] Furthermore, the NCC was not without a role in the countrys economic development, especially in Central Luzon. Petitioner himself admitted as much in the oral arguments before this Court: MR. JUSTICE REYNATO S. PUNO: And in addition to that expounded by Former President Ramos, dont you agree that the task of the centennial commission was also to focus on the long term over all socio economic development of the zone and Central Luzon by attracting investors in the area because of the eruption of Mt. Pinatubo.

(b)

(c)

(d)

(e)

FORMER VICE PRESIDENT SALVADOR H. LAUREL: I am glad Your Honor touched on that because that is something I wanted to touch on by lack of material time I could not but that is a very important point. When I was made Chairman I wanted the Expo to be in Batangas because I am a Batangeo but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery in that area by putting this Expo in Clark Field and so it was done I agreed and Your Honor if I may also mention we wanted to generate employment aside from attracting business investments and employment. And the Estrada administration decided to junk this project there 48, 40 thousand people who lost job, they were employed in Expo. And our target was to provide 75 thousand jobs. It would have really calibrated, accelerated the development of Central Luzon. Now, I think they are going back to that because they had the airport and there are plan to revive the Expo site into key park which was the original plan. There can hardly be any dispute that the promotion of industrialization and full employment is a fundamental state policy.[20] Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that the holding by a municipality of a town fiesta is a proprietary rather than a governmental function. Petitioner argues that the holding of a nationwide celebration which marked the nations 100th birthday may be likened to a national fiesta which involved only the exercise of

the national governments proprietary function.[22] In Torio, we held: [Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the celebration, as claimed, was not to secure profit or gain but merely to provide entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the town, nonetheless it is [a] private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service. As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The basic element, however beneficial to the public the undertaking may be, is that it isgovernment in essence, otherwise, the function becomes private or propriety in character. Easily, no governmental or public policy of the state is involved in the celebration of a town fiesta. Torio, however, did not intend to lay down an allencompassing doctrine. Note that the Court cautioned that there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated how the surrounding circumstances plus the political, social, and cultural backgrounds could produce a conclusion different from that in Torio:

We came across an interesting case which shows that surrounding circumstances plus the political, social, and cultural backgrounds may have a decisive bearing on this question. The case of Pope v. City of New Haven, et al. was an action to recover damages for personal injuries caused during a Fourth of July fireworks display resulting in the death of a bystander alleged to have been caused by defendants negligence. The defendants demurred to the complaint invoking the defense that the city was engaged in the performance of a public governmental duty from which it received no pecuniary benefit and for negligence in the performance of which no statutory liability is imposed. This demurrer was sustained by the Superior Court of New Haven Country. Plaintiff sought to amend his complaint to allege that the celebration was for the corporate advantage of the city. This was denied. In affirming the order, the Supreme Court of Errors of Connecticut held inter alia: Municipal corporations are exempt from liability for the negligent performance of purely public governmental duties, unless made liable by statute. A municipality corporation, which under permissive authority of its charter or of statute, conducted a public Fourth of July celebration, including a display of fireworks, and sent up a bomb intended to explode in the air, but which failed to explode until it reached the ground, and then killed a spectator, was engaged in the performance of a governmental duty. (99 A.R. 51) This decision was concurred in by three Judges while two dissented. At any rate the rationale of the Majority Opinion is evident from [this] excerpt: July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our statutes. All or nearly all of the other states have similar statutes. While there is no United States statute making a similar provision, the different

departments of the government recognize, and have recognized since the government was established, July 4th as a national holiday. Throughout the country it has been recognized and celebrated as such. These celebrations, calculated to entertain and instruct the people generally and to arouse and stimulate patriotic sentiments and love of country, frequently take the form of literary exercises consisting of patriotic speeches and the reading of the Constitution, accompanied by a musical program including patriotic air sometimes preceded by the firing of cannon and followed by fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. x x x Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial Celebrations was meant to commemorate the birth of our nation after centuries of struggle against our former colonial master, to memorialize the liberation of our people from oppression by a foreign power. 1998 marked 100 years of independence and sovereignty as one united nation. The Celebrations was an occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it, it was a vehicle for fostering nationhood and a strong sense of Filipino identity, an opportunity to showcase Filipino heritage and thereby strengthen Filipino values. The significance of the Celebrations could not have been lost on petitioner, who remarked during the hearing: Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle the love for freedom, love for country, that is the over-all goal that has to make everybody feel proud that he is a Filipino, proud of our history, proud of what our forefather did in their time. x x x.

Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good.[23] Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached.[24] But it is a public office, nonetheless. Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc body make said commission less of a public office. The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office. But, says Chief Justice Marshall, if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, -- it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer. At the same time, however, this element of continuance can not be considered as indispensable, for, if the other elements are present it can make no difference, says Pearson, C.J., whether there be but one act or a series of acts to be done, -- whether the office

expires as soon as the one act is done, or is to be held for years or during good behavior.[25] Our conclusion that petitioner is a public officer finds support in In Re Corliss.[26] There the Supreme Court of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an office of trust as to disqualify its holder as elector of the United States President and Vice-President. (Under Article II of the United States Constitution, a person holding an office of trust or profit under the United States is disqualified from being appointed an elector.) x x x. We think a Commissioner of the United States Centennial Commission holds an office of trust under the United States, and that he is therefore disqualified for the office of elector of President and Vice-President of the United States. The commission was created under a statute of the United States approved March 3, 1871. That statute provides for the holding of an exhibition of American and foreign arts, products, and manufactures, under the auspices of the government of the United States, and for the constitution of a commission, to consist of more than one delegate from each State and from each Territory of the United States, whose functions shall continue until close of the exhibition, and whose duty it shall be to prepare and superintend the execution of the plan for holding the exhibition. Under the statute the commissioners are appointed by the President of the United States, on the nomination of the governor of the States and Territories respectively. Various duties were imposed upon the commission, and under the statute provision was to be made for it to have exclusive control of the exhibit before the President should announce, by proclamation, the date and place of opening and holding the exhibition. By an act of Congress approved June 1st, 1872, the duties and functions of the commission were further increased and defined. That act created a corporation, called The

Centennial Board of Finance, to cooperate with the commission and to raise and disburse the funds. It was to be organized under the direction of the commission. The seventh section of the act provides that the grounds for exhibition shall be prepared and the buildings erected by the corporation, in accordance with plans which shall have been adopted by the United States Centennial Commission; and the rules and regulations of said corporation, governing rates for entrance and admission fees, or otherwise affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be fixed and established by the United States Centennial Commission; and no grant conferring rights or privileges of any description connected with said grounds or buildings, or relating to said exhibition or celebration, shall be made without the consent of the United States Centennial Commission, and said commission shall have power to control, change, or revoke all such grants, and shall appoint all judges and examiners and award all premiums. The tenth section of the act provides that it shall be the duty of the United States Centennial Commission to supervise the closing up of the affairs of said corporation, to audit its accounts, and submit in a report to the President of the United States the financial results of the centennial exhibition. It is apparent from this statement, which is but partial, that the duties and functions of the commission were various, delicate, and important; that they could be successfully performed only by men of large experience and knowledge of affairs; and that they were not merely subordinate and provisional, but in the highest degree authoritative, discretionary, and final in their character. We think that persons performing such duties and exercising such functions, in pursuance of statutory direction and authority, are not to be regarded as mere employees, agents, or committee men, but that they are, properly speaking, officers, and that the places which they hold are offices. It appears, moreover, that they were originally regarded as officers by Congress; for the act under which they were appointed declares, section 7, that no compensation for services shall be paid to the commissioners or other officers, provided for in this act, from

the treasury of the United States. The only other officers provided for were the alternates appointed to serve as commissioners when the commissioners were unable to attend. Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a public office, we need no longer delve at length on the issue of whether Expocorp is a private or a public corporation. Even assuming that Expocorp is a private corporation, petitioners position as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair.[27] Finally, it is contended that since petitioner supposedly did not receive any compensation for his services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman. Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads: SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government

corporations charged with the grant of licenses or permits or other concessions. A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows: SEC. 2. Definition of terms. As used in this Act, the term xxx (b) Public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption servicereceiving compensation, even nominal, from the government as defined in the preceding paragraph. [Emphasis supplied.] It is clear from Section 2 (b), above, that the definition of a public officer is expressly limited to the application of R.A. No. 3019. Said definition does not apply for purposes of determining the Ombudsmans jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989. Moreover, the question of whether petitioner is a public officer under the Anti-Graft and Corrupt Practices Act involves the appreciation of evidence and interpretation of law, matters that are best resolved at trial. To illustrate, the use of the term includes in Section 2 (b) indicates that the definition is not restrictive.[28] The Anti-Graft and Corrupt Practices Act is just one of several laws that define public officers. Article 203 of the Revised Penal Code, for example, provides that a public officer is: x x x any person who, by direct provision of law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of Philippines, or performs in

said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class. Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,[29] on the other hand, states: Officer as distinguished from clerk or employee, refers to a person whose duties not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular person in the exercise of governmental power, officer includes any government employee, agent or body having authority to do the act or exercise that function. It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees), one may be considered a public official whether or not one receives compensation, thus: Public Officials include elective and appointive officials and employees, permanent or temporary, whether in the career or noncareer service including military and police personnel, whether or not they receive compensation, regardless of amount. Which of these definitions should apply, if at all? Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term compensation, which is not defined by said law, has many meanings. Under particular circumstances, compensation has been held to include allowance for personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts, salary, and wages.[30]

How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted? Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive any salary, the records do not reveal if he received any allowance, fee, honorarium, or some other form of compensation. Notably, under the by-laws of Expocorp, the CEO is entitled toper diems and compensation.[31] Would such fact bear any significance? Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial court from resolving them. WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Courts Resolution dated September 24, 2001 is hereby LIFTED. SO ORDERED. Puno, and Ynares-Santiago, JJ., concur. Davide, Jr., C.J., (Chairman), no part due to close relation to a party.
[2] [1]

The Committee members shall elect among themselves the Chairman and Vice-Chairman, and such other officers as they may deem necessary. The Committee was also granted the following duties and powers: 1. To undertake the overall study, formulation and implementation of programs and projects on the utilization of culture, arts, and media as vehicles for value education in the context of the Centennial Celebration; 2. To act as principal coordinator for all the activities related to awareness and celebration of the centennial; 3. To constitute sub-committees and working groups which shall undertake the implementation of the program and projects; and 4. To call upon the assistance of any government agency or instrumentality and corporation, and to invite private individuals and organizations to assist it in the performance of its tasks. (Id., at Section 2.) Other members of the Commission were the Secretaries of Education, Culture and Sports, National Defense, Interior and Local Government, Tourism, Trade and Industry, Public Works and Highways, Transportation and Communications, and Budget and Management, the Press Secretary, two (2) representatives each from the Senate and the House of Representatives, two (2) representatives from the Judiciary, the Executive Director of the National Historical Institute, three (3) representatives from the National Commission for Culture and Arts, three (3) representatives from the Philippine Centennial Foundation, Inc., and other members from the government and the private sectors,

A.O. 223, Section 1. The same section provided for the Committees composition as follows: x x x. The Committee shall be composed of six (6) representatives from the Presidential Commission for Culture and the Arts (PCCA), and five (5) representatives from the Philippine Centennial Foundation, Inc. (PCFI). They shall be appointed by the President upon their nomination by their respective groups.

as may be designated later. (E.O. No. 128, Section 1.)

[3] [4]

Id., at Section 5. The purposes of the corporation were set forth in Article 2 of the Articles of Incorporation, thus: PRIMARY PURPOSE To set up and establish the Philippine Centennial International Exposition 1998 (EXPO 98), a project of the National Centennial Commission envisioned and mandated under Executive Order No. 128, series of 1993, in the Clark Special Economic Zone (CSEZ) within the Provinces of Pampanga and Tarlac, Philippines as created, defined and delineated under Proclamation No. 163, series 1993, of the President of the Philippines and furtherance of said purpose; 1. To operate, administer, manage, implement, and develop EXPO 98 conformably to and in accordance with the Detailed Feasibility study and Master Plan for said Exposition prepared by DOUGLAS/GALLAGHER, INC. and approved by the President of the Philippines; 2. To exercise oversight functions and overall jurisdiction over the operations of EXPO 98 as well as manage and oversee all plans, programs, and activities related to the implementation and operation of said Exposition; 3. To regulate the establishment, operation, and maintenance of utilities, services, and infrastructure works in all the site components of EXPO 98 and its support facilities;

4. To oversee the preparations for the implementation of the participation of countries, groups, organizations, and entities at EXPO 98; 5. To establish linkages with participating countries and coordinate their programs and activities relevant to the theme of EXPO 98; 6. To provide and prescribe the guidelines for the design and fabrication of the pavilions of participating countries that played a significant role in Philippine historical development and of other participating groups, organizations, and entities which would be reflective of the following objectives of EXPO 98 -a) showcase the national vision of the Philippines, highlighted by a rich history and culture, and its traditional heritage and diverse cultural influences; b) express eloquently the Filipinism sentiment of the Philippine Centennial; c) strengthen cultural and historical linkages between Philippines and participating countries; d) create an image of the Philippines as a country with rich trade and tourism potentials; and e) project the Filipino character and strengthen the sense of national pride and patriotism among the Filipino people. 7. To conceive and devise varied promotional strategies towards creating awareness and appreciation of EXPO 98 as the centerpiece of the national celebrations in 1998 of the centennial of the

declaration of Philippine Independence and beyond that as a permanent site for the Filipino people to honor their rich heritage; 8. To encourage and invite the active and meaningful participation of the private sector in managing and overseeing EXPO 98; and 9. To forge strategic partnerships and joint ventures with local and international investors and developers in the development, maintenance, operation, and management of EXPO 98 on a turnkey basis. SECONDARY PURPOSES (1) To purchase, acquire, own, lease, sell and convey real properties such as lands, buildings, factories and warehouses and machineries, equipment and other personal properties as may be necessary or incidental to the conduct of the corporate business, and to pay in cash, shares of its capital stock, debentures and other evidences of indebtedness, or other securities, as may be deemed expedient, for any business or property acquired by the corporation. (2) To borrow or raise money necessary to meet the financial requirements of its business by the issuance of bonds, promissory notes and other evidences of indebtedness, and to secure the repayment thereof by mortgage, pledge, deed of trust or lien upon the properties of the corporation or to issue pursuant to law shares of its capital stock, debentures and other evidences of indebtedness in payment for properties acquired by the corporation or for money borrowed in the prosecution of its lawful business;

(3) To invest and deal with the money and properties of the corporation in such manner as may from time to time be considered wise or expedient for the advancement of its interests and to sell, dispose of or transfer the business, properties and goodwill of the corporation or any part thereof for such consideration and under such terms as it shall see fit to accept; (4) To aid in any manner any corporation, association, or trust estate, domestic or foreign, or any firm or individual, any shares of stock in which or any bonds, debentures, notes, securities, evidences of indebtedness, contracts, or obligations of which are held by or for this corporation, directly or indirectly or through other corporations or otherwise; (5) To enter into any lawful arrangement for sharing profits, union of interest, unitization or farmout agreement, reciprocal concession, or cooperation, with any corporation, association, partnership, syndicate, entity, person or governmental, municipal or public authority, domestic or foreign, in the carrying on of any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of this corporation; (6) To acquire or obtain from any government or authority, national, provincial, municipal or otherwise, or a corporation, company or partnership or person, such charter, contracts, franchise, privileges, exemption, licenses and concessions as may be conducive to any of the objects of the corporation; (7) To establish and operate one or more branch offices of agencies and to carry on any or all of its operations and business without any restrictions as to place or amount including the right to hold, purchase

or otherwise acquire, lease, mortgage, pledge and convey or otherwise deal in with real and personal property anywhere within the Philippines; (8) To conduct and transact any and all lawful business, and to do or cause to be done any one or more of the acts and things herein set forth as its purposes, within or without the Philippines, and in any and all foreign countries, and to do everything necessary, desirable or incidental to the accomplishment of the purposes or the exercise of any one or more of the powers herein enumerated, or which shall at any time appear conducive to or expedient for the protection or benefit of this corporation.
[5] [6] [7] [8] [9]

In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities.
[13]

E.g., Fernandez vs. Ledesma, 7 SCRA 620 (1963); Aparri vs. Court of Appeals, 127 SCRA 231 (1984). F.R. Mechem, A Treatise on the law of Public Offices and Officers, 1. Id., at 4-10. See also 63C Am Jur 2d, Public Officers and Employees 1. Id., at 4. Ople vs. Torres, 293 SCRA 141 (1998). Id., at Sec. 2. Constitution, Article VII, Section 1. Article XII (National Economy and Patrimony) of the Constitution provides: Section 1. x x x. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. x x x.

[14]

[15]

Rollo, p. 10. Id., at 134-135. Id., at 15. Id., at 296-297. 312 SCRA 77 (1999). Art. XI, Sec. 12. Art. XI, Sec. 13 (1). Section 22 extends these investigatory powers, under certain conditions, to private persons: SEC. 22. Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment or over Members of Congress, and the Judiciary.

[16] [17] [18] [19] [20]

[10] [11] [12]

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. x x x.

[21] [22] [23]

85 SCRA 599 (1978). Rollo, p. 466. Id, at 7, 15. See also Triste vs. Leyte State College Board of Trustees, 192 SCRA 326 (1990) Id., at 13. Id., at 8. Emphasis supplied. 23 Am Rep. 538 (1876). See Yasay vs. Desierto, 300 SCRA 494 (1998). Preclaro vs. Sandiganbayan, 247 SCRA 454 (1995). Executive Order No. 292. 15 C.J.S. Compensation, p. 654. Rollo, p. 470.

[24] [25] [26] [27] [28] [29] [30] [31]