arimao taher onwards
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G.R. No. 152651 August 7, 2006
ANDABAI T. ARIMAO, Petitioner,vs.
SAADEA P. TAHER, Respondent.
D E C I S I O N
TINGA,J.:
Before us is a petition for review of the Decision and Order
dated 16 October 2001 and 31 January 2002, respectively,of Branch 14 of the Regional Trial Court, 12th Judicial
Region, Cotabato City, in SPL. Civil Case No. 660, entitled
"Saadea P. Taher v. Gov. Nur Misuari, in his capacity as
ARMM Regional Governor, Andabai T. Arimao and
Bajunaid Kamaludin, Acting Director of TESDA-ARMM,"
which enjoined respondents therein, including petitioner
Andabai T. Arimao, from carrying out the effects of the
Memorandum dated 04 August 2000 issued by then
Autonomous Region in Muslim Mindanao (ARMM)
Governor Nur P. Misuari.
The facts of the case, as culled from the records, follow:
On 22 March 1995, petitioner was appointed as Director II,
Bureau of Non-formal Education, Department of
Education, Culture and Sports (DECS-ARMM). Thereafter,
on 17 July 1995, respondent was appointed Education
Supervisor II. Petitioners appointment, however, was
protested by a certain Alibai T. Benito, who claimed that
said appointment did not pass through any evaluation by
the personnel selection board. 1 Petitioners appointment
was eventually disapproved by the Civil Service
Commission-Field Office (CSC-FO), Cotabato City, for
failure to meet the experience required for the position. On
02 May 1996, the CSC, through Resolution No. 96- 3101,
affirmed the findings of the CSC-FO and ordered petitioner
to be reverted to her former position of Education
Supervisor II. 2 Petitioner sought reconsideration of the
decision.
In the interim, petitioner applied for and was granted by
the DECS-ARMM an academic scholarship with pay
effective 30 October 1996 in her capacity as Education
Supervisor II. The scholarship was limited to a period of
one year.3
Meanwhile, petitioners motion for reconsideration of CSC
Resolution No. 96-3101 was denied. 4 Subsequently, she
filed a petition for review of the two CSC Resolutions
before the Court of Appeals 5which, however, denied due
course to the petition on 10 June 1998. 6 On 17 October
1998, the Court of Appeals issued an Entry of Judgment
declaring the denial of the petition to be final and
executory.7
In the meantime, the position of Education Supervisor II
being occupied by respondent was devolved from
DECS-ARMM to the Technical Education and Skills
Development Authority (TESDA)- ARMM.
On 2 December 1998, petitioner informed the CSC
Regional Office in Cotabato City that she was already
allowed by the Director of TESDA-ARMM to report for
duty, only that she and respondent are reporting to the
same position. 8 On 10 December 1998, the CSC Regiona
Director enjoined respondent from reporting to the
TESDA-ARMM. 9 It appears, however, that respondent
continued to report as Education Supervisor II.
On 7 December 1998, respondent, unaware that petitioner
was granted a study leave from October 1996 to October
1997, filed a complaint before the Regional Director
ARMM, relative to petitioners continued absence. On 24
December 1998, upon the complaint filed by respondent
the Executive Secretary of ARMM, by authority of theARMM Regional Governor and per his Memorandum o
even date, declared petitioner to have been Absent
Without Leave (AWOL) by reason of her failure to report
to her office for at least a year after the expiration of her
study leave and directed that she be dropped from the
payroll. 10 Petitioner appealed the said Memorandum to
the Office of the ARMM Regional Governor. In Resolution
No. 001-99 dated 17 March 1999, the said office denied the
appeal, finding that from 30 October 1996 up to the
opening of school year 1997-1998, first semester
petitioner failed to report to office despite the fact that she
was not able to enroll immediately upon the approval of
her study leave. 11Further, petitioners act of enrolling inthe second semester of school year 1997-1998 in the
absence of an approved extension of her study leave is a
clear violation of the implementing guidelines of Republic
Act No. 4670, or the Magna Carta for Public Schoo
Teachers. The dispositive portion of the Resolution reads:
WHEREFORE, [p]remises considered, the instant letter o
Mrs. Arimao to reconsider the action of the Executive
Secretary in dropping her from the roll is hereby DENIED
and is accordingly DISMISSED for lack of merit. Thus, the
Memorandum Ordered [sic] of the Executive Secretary on
Authority of the Regional Governor dated December 24
1998 is hereby affirmed and remained [sic] undisturbed
Nonetheless, since the act of dropping one from the roll is
non[-]disciplinary action on the ground of being guilty of
the charge of Absence Without Approved Leave (AWOL)
the respondent may be appointed to other position[s] in
the Government service at the discretion of the appointing
authority.
SO ORDERED.12
On 20 July 2000, Datu Guimid P. Matalam, Regional Vice
Governor/Acting Regional Governor, ordered petitioner to
reassume her former position as Education Supervisor II
and revoked the ARMM Executive Secretarys Resolution
dated 24 December 1998. 13However, on 1 August 2000
the same Acting Regional Governor issued the followingorder:
In the interest of the service and considering the need to
observe fairness and justice in dealing with our personnel
you are hereby directed to implement the above
mentioned resolution rendered by the Regional Solicitor
General on March 17, 1999.
As such, you are likewise directed to maintain STATUS
QUO on the part of Ms. SAADEA P. TAHER, Education
Supervisor II with permanent status duly approved by the
Civil Service Commission.
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TO : TESDA ARMM
Cotabato City
SUBJECT : Implementation of CSC Resolution No. 96-3101,
and CSC-ARMM Directive Order Dated July 26, 2000
DATE : August 4, 2000
In the highest interest of public service and consistent with
the legal and constitutional precept of promoting social
justice, the above-captioned resolutions are hereby
implemented.
As such, you are hereby directed to re-instate ANDABAI T.
ARIMAO to her former position as Education Supervisor II
pursuant to the foregoing resolution and the provisions of
Sec. 13, Rule VI, Book V of E.O. No, 292 which are further
buttressed by the series of communication of CSC Regional
Office No. XII dated September 10, 1998, October 20, 1998,
November 03, 1998 and December 10, 1998 and directive
order of CSC-ARMM dated July 26, 2000 respectively.
This [M]emorandum shall take effect immediately and
shall take precedence over all memoranda, orders and
other issuances [sic] inconsistent herewith.
(Signed)
PROF. NUR P. MISUARI
Regional Governor32
Even a cursory look at the Memorandum shows that the
order of petitioners reinstatement was made in reliance
on, or in implementation of, CSC Resolution No. 96-3101
and CSC-ARMM Directive Order dated 26 July 2000, both
of which ordained her reinstatement. However, these
directives relied upon by ARMM Regional Governor
Misuari were rendered functus officio by no less than the
CSC itself per its Resolution No. 020743, which, as
previously noted, ruled that the TESDA-ARMM is not underlegal obligation to reinstate petitioner because she was
already dropped from the rolls effective 24 December
1998. CSC Resolution No. 01-0132, ordering the
implementation of CSC Resolution No. 96-3101, was issued
because petitioner purposely concealed and withheld from
the CSC the information that she had been declared AWOL
and dropped from the rolls.33With Resolution No. 020743,
CSC Resolution No. 01-0132 was effectively revoked.
Likewise, with the finality of the AWOL order and her
having been dropped from the rolls, petitioner legally lost
her right to the position of Education Supervisor II. In any
case, she has already received from the DECS-ARMM her
salaries as Education Supervisor II for the period October1996 to 1997, or the period corresponding to the time the
position was still with the said department.34
Petitioner argues that the 24 December 1998
Memorandum finding her to be on AWOL was revoked and
rendered moot by subsequent issuances. We are not
persuaded. While it is true that then Acting Regional
Governor Matalam revoked the 24 December 1998 order
of the ARMM Executive Secretary, he recalled the
revocation via his Memorandum dated 01 August 2006.
Thus, the AWOL order dated 24 December 1998 was in full
force and effect when ARMM Regional Governor Misuari
issued the assailed 04 August 2000 Memorandum.
Propriety of the Petition for Prohibition
The trial court did not err in taking cognizance of the
petition for prohibition.
The principal purpose for the writ of prohibition is to
prevent an encroachment, excess, usurpation or
assumption of jurisdiction on the part of an inferior court
or quasi-judicial tribunal. It is granted when it is necessary
for the orderly administration of justice, or to prevent theuse of the strong arm of the law in an oppressive or
vindictive manner, or to put a stop to multiplicity of
actions. Thus, for a party to be entitled to a writ o
prohibition, he must establish the following requisites: (a)
it must be directed against a tribunal, corporation, board
or person exercising functions, judicial or ministerial; (b)
the tribunal, corporation, board or person has acted
without or in excess of its jurisdiction, or with grave abuse
of discretion; and (c) there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of
law.35
Under Republic Act No. 6734, 36 executive power in the
ARMM is vested in the Regional Governor, who has controof all the regional executive commissions, boards, bureaus
and offices, and exercises general supervision over the
local government units within the Autonomous Region. 3
The assailed Memorandum of ARMM Regional Governor
Misuari was presumably issued in the exercise of his
power of control and supervision. However, by ordering
the reinstatement of petitioner to her former position
based upon an outdated CSC Resolution, despite the AWOL
order and her being dropped from the rolls, ARMM
Regional Governor Misuari acted with grave abuse of
discretion, amounting to excess of jurisdiction.
Neither is the petition for prohibition before the trial courtviolative of the doctrine of primary jurisdiction. Said
doctrine precludes a court from arrogating unto itself the
authority to resolve a controversy the jurisdiction over
which is initially lodged with an administrative body o
special competence. 38 An exception to this rule is when
the issue raised is a purely legal question, well within the
competence and the jurisdiction of the court and not the
administrative
agency.39In the instant case, the legal question of whether
a memorandum of the ARMM Governor, ordering the
reinstatement of an employee declared AWOL and
dropped from the rolls, was issued in excess of jurisdiction
is a legal question which should be resolved by the courtsFor the same reason that the issues to be resolved in this
case are purely legal in nature, respondent need not abide
by the doctrine of exhaustion of administrative remedies40Besides, to allow the matter to remain with the Office o
the ARMM Governor for resolution would be self-defeating
and useless and cause unnecessary delay since it was the
same office which gave the conflicting issuances on
petitioners reinstatement.
Neither petitioner nor respondent
is entitled to the position of Education
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Supervisor II
The finality of the disapproval of petitioners promotion, as
well as that of the Order declaring petitioner on AWOL and
dropping her from the rolls, is no longer disputed. Thus, as
found by the CSC in its Resolution No. 020743, TESDA has
no legal obligation to reinstate petitioner to the position of
Education Supervisor II. This, however, should not be
construed as a declaration that respondent is entitled to
the position of Education Supervisor II.
Section 13, Rule 6 of the Omnibus Rules Implementing
Book V, E.O. 292, provides:
All appointments involved in a chain of promotions must
be submitted simultaneously for approval by the
Commission. The disapproval of the appointment of a
person proposed to a higher position invalidates the
promotion of those in lower positions and automatically
restores them to their former positions. However, the
affected persons are entitled to the payment of salaries for
services actually rendered at a rate fixed in their
promotional appointments.
Section 19 of the same rule states:
SEC. 19. An appointment though contested shall take effect
immediately upon its issuance if the appointee assumes
the duties of the position and the appointee is entitled to
receive the salary attached to the position. However, the
appointment, together with the decision of the department
head shall be submitted to the Commission for appropriate
action within 30 days from the date of its issuance
otherwise the appointment becomes ineffective thereafter.
Likewise, such an appointment shall become ineffective in
case the protest is finally resolved against the protestee, in
which case he shall be reverted to his former position.
It must be noted that while respondents appointment to
the position of Education Supervisor II was approved aspermanent and completed, it was nonetheless made
subject to the outcome of the protest filed against
petitioners appointment. 41 At the back of the
appointment, the following appears:
This appointment is subject to the outcome of the protest
of Alibai Benito in the appointment of Andabai Arimao
former incumbent to the position.42
As a chain reaction of the disapproval of petitioners
promotional appointment as Director II, respondents
appointment to Education Supervisor II was likewise
invalidated. The efficacy of respondents appointment was
dependent on the validity of petitioners promotionalappointment which in turn was subject to the outcome of
the protest against it.
Thus, as of 17 October 1998or the date of finality of the
denial of the petition questioning the disapproval of
petitioners appointment as Director IIboth petitioner
and respondent were reverted to their former positions.
Petitioner should have been allowed to re-assume her
position of Education Supervisor II as of the said date, and
thereafter remain in the said office until she was dropped
from the rolls in 1999. Respondent, in turn, should have
been made to return to her former position.
Indeed, for all intents and purposes, respondent became
the Education Supervisor II by virtue of her appointment
as such on 25 July 1995. However, her tenure ended when
petitioner was reverted to the same position on 17
October 1998. Thus, during respondents occupancy of the
position of Education Supervisor II after petitioners
promotional appointment had been disapproved
respondent should be deemed a de facto officer only. 43A
de facto officer is"one who has the reputation of being the
officer he assumes and yet is not a good officer in point oflaw." He is one who is in possession of the office and
discharging its duties under color of authority, and by
color of authority is meant that derived from an election or
appointment, however irregular or informal, so that the
incumbent is not a mere volunteer. 44 The difference
between the basis of the authority of a de jure officer and
that of a de facto officer is that one rests on right, the other
on reputation.45
In Monroy v. Court of Appeals, et al.,46this Court ruled tha
a rightful incumbent of a public office may recover from a
de facto officer the salary received by the latter during the
time of his wrongful tenure. A de facto officer, not having a
good title, takes the salaries at his risk and must, thereforeaccount to the de jure officer for whatever salary he
received during the period of his wrongful tenure.47In the
instant case, respondent should account to petitioner for
the salaries she received from the time the disapproval o
petitioners promotion became final, up to the time when
petitioner was declared on AWOL and dropped from the
rolls. However, respondent may be allowed to keep the
emoluments she received during said period, there being
no de jure officer at the time,48following our ruling in Civi
Liberties Union v. Executive Secretary, 49to wit:
[I]n 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.50
There is no question that respondent discharged the duties
of Education Supervisor II from the time she was
appointed to the position and even after her appointment
was invalidated as a result of the invalidation of
petitioners promotional appointment. In view of the
services respondent rendered to the TESDA and the people
of the ARMM, it would be iniquitous to deny her the salary
appertaining to the position corresponding to the period of
her service.All the same, however, respondent cannot continue her
unauthorized occupancy, notwithstanding the fact that the
position of Education Supervisor II has been vacant since
1999. Absent any showing that she has been reappointed
to the position after petitioner was declared AWOL and
dropped from the rolls, respondent cannot lay a valid
claim thereto.
WHEREFORE, the petition is DENIED and the Decision and
Order dated 16 October 2001 and 31 January 2002
respectively, of the RTC, 12th Judicial Region, Branch 14
are AFFIRMED.
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Respondent is ordered to VACATE the position of
Education Supervisor II, TESDA-ARMM, and turn over to
petitioner the emoluments she received for the position
from 17 October 1998 to 17 March 1999.
Costs against petitioner.
SO ORDERED.
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G.R. No. 90762 May 20, 1991
LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON,petitioner,
vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA inhis capacity as Chief Executive of the Province of Leyteand Head of SANGGUNIANG PANLALAWIGAN and LeyteProvincial Treasurer FLORENCIO LUNA, respondents.
Zozimo G. Alegre for petitioner.
The Provincial Attorney for respondents.
R E S O L U T I O N
GUTIERREZ, JR.,J.:p
This is a motion for reconsideration of the resolution of the
Court dated August 28, 1990 which initially denied the
petition for certiorari and mandamus filed by then Acting
Vice-Governor of Leyte, Aurelio D. Menzon. In the August
28 resolution, the Court stated that Mr. Menzon cannot
successfully assert the right to be recognized as Acting
Vice-Governor and, therefore, his designation was invalid.
In this motion, the primary issue is the right to
emoluments while actually discharging the duties of theoffice.
The facts of the case are as follows: On February 16, 1988,
by virtue of the fact that no Governor had been proclaimed
in the province of Leyte, the Secretary of Local
Government Luis Santos designated the Vice-Governor,
Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a
senior member of the Sangguniang Panlalawigan was also
designated by Secretary Luis Santos to act as the
Vice-Governor for the province of Leyte.
The petitioner took his oath of office before Senator
Alberto Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U.
Quintero inquired from the Undersecretary of the
Department of Local Government, Jacinto T. Rubillar, Jr., as
to the legality of the appointment of the petitioner to act as
the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary
Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no
provision relating to succession in the Office of the
Vice-Governor in case of a temporary vacancy, the
appointment of the petitioner as the temporary Vice-
Governor is not necessary since the Vice-Governor who is
temporarily performing the functions of the Governor,could concurrently assume the functions of both offices.
As a result of the foregoing communications between
Tente U. Quintero and Jacinto T. Rubillar, Jr., the
Sangguniang Panlalawigan, in a special session held on July
7, 1989, issued Resolution No. 505 where it held invalid
the appointment of the petitioner as acting Vice-Governor
of Leyte. The pertinent portion of the resolution reads:
WHEREAS, the circumstances obtaining at present
in the Office of the Vice-Governor is that there is
no permanent (sic) nor a vacancy in said office.
The Honorable Leopoldo E. Petilla assumed the
Office of the Vice-Governor after he took his oath
of office to said position.
WHEREAS, it is the duty of the members of the
Board not only to take cognizance of the aforesaid
official communication of the Undersecretary
Jacinto T. Rubillar, Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R
Esmas, Jr., duly seconded by the Honorable
Rogelio L. Granados and the Honorable Renato M
Rances.
RESOLVED, as it is hereby resolved not to
recognize Honorable Aurelio D. Menzon as Acting
Vice-Governor of Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP
Regional Counsel, Atty. Zosimo Alegre, sought clarification
from Undersecretary Jacinto T. Rubillar, Jr. regarding the
June 22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar
replied and explained his opinion. The pertinent portion of
the letter reads:This has reference to your letter dated July 10
1989, requesting for clarification of our letter to
Provincial Administrator Tente U. Quintero dated
June 22, 1989, which states in substance, that
"there is no succession provided for in case of
temporary vacancy in the office of the
vice-governor and that the designation of a
temporary vice-governor is not necessary.
We hold the view that the designation extended by
the Secretary of Local Government in favor of one
of the Sangguniang Panlalawigan Members o
Leyte to temporarily discharge the powers and
duties of the vice-governor during the pendency o
the electoral controversy in the Office of the
Governor, does not contradict the stand we have
on the matter. The fact that the Sangguniang
Panlalawigan member was temporarily
designated to perform the functions of the
vice-governor could not be considered that the
Sangguniang member succeeds to the office of the
latter, for it is basic that designation is merely an
imposition of additional duties to be performed by
the designee in addition to the official functions
attached to his office. Furthermore, the necessity
of designating an official to temporarily perform
the functions of a particular public office, would
depend on the discretion of the appointing
authority and the prevailing circumstances in a
given area and by taking into consideration the
best interest of public service.
On the basis of the foregoing and considering that
the law is silent in case of temporary vacancy, in
the Office of the Vice-Governor, it is our view that
the peculiar situation in the Province of Leyte
where the electoral controversy in the Office of
the Governor has not yet been settled, calls for the
designation of the Sangguniang Member to act as
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vice-governor temporarily. (Rollo, p. 31)
In view, of the clarificatory letter of Undersecretary
Rubillar, the Regional Director of the Department of Local
Government, Region 8, Resurreccion Salvatierra, on July
17, 1989, wrote a letter addressed to the Acting-Governor
of Leyte, Leopoldo E. Petilla, requesting the latter that
Resolution No. 505 of the Sangguniang Panlalawigan be
modified accordingly. The letter states:
In view thereof, please correct previous actions
made by your office and those of the Sangguniang
Panlalawigan which may have tended to discredit
the validity of Atty. Aurelio Menzon's designation
as acting vice-governor, including the payment of
his salary as Acting Vice-Governor, if he was
deprived of such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another
letter to Acting-Governor Petilla, reiterating his earlier
request.
Despite these several letters of request, the Acting
Governor and the Sangguniang Panlalawigan, refused to
correct Resolution No. 505 and correspondingly to pay the
petitioner the emoluments attached to the Office ofVice-Governor.
Thus, on November 12, 1989, the petitioner filed before
this Court a petition for certiorari and mandamus. The
petition sought the nullification of Resolution No. 505 and
for the payment of his salary for his services as the acting
Vice-Governor of Leyte.
In the meantime, however, the issue on the governorship
of Leyte was settled and Adelina Larrazabal was
proclaimed the Governor of the province of Leyte.
During the pendency of the petition, more particularly on
May 16, 1990, the provincial treasurer of Leyte, Florencio
Luna allowed the payment to the petitioner of his salary as
acting Vice-Governor of Leyte in the amount of P17,710.00,
for the actual services rendered by the petitioner as acting
Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed
by Aurelio D. Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by
virtue of the above resolution requested Governor
Larrazabal to direct the petitioner to pay back to the
province of Leyte all the emoluments and compensation
which he received while acting as the Vice-Governor of
Leyte.
On September 21, 1990, the petitioner filed a motion for
reconsideration of our resolution. The motion prayed that
this Court uphold the petitioner's right to receive the
salary and emoluments attached to the office of the
Vice-Governor while he was acting as such.
The petitioner interposes the following reason for the
allowance of the motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE
EMOLUMENTS FOR HIS SERVICES RENDERED AS
DESIGNATED ACTING VICE-GOVERNOR UNDER
THE PRINCIPLES OF GOOD FAITH. SIMPLE
JUSTICE AND EQUITY.
The controversy basically revolves around two issues: 1)
Whether or not there was a vacancy?; and 2) Whether or
not the Secretary of Local Government has the authority to
make temporary appointments?
The respondents argue that there exists no vacancy in the
Office of the Vice-Governor which requires the
appointment of the petitioner. They further allege that if
indeed there was a need to appoint an acting
Vice-Governor, the power to appoint is net vested in the
Secretary of Local Government. Absent any provision in
the Local Government Code on the mode of succession in
case of a temporary vacancy in the Office of the
Vice-Governor, they claim that this constitutes an interna
problem of the Sangguniang Panlalawigan and was thus
for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is
no vacancy whenever the office is occupied by a legally
qualified incumbent. A sensu contrario, there is a vacancy
when there is no person lawfully authorized to assume and
exercise at present the duties of the office. (see Stocking vState, 7 Ind. 326, cited in Mechem. A Treatise on the Law
on Public Offices and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be
readily seen that the office of the Vice-Governor was left
vacant when the duly elected Vice-Governor Leopoldo
Petilla was appointed Acting Governor. In the eyes of the
law, the office to which he was elected was left barren of a
legally qualified person to exercise the duties of the office
of the Vice-Governor.
There is no satisfactory showing that Leopoldo Petilla
notwithstanding his succession to the Office of the
Governor, continued to simultaneously exercise the dutiesof the Vice-Governor. The nature of the duties of a
Provincial Governor call for a full-time occupant to
discharge them. More so when the vacancy is for an
extended period. Precisely, it was Petilla's automatic
assumption to the acting Governorship that resulted in the
vacancy in the office of the Vice-Governor. The fact that the
Secretary of Local Government was prompted to appoint
the petitioner shows the need to fill up the position during
the period it was vacant. The Department Secretary had
the discretion to ascertain whether or not the Provincial
Governor should devote all his time to that particular
office. Moreover, it is doubtful if the Provincial Board
unilaterally acting, may revoke an appointment made by ahigher authority.
Disposing the issue of vacancy, we come to the second
issue of whether or not the Secretary of Local Government
had the authority to designate the petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of
succession in the event of a temporary vacancy in the
Office of the Vice-Governor. However, the silence of the
law must not be understood to convey that a remedy in
law is wanting.
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The circumstances of the case reveal that there is indeed a
necessity for the appointment of an acting Vice-Governor.
For about two years after the governatorial elections, there
had been no de jure permanent Governor for the province
of Leyte, Governor Adelina Larrazabal, at that time, had not
yet been proclaimed due to a pending election case before
the Commission on Elections.
The two-year interregnum which would result from the
respondents' view of the law is disfavored as it would
cause disruptions and delays in the delivery of basicservices to the people and in the proper management of
the affairs of the local government of Leyte. Definitely, it is
incomprehensible that to leave the situation without
affording any remedy was ever intended by the Local
Government Code.
Under the circumstances of this case and considering the
silence of the Local Government Code, the Court rules that,
in order to obviate the dilemma resulting from an
interregnum created by the vacancy, the President, acting
through her alter ego, the Secretary of Local Government,
may remedy the situation. We declare valid the temporary
appointment extended to the petitioner to act as the
Vice-Governor. The exigencies of public service demanded
nothing less than the immediate appointment of an acting
Vice-Governor.
The records show that it was primarily for this
contingency that Undersecretary Jacinto Rubillar corrected
and reconsidered his previous position and acknowledged
the need for an acting Vice-Governor.
It may be noted that under Commonwealth Act No. 588
and the Revised Administrative Code of 1987, the
President is empowered to make temporary appointments
in certain public offices, in case of any vacancy that may
occur. Albeit both laws deal only with the filling of
vacancies in appointive positions. However, in the absenceof any contrary provision in the Local Government Code
and in the best interest of public service, we see no cogent
reason why the procedure thus outlined by the two laws
may not be similarly applied in the present case. The
respondents contend that the provincial board is the
correct appointing power. This argument has no merit. As
between the President who has supervision over local
governments as provided by law and the members of the
board who are junior to the vice-governor, we have no
problem ruling in favor of the President, until the law
provides otherwise.
A vacancy creates an anomalous situation and finds noapprobation under the law for it deprives the constituents
of their right of representation and governance in their
own local government.
In a republican form of government, the majority rules
through their chosen few, and if one of them is
incapacitated or absent, etc., the management of
governmental affairs to that extent, may be hampered.
Necessarily, there will be a consequent delay in the
delivery of basic services to the people of Leyte if the
Governor or the Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would
main or prejudice the province of Leyte, is for higher
officials to decide or, in proper cases, for the judiciary to
adjudicate. As shown in this case where for about two
years there was only an acting Governor steering the
leadership of the province of Leyte, the urgency of filling
the vacancy in the Office of the Vice-Governor to free the
hands of the acting Governor to handle provincia
problems and to serve as the buffer in case something
might happen to the acting Governor becomes
unquestionable. We do not have to dwell ourselves into thefact that nothing happened to acting Governor Petilla
during the two-year period. The contingency of having
simultaneous vacancies in both offices cannot just be set
aside. It was best for Leyte to have a full-time Governor
and an acting Vice-Governor. Service to the public is the
primary concern of those in the government. It is a
continuous duty unbridled by any political considerations.
The appointment of the petitioner, moreover, is in ful
accord with the intent behind the Local Government Code
There is no question that Section 49 in connection with
Section 52 of the Local Government Code shows clearly the
intent to provide for continuity in the performance of the
duties of the Vice-Governor.
The Local Government Code provides for the mode o
succession in case of a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a
Vice-Governor assumes the Office of the Governor
. . . refuses to assume office, fails to qualify, dies, is
removed from office, voluntary resigns or is
otherwise permanently incapacitated to discharge
the functions of his office the sangguniang
panlalawigan . . . member who obtained the
highest number of votes in the election
immediately preceding, . . . shall assume the officefor the unexpired term of the Vice-Governor. . . .
By virtue of the surroundings circumstance of this case
the mode of succession provided for permanent vacancies
may likewise be observed in case of a temporary vacancy
in the same office. In this case, there was a need to fill the
vacancy. The petitioner is himself the member of the
Sangguniang Panlalawigan who obtained the highest
number of votes. The Department Secretary acted
correctly in extending the temporary appointment.
In view of the foregoing, the petitioner's right to be paid
the salary attached to the Office of the Vice Governor is
indubitable. The compensation, however, to beremunerated to the petitioner, following the example in
Commonwealth Act No. 588 and the Revised
Administrative Code, and pursuant to the proscription
against double compensation must only be such additiona
compensation as, with his existing salary, shall not exceed
the salary authorized by law for the Office of the
Vice-Governor.
And finally, even granting that the President, acting
through the Secretary of Local Government, possesses no
power to appoint the petitioner, at the very least, the
petitioner is a de facto officer entitled to compensation.
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There is no denying that the petitioner assumed the Office
of the Vice-Governor under color of a known appointment.
As revealed by the records, the petitioner was appointed
by no less than the alter ego of the President, the Secretary
of Local Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of Department
of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The
respondents themselves acknowledged the validity of the
petitioner's appointment and dealt with him as such. Itwas only when the controversial Resolution No. 505 was
passed by the same persons who recognized him as the
acting Vice-Governor that the validity of the appointment
of the petitioner was made an issue and the recognition
withdrawn.
The petitioner, for a long period of time, exercised the
duties attached to the Office of the Vice-Governor. He was
acclaimed as such by the people of Leyte. Upon the
principle of public policy on which the de facto doctrine is
based and basic considerations of justice, it would be
highly iniquitous to now deny him the salary due him for
the services he actually rendered as the acting
Vice-Governor of the province of Leyte. (See Cantillo v.
Arrieta, 61 SCRA 55 [1974])
WHEREFORE, the COURT hereby GRANTS the motion for
reconsideration. The additional compensation which the
petitioner has received, in the amount exceeding the salary
authorized by law for the position of Senior Board
Member, shall be considered as payment for the actual
services rendered as acting Vice-Governor and may be
retained by him. SO ORDERED.
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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. andCRISPIN 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., asSecretary of Environment and Natural Resources;VICENTE V. JAYME, as Secretary of Finance; SEDFREYORDOEZ, as Secretary of Justice; FRANKLIN N.DRILON, as Secretary of Labor and Employment; LUISSANTOS, as Secretary of Local Government; FIDEL V.RAMOS, as Secretary of National Defense; TEODORO F.BENIGNO, as Press Secretary; JUANITO FERRER, asSecretary of Public Works and Highways; ANTONIOARRIZABAL, 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 Transportationand Communication; GUILLERMO CARAGUE, asCommissioner of the Budget; and SOLITA MONSOD, asHead of the National Economic DevelopmentAuthority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and
Juan T. David for petitioners in 83896.
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 thecorresponding 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, orin 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 unconstitutionalityof Executive Order No. 284, petitioner Anti-Graft League o
the Philippines further seeks in G.R. No. 83815 the
issuance of the extraordinary writs of prohibition and
mandamus, as well as a temporary restraining order
directing public respondents therein to cease and desist
from holding, in addition to their primary positions, dua
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
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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 VIIand 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, 10 being the first
official construction and interpretation by the Secretary ofJustice 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 theholding 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 VI
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 Civi
Service Commission applies to officers and employees o
the Civil Service in general and that said exceptions do not
apply and cannot be extended to Section 13, Article VIwhich 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 ex-officio
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 forappointive 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 aConstitution 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
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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 createdby 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 inreaction 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 thepeople 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 Constitutiona
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 oremployment 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 officia
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 oremployment. 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 o
his position, no appointive official shall hold any other
office or employmentin the Government."
It is quite notable that in all these provisions ondisqualifications 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, 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." 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 officia
family is therefore all-embracing and covers both publicand 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
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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 floordeliberations 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 1987Constitution. 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 thegenerality 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 I-XB 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 Vice-President 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
Suchabsurd consequence can be avoided only by interpretingthe 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. 17 Sections bearingon a particular subject should be considered and
interpreted together as to effectuate the whole purpose o
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, i
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, theirdeputies 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 witthe 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.
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
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capacity as provided by law and as required 22 by theprimary 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. 24Neither can their respective undersecretaries andassistant 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 absurdconsequences, 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 Anex-officio 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 ex-officio Chairman 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
ex-officio 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 sitex-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 newappointments 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 andCommunications acting as Chairman of the Maritime
Industry Authority 34and 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 cabine
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 andimplementing laws affecting national interest and genera
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 contro
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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 high-ranking 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 thisexception 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 reformatti