EN BANC

[G.R. No. 147392. March 12, 2004]

BENEDICTO ERNESTO R. BITONIO, JR., petitioner, vs. COMMISSION ON A DIT a!" CE#SO D. GANGAN, C$AIRMAN O% T$E COMMISSION ON A DIT, respondents. DECISION
CA##EJO, SR., J.&

The instant petition filed under Rule 64 of the Revised Rules of Court seeks the annulment of the Decision of the Commission on Audit !C"A# dated $anuar% &'( )''1 den%in* the petitioner+s motion for the reconsideration of the C"A Notices of Disallo,ance Nos- ./0''/01'1 !.1# and ./0'1201'1 !.2# dated $ul% &1( 1../ and "cto3er .( 1../( respectivel%( involvin* the per diems the petitioner received from the 4hilippine Economic 5one Authorit% !4E5A#- 6n order to avoid multiplicit% of suits( an Amended 4etition dated Au*ust 16( )'') ,as later filed to include in the resolution of the instant petition Notice of Disallo,ance No- ./0''&01'1 !.6# dated $ul% &1( 1../ ,hich ,as 3elatedl% received 3% the petitioner on Au*ust 1&( )'')[1 [)

The antecedent facts are as follo,s7 6n 1..4( petitioner Benedicto Ernesto R- Bitonio( $r- ,as appointed Director 68 of the Bureau of 9a3or Relations in the Department of 9a3or and Emplo%ment6n a 9etter dated :a% 11( 1..1 addressed to ;onora3le Ri<alino =- Navarro( then =ecretar% of the Department of Trade and 6ndustr%( Actin* =ecretar% $ose =- Brilliantes of the Department of 9a3or and Emplo%ment desi*nated the petitioner to 3e the D"9E representative to the Board of Directors of 4E5A- =uch desi*nation ,as in pursuance to =ection 11 of Repu3lic Act No- 2.16( other,ise kno,n as the =pecial Economic 5one Act of 1..1( ,hich provides7
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Section 11. The Philippine Economic Zone Authority (PEZA) Board. There is hereby created a body corporate to be kno n as the Philippine Economic Zone Authority (PEZA)! ! The Board shall be composed o" the #irector $eneral as ex officio chairman ith ei%ht (&) members as "ollo s' the Secretaries or their representatives o" the #epartment o" Trade and (ndustry) the #epartment o" *inance) the #epartment o"

+abor and Employment) the #epartment o" ,the- (nterior and +ocal $o.ernment) the /ational Economic and #e.elopment Authority) and the Bangko Sentral ng Pilipinas) one (1) representati.e "rom the labor sector) and one (1) representati.e "rom the in.estor0business sector in the E12Z2/E. ! 3embers o" the Board shall recei.e a per diem o" not less than the amount e4ui.alent to the representation and transportation allo ances o" the members o" the Board and0or as may be determined by the #epartment o" Bud%et and 3ana%ement' Provided, however) That the per diem collected per month does not e5ceed the e4ui.alent o" "our (6) meetin%s.
As representative of the =ecretar% of 9a3or to the 4E5A( the petitioner ,as receivin* a per diem for ever% 3oard meetin* he attended durin* the %ears 1..1 to 1..2After a post audit of the 4E5A+s dis3ursement transactions( the C"A disallo,ed the pa%ment of per diems to the petitioner and thus issued the follo,in*7 !a# !3# Notice of Disallo,ance No- ./0''/01'1 !.1# dated $ul% &1( 1../ for the total sum of 4)4(1'' coverin* the period of $ul%0Decem3er 1..1> Notice of Disallo,ance No- ./0''&01'1 !.6# also dated $ul% &1( 1../ for a total amount of 41''(''' coverin* the period of $anuar% 1..6 to $anuar% 1..2>
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Notice of Disallo,ance No- ./0'1201'1 !.2# dated "cto3er .( 1../ for the total amount of 4)1'(''' coverin* the period of ?e3ruar% 1..2 to $anuar% 1../-

The uniform reason for the disallo,ance ,as stated in the Notices( as follo,s7

1abinet members) their deputies and assistants holdin% other o""ices in addition to their primary o""ice and to recei.e compensation there"ore as declared unconstitutional by the Supreme 1ourt in the 1i.il +iberties 7nion .s. E5ecuti.e Secretary. #isallo ance is in pursuance to 12A 3emorandum /o. 89:;<& datedSeptember 18) 1889 implementin% Senate 1ommittee =eport /o. >;8.
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"n Novem3er )4( 1../( the petitioner filed his motion for reconsideration to the C"A on the follo,in* *rounds7

1. The Supreme 1ourt in its =esolution dated Au%ust ?) 1881 on the motion "or clari"ication "iled by the Solicitor $eneral modi"ied its earlier rulin% in the Civil Liberties Union case hich limits the prohibition to 1abinet Secretaries) 7ndersecretaries and their Assistants. 2""icials %i.en the rank

e4ui.alent to a Secretary) 7ndersecretary or Assistant Secretary and other appointi.e o""icials belo the rank o" Assistant Secretary are not co.ered by the prohibition. ?. Section 11 o" =.A. /o. 981@ pro.ides the le%al basis "or the mo.ant to recei.e per diem. Said la as enacted in 188>) "our years a"ter the Civil Liberties Union case became "inal. (n e5pressly authoriAin% per diems) 1on%ress should be conclusi.ely presumed to ha.e been a are o" the parameters o" the constitutional prohibition as interpreted in the Civil Liberties Union case.
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"n $anuar% &'( )''1( the C"A rendered the assailed decision den%in* petitioner+s motion for reconsideration;ence( this petitionThe issue in this case is ,hether or not the C"A correctl% disallo,ed the per diems received 3% the petitioner for his attendance in the 4E5A Board of Directors+ meetin*s as representative of the =ecretar% of 9a3or@e rule in the affirmativeThe C"A anchors the disallo,ance of per diems in the case of Civil Liberties Union v. Executive Secretary ,here the Court declared EAecutive "rder No- )/4 allo,in* *overnment officials to hold multiple positions in *overnment( unconstitutional- Thus( Ca3inet =ecretaries( Bndersecretaries( and their Assistant =ecretaries( are prohi3ited to hold other *overnment offices or positions in addition to their primar% positions and to receive compensation therefor( eAcept in cases ,here the Constitution eApressl% provides- The Court+s rulin* ,as in conformit% ,ith =ection 1&( Article 866 of the 1./2 Constitution ,hich reads7
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Sec. 1<. The President) Bice:President) the 3embers o" the 1abinet) and their deputies or assistants shall not) unless other ise pro.ided in this 1onstitution) hold any other o""ice or employment durin% their tenure. They shall not) durin% their tenure) directly or indirectly) practice any other pro"ession) participate in any business or be "inancially interested in any other contract ith) or in any "ranchise) or special pri.ile%e %ranted by the $o.ernment or any subdi.ision) a%ency or instrumentality thereo") includin% any %o.ernment:o ned or controlled corporations or their subsidiaries. They shall strictly a.oid con"lict o" interest in the conduct o" their o""ice. The spouse and relati.es by consan%uinity or a""inity ithin the "ourth ci.il de%ree o" the President shall not) durin% his tenure) be appointed as members o" the 1onstitutional 1ommissions) or the 2""ice o" the 2mbudsman) or as Secretaries) 7ndersecretaries) 1hairmen) or heads o" bureaus or o""ices) includin% %o.ernment: o ned or controlled corporations and subsidiaries.

4ursuant to the Court+s rulin* in this case and the =enate Committee Report on the Accounta3ilit% of 4u3lic "fficers and 6nvesti*ations !Blue Ri33on#( the C"A issued :emorandum No- .20'&/ ,hich authori<ed the issuance of the Notices of Disallo,ances for the per diems received 3% the petitioner- 6t states7
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The 1ommission recei.ed a copy o" Senate 1ommittee =eport /o. >;8 ur%in% Cthe 1ommission on Audit to immediately cause the disallo ance o" any payment o" any "orm o" additional compensation or remuneration to cabinet secretaries) their deputies and assistants) or their representati.es in .iolation o" the rule on multiple positions and to e""ect the re"und o" any and all such additional compensation %i.en to and recei.ed by the o""icials concerned) or their representati.es) "rom the time o" the "inality o" the Supreme 1ourt rulin% in 1i.il +iberties 7nion .s. E5ecuti.e Secretary to the present.D (n the 1i.il +iberties 7nion case) the Supreme 1ourt ruled that 1abinet Secretaries) their deputies and assistants may not hold any other o""ice or employment. (t declared E5ecuti.e 2rder /o. ?&6 unconstitutional inso"ar as it allo s 1abinet members) their deputies and assistants to hold other o""ices in addition to their primary o""ice and to recei.e compensation there"or. The said decision became "inal and e5ecutory on Au%ust 18) 1881. (n .ie thereo") all unit heads0auditors0team leaders o" the national %o.ernment a%encies and %o.ernment:o ned or controlled corporations hich ha.e e""ected payment o" subEect allo ances are directed to implement the recommendation contained in the subEect Senate 1ommittee =eport by undertakin% the "ollo in% audit action' !
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The petitioner maintains that he is entitled to the pa%ment of per diems( as R-A- No2.16 specificall% and cate*oricall% provides for the pa%ment of a per diem for the attendance of the mem3ers of the Board of Directors at 3oard meetin*s of 4E5A- The petitioner contends that this la, is presumed to 3e valid> unless and until the la, is declared unconstitutional( it remains in effect and 3indin* for all intents and purposes- Neither can this la, 3e rendered nu*ator% on the 3asis of a mere memorandum circular C C"A :emorandum No- .20'&/ issued 3% the C"A- The petitioner stresses that R-A- No- 2.16 is a statute more superior than an administrative directive and the former cannot Dust 3e repealed or amended 3% the latterThe petitioner also posits that R-A- No- 2.16 ,as enacted four !4# %ears after the case of Civil Liberties Union ,as promul*ated- 6t is( therefore( assumed that the le*islature( 3efore enactin* a la,( ,as a,are of the prior holdin*s of the courts- =ince the constitutionalit% or the validit% of R-A- No- 2.16 ,as never challen*ed( the provision on the pa%ment of per diems remains in force not,ithstandin* the Civil Liberties Union case- Nonetheless( the petitioner+s position as Director 68 is not included in the enumeration of officials prohi3ited to receive additional compensation as clarified in the Resolution of the Court dated Au*ust 1( 1..1> thus( he is still entitled to receive the per diems-

The petitioner+s contentions are untena3le6t must 3e noted that the petitioner+s presence in the 4E5A Board meetin*s is solel% 3% virtue of his capacit% as representative of the =ecretar% of 9a3or- As the petitioner himself admitted( there ,as no separate or special appointment for such position=ince the =ecretar% of 9a3or is prohi3ited from receivin* compensation for his additional office or emplo%ment( such prohi3ition like,ise applies to the petitioner ,ho sat in the Board onl% in 3ehalf of the =ecretar% of 9a3or[11

The petitioner+s case stands on all fours ,ith the case of Dela Cruz v. Commission on Audit- ;ere( the Court upheld the C"A in disallo,in* the pa%ment of honoraria and per diems to the officers concerned ,ho sat as mem3ers of the Board of Directors of the National ;ousin* Authorit%- The officers concerned sat as alternates of their superiors in an ex officio capacit%- Citin* also the Civil Liberties Unioncase( the Court eAplained thus7
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CThe ex-officio position bein% actually and in le%al contemplation part o" the principal o""ice) it "ollo s that the o""icial concerned has no ri%ht to recei.e additional compensation "or his ser.ices in the said position. The reason is that these ser.ices are already paid "or and co.ered by the compensation attached to his principal o""ice. (t should be ob.ious that i") say) the Secretary o" *inance attends a meetin% o" the 3onetary Board as an ex-officio member thereo") he is actually and in le%al contemplation per"ormin% the primary "unction o" his principal o""ice in de"inin% policy in monetary bankin% matters) hich come under the Eurisdiction o" his department. *or such attendance) there"ore) he is not entitled to collect any e5tra compensation) hether it be in the "orm o" a per diem or an honorarium or an allo ance) or some other such euphemism. By hate.er name it is desi%nated) such additional compensation is prohibited by the 1onstitution.D ! Since the E5ecuti.e #epartment Secretaries) as ex-officio members o" the /FA Board) are prohibited "rom recei.in% Ce5tra (additional) compensation) hether it be in the "orm o" a per diem or an honorarium or an allo ance) or some other such euphemism)D it "ollo s that petitioners ho sit as their alternates cannot like ise be entitled to recei.e such compensation. A contrary rule ould %i.e petitioners a better ri%ht than their principals.
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=imilarl% in the case at 3ar( ,e cannot allo, the petitioner ,ho sat as representative of the =ecretar% of 9a3or in the 4E5A Board to have a 3etter ri*ht than his principal- As the representative of the =ecretar% of 9a3or( the petitioner sat in the Board in the same capacit% as his principal- @hatever la,s and rules the mem3er in the Board is covered( so is the representative> and ,hatever prohi3itions or restrictions the mem3er is su3Dected( the representative is( like,ise( not eAempted- Thus( his position as Director 68 of the D"9E ,hich the petitioner claims is not covered 3% the constitutional

prohi3ition set 3% the Civil Liberties Union case is of no moment- The petitioner attended the 3oard meetin*s 3% the authorit% *iven to him 3% the =ecretar% of 9a3or to sit as his representative- 6f it ,ere not for such desi*nation( the petitioner ,ould not have 3een in the Board at allThere is also no merit in the alle*ation that the le*islature ,as certainl% a,are of the parameters set 3% the Court ,hen it enacted R-A- No- 2.16( four !4# %ears after the finalit% of the Civil Liberties Union case- The pa%ment of per diems ,as clearl% an eApress *rant in favor of the mem3ers of the Board of Directors ,hich the petitioner is entitled to receive6t is a 3asic tenet that an% le*islative enactment must not 3e repu*nant to the hi*hest la, of the land ,hich is the Constitution- No la, can render nu*ator% the Constitution 3ecause the Constitution is more superior to a statute- 6f a la, happens to infrin*e upon or violate the fundamental la,( courts of Dustice ma% step in to nullif% its effectiveness- 6t is the task of the Court to see to it that the la, must conform to the Constitution- 6n the clarificator% resolution issued 3% the Court in the Civil Liberties Union case on Au*ust 1( 1..1( the Court addressed the issue as to the eAtent of the eAercise of le*islative prero*ative( to ,it7
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The Solicitor $eneral ne5t asks' C5 5 5 may the #ecision then control or other ise encroach on the e5clusi.e competence o" the le%islature to pro.ide "unds "or a public purpose) in terms o" compensation or honoraria under e5istin% la s) here in the absence o" such pro.ision said la s ould other ise meet the terms o" the Ce5ception by la GD A%ain) the 4uestion is anchored on a misperception. (t must be stressed that the so:called Ce5clusi.e competence o" the le%islature to pro.ide "unds "or a public purposeD or to enact all types o" la s) "or that matter) is not unlimited. Such competence must be exercised within the framework of the fundamental law from which the Legislature draws its power and with which the resulting legislation or statute must conform. When the Court sets aside legislation for being violative of the Constitution, it is not thereby substituting its wisdom for that of the Legislature or encroaching upon the latters prerogative, but again simply discharging its sacred task of safeguarding and upholding the paramount law.
The framers of R-A- No- 2.16 must have reali<ed the fla, in the la, ,hich is the reason ,h% the la, ,as later amended 3% R-A- No- /24/ to cure such defect- 6n particular( =ection 11 of R-A- No- 2.16 ,as amended to read7
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SE1T(2/ 11. he Philippine !conomic "one #uthorit$ %P!"#& Board' There is hereby created a body corporate to be kno n as the Philippine Economic Zone Authority (PEZA) attached to the #epartment o" Trade and (ndustry. The Board shall ha.e a director %eneral ith the rank o" department undersecretary ho shall be appointed by the President. The director %eneral shall be at least "orty (6;) years o" a%e) o" pro.en probity and inte%rity) and a de%ree holder in any o" the "ollo in%

"ields' economics) business) public administration) la ) mana%ement or their e4ui.alent) and ith at least ten (1;) years rele.ant orkin% e5perience pre"erably in the "ield o" mana%ement or public administration. The director %eneral shall be assisted by three (<) deputy directors %eneral each "or policy and plannin%) administration and operations) ho shall be appointed by the PEZA Board) upon the recommendation o" the director %eneral. The deputy directors %eneral shall be at least thirty:"i.e (<>) years old) ith pro.en probity and inte%rity and a de%ree holder in any o" the "ollo in% "ields' economics) business) public administration) la ) mana%ement or their e4ui.alent. he !oard shall be composed of thirteen "#$% members as follows ' the Secretary o" the #epartment o" Trade and (ndustry as 1hairman) the #irector $eneral o" the Philippine Economic Zone Authority as Bice:chairman) the undersecretaries o" the #epartment o" *inance) the #epartment o" +abor and Employment) the #epartment o" ,the- (nterior and +ocal $o.ernment) the #epartment o" En.ironment and /atural =esources) the #epartment o" A%riculture) the #epartment o" Public Horks and Fi%h ays) the #epartment o" Science and Technolo%y) the #epartment o" Ener%y) the #eputy #irector $eneral o" the /ational Economic and #e.elopment Authority) one (1) representati.e "rom the labor sector) and one (1) representati.e "rom the in.estors0business sector in the E12Z2/E. (n case o" the una.ailability o" the Secretary o" the #epartment o" Trade and (ndustry to attend a particular board meetin%) the #irector $eneral o" PEZA shall act as 1hairman.
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As can 3e *leaned from a3ove( the mem3ers of the Board of Directors ,as increased from / to 1&( specif%in* therein that it is the undersecretaries of the different Departments ,ho should sit as 3oard mem3ers of the 4E5A- The option of desi*natin* his representative to the Board 3% the different Ca3inet =ecretaries ,as deleted- 9ike,ise( the last para*raph as to the pa%ment of per diems to the mem3ers of the Board of Directors ,as also deleted( considerin* that such stipulation ,as clearl% in conflict ,ith the proscription set 3% the Constitution4rescindin* from the a3ove( the petitioner is( indeed( not entitled to receive a per diem for his attendance at 3oard meetin*s durin* his tenure as mem3er of the Board of Director of the 4E5AIN #IG$T O% T$E %OREGOING, the petition is D6=:6==ED- The assailed decision of the C"A is A??6R:EDSO ORDERED. Davide, r., C. ., !itu", #nares$Santia"o, Sandoval$%utierrez, Carpio, Austria$ &artinez, Corona, Carpio$&orales, Azcuna, and 'in"a, .,concur. (uno, ., on leave. (an"aniban, -( "n official leave)uisumbin", ., No part( due prior EAecutive action at D"9E-

C"A Decision No- )''10'41 si*ned 3% Commissioner Celso D- Ean*an( Chairman( ,ith Commissioners Emmanuel :- Dalman and Raul C- ?lores concurrin*- *ollo, p- )2[1 [)

*ollo, p- ./Annex FA(G *ollo, p- 1&16ncluded per Amended 4etition*ollo, pp- 1&601&/+d- at )/1.4 =CRA &12 !1..1#-

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F=ECT6"N 1- Even if allo,ed 3% la, or 3% the ordinar% functions of his position( a mem3er of the Ca3inet( undersecretar% or assistant secretar% or other appointive officials of the EAecutive Department ma%( in addition to his primar% position( hold not more than t,o positions in the *overnment and *overnment corporations and receive the correspondin* compensation therefor> 4rovided( that this limitation shall not appl% to ad hoc 3odies or committees( or to 3oards( councils or 3odies of ,hich the 4resident is the Chairman[/ [.

*ollo, p- 141 +d- at 11+d- at 1&21 =CRA 112 !)''1#+d- at 164AHuino v. C":E9EC, )4/ =CRA 4'' !1..1#=ee Earcia v. :ata, 61 =CRA 112 !1.21#Enacted on $une 1( 1...=ection 1( Repu3lic Act No- /24/-

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