Civil Liberties Union vs.

Executive Secretary
G.R. No. 83896 | 194 SCRA 317 | February 22, 1991
Petitioner: Civil Liberties Union
office or employment in government are those provided in the Constitution
namely: 1) the Vice President may be appointed as a Cabinet member under
Section 3(2) of Article VII; 2) The Secretary of Justice is and ex-officio of the
Judicial and Bar Council by virtue of Section 8, Article VIII.

Respondent: Executive Secretary

Constitutional provisions:

FACTS: Consolidated petitions are being resolved jointly as both seek for the
declaration of the unconstitutionality of Executive Order No. 284 (EO No.
284) issued by former President Corazon C. Aquino on July 25, 1987.
EO No. 284 allows members of the Cabinet, their Undersecretaries and
Assistant Secretaries to hold other than their government positions in
addition to their primary positions.
Section 1: A Cabinet member, Undersecretary or Assistant Secretary or
other appointive officials of the Executive Department may, in addition to
his primary position, hold not more than two (2) positions in the government
and government corporations and receive corresponding compensation
thereof.
Section 2: If they hold more than the requisites of Section 1, they must
relinquish the excess position in favor of the subordinate official who is next
in rank but in no case shall any officer hold not more than two (2) positions
other than his primary position.
Section 3: At least 1/3 of the members of the boards of such corporation
should either be a Secretary, Undersecretary or Assistant Secretary.
Section 13, Article VII: The President, Vice-President, the Members of the
Cabinet and their Deputies or Assistants shall not, unless otherwise provided
by the Constitution, hold any other office or employment during their
tenure. They shall not, directly or indirectly, during their tenure, 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.
Section 8, Article VIII: 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.
ISSUE: Whether or not EO No. 284 is constitutional. NO
HELD: The Court ruled in the negative.

The court said, by allowing Cabinet members, undersecretaries or assistant

Petitioners are challenging EO No. 284's unconstitutionality as its provisions
secretaries to hold at least two positions in the government and government
are in direct contrast with Section 13, Article VII of the Constitution.
corporations, EO 284 actually allows them to hold multiple offices or
According to the petitioners, the only exceptions against holding any other
employment which is a direct contravention of the express mandate of
Article VII, Section 13 of the 1987 Constitution which prohibits them from
doing so, unless otherwise provided in the 1987 Constitution itself.

They explained that 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 which are Section 3 of
Article VII (for VP) and Section 8 of Article VIII (for Secretary of Justice).

It has been held that 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 legislative intent of both Constitutional provisions is to prevent

government officials from holding multiple positions in the government for
self enrichment which is a betrayal of public trust.

The provisions of EO No. 284 above-mentioned are in direct contradiction

to the express mandate provided by the Constitutional provisions (Sec 13,
Art VII and Sec 8, Art VIII). The Constitution, the fundamental law of the land,
shall reign supreme over any other statute. When there is conflict, it shall
be resolved in favor of the highest law of the land. Thus, the Court held that
EO No. 284 is UNCONSTITUTIONAL. As a result, DENR Secretary Fulgenio
Factoran, Jr., DILF Secretary Luis Santos, DOH Secretary Alfredo Bengzon and
DBM Secretary Guillermo Carague are ordered to immediately relinquish
their offices and employment.

WHEREFORE, subject to the qualifications stated, the petitions are

GRANTED. Executive Order No. 284 is hereby declared null and void and is
accordingly set aside.
G.R. No. 184740 February 11, 2010
DENNIS A. B. FUNA, Petitioner, vs. EXECUTIVE
SECRETARY EDUARDO R. ERMITA,
VILLARAMA, JR., J.:
Facts:
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).
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).
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.
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 Bautista’s 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 and she assumed her duties and
responsibilities as such on February 2, 2009.
Petitioner argues that Bautista’s concurrent positions as DOTC
Undersecretary and MARINA OIC is in violation of Section 13, Article VII of
the 1987 Constitution .
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.
Petitioner’s 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.
Issue:
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?
Held:
The petition is meritorious.
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.
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. But 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. In the present
case, the mootness of the petition does not bar its resolution.
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.
The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not, during his tenure, be appointed as
Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.
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.
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.
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.
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.
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.
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.

Note:
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.
LIBAN v. GORDON
Facts:
During respondent's incumbency as a member of the Senate of the
Philippines,[1] he was elected Chairman of the PNRC
Petitioners allege that by accepting the chairmanship of the PNRC Board...
of Governors, respondent has ceased to be a member of the Senate as
provided in Section 13, Article VI of the Constitution
Issues:
Whether respondent should be automatically removed as a Senator
pursuant to Section 13, Article VI of the Philippine Constitution
Ruling:
PNRC is a Private Organization Performing Public Functions... the Philippine
government does not own the PNRC. The PNRC does not have government
assets and does not receive any appropriation from the
Philippine Congress.[13] The PNRC is financed primarily by contributions
from private individuals and private entities obtained through solicitation
campaigns organized by its Board of Governors
The PNRC is not government-owned but privately owned. The vast
majority of the thousands of PNRC members are private individuals,
including students.
Thus, the PNRC is a privately owned, privately funded, and privately run
charitable organization. The PNRC is not a government-owned or
controlled corporation.
In sum, we hold that 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.
Principles:
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. However,
since the PNRC Charter is void insofar as it... creates the PNRC as a private
corporation, the PNRC should incorporate under the Corporation Code and
register with the Securities and Exchange Commission if it wants to be a
private corporation.
a position held in an ex officio capacity does not violate the constitutional
proscription on the holding of multiple offices.
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 by the primary functions of said officials'
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.
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
other than that conferred by the office." An ex 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.
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.
Dante Liban, et al. v. Richard Gordon (MR)
G.R. No. 175352, January 18, 2011 (MR)
LEONARDO-DE CASTRO, J.:
FACTS:
Petitioners Liban, et al., who were officers of the Board of Directors
of the Quezon City Red Cross Chapter, filed with the Supreme Court what
they styled as “Petition to Declare Richard J. Gordon as Having Forfeited His
Seat in the Senate” against respondent Gordon, who was elected Chairman
of the Philippine National Red Cross (PNRC) Board of Governors during his
incumbency as Senator.
Petitioners alleged that by accepting the chairmanship of the PNRC
Board of Governors, respondent Gordon ceased to be a member of the
Senate pursuant to Sec. 13, Article VI of the Constitution, which provides
that “[n]o Senator . . . 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.” Petitioners cited
the case of Camporedondo vs. NLRC, G.R. No. 129049, decided August 6,
1999, which held that the PNRC is a GOCC, in supporting their argument that
respondent Gordon automatically forfeited his seat in the Senate when he
accepted and held the position of Chairman of the PNRC Board of
Governors.
Formerly, in its Decision dated July 15, 2009, the Court, voting 7-
5,[1] held that the office of the PNRC Chairman is NOT a government office
or an office in a GOCC for purposes of the prohibition in Sec. 13, Article VI of
the 1987 Constitution. The PNRC Chairman is elected by the PNRC Board of
Governors; he is not appointed by the President or by any subordinate
government official. Moreover, the PNRC is NOT a GOCC because it is a
privately-owned, privately-funded, and privately-run charitable
organization and because it is controlled by a Board of Governors four-fifths
of which are private sector individuals. Therefore, respondent Gordon did
not forfeit his legislative seat when he was elected as PNRC Chairman during
his incumbency as Senator.
The Court however held further that the PNRC Charter, R.A. 95, as
amended by PD 1264 and 1643, is void insofar as it creates the PNRC as a
private corporation since Section 7, Article XIV of the 1935 Constitution
states that “[t]he Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such
corporations are owned or controlled by the Government or any subdivision
or instrumentality thereof.” The Court thus directed the PNRC to
incorporate under the Corporation Code and register with the Securities and
Exchange Commission if it wants to be a private corporation. The fallo of the
Decision read:
WHEREFORE, we declare that the office of the Chairman of the
Philippine National Red 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.
Respondent Gordon filed a Motion for Clarification and/or for
Reconsideration of the Decision. The PNRC likewise moved to intervene and
filed its own Motion for Partial Reconsideration. They basically questioned
the second part of the Decision with regard to the pronouncement on
the nature of the PNRC and the constitutionality of some provisions of the
PNRC Charter.
ISSUE:
Was it correct for the Court to have passed upon and decided on
the issue of the constitutionality of the PNRC charter? Corollarily: What is
the nature of the PNRC?
HELD:
[The Court GRANTED reconsideration and MODIFIED the dispositive
portion of the Decision by deleting the second sentence thereof.]
NO, it was not correct for the Court to have decided on the
constitutional issue because it was not the very lis mota of the case. The
PNRC is sui generis in nature; it is neither strictly a GOCC nor a private
corporation.
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., thus:
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 parties and 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.
[T]his Court should not have declared void certain sections of . . .
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.
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
PNRC’s corporate existence notwithstanding the effectivity of the
constitutional proscription on 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 PNRC’s contention that its
structure is sui generis. 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. 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.
[T]his Court [must] recognize the country’s 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. Under the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the
land. 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 PNRC’s special status under international humanitarian law
and as an auxiliary of the State, designated to assist it in discharging its the international community. The sections of the PNRC Charter that were
obligations under the Geneva Conventions. declared void must therefore stay.

The PNRC, as a National Society of the International Red Cross and [Thus, R.A. No. 95 remains valid and constitutional in its entirety.
Red Crescent Movement, can neither “be classified as an instrumentality of The Court MODIFIED the dispositive portion of the Decision by deleting the
the State, so as not to lose its character of neutrality” as well as its second sentence, to now read as follows:
independence, nor strictly as a private corporation since it is regulated by
international humanitarian law and is treated as an auxiliary of the State.
WHEREFORE, we declare that the office of the Chairman of the
Philippine National Red Cross is not a government office or an office in a
Although [the PNRC] is neither a subdivision, agency, or government-owned or controlled corporation for purposes of the prohibition
instrumentality of the government, nor a GOCC or a subsidiary thereof . . . in Section 13, Article VI of the 1987 Constitution.]
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. [T]he 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 country’s 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