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FIRST DIVISION

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

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

D E C I S I O N

KAPUNAN, J .:

On June 13, 1991, President Corazon C. Aquino issuedAdministrative Order No. 223 constituting aCommittee for the preparation of the National Centennial Celebration in 1998. The Committee wasmandated to take charge of the nationwide preparations for the National Celebration of the PhilippineCentennial of the Declaration of Philippine Independence and the Inauguration of the MalolosCongress. i[1]

Subsequently, President Fidel V. Ramos issued Executive Order No. 128, reconstituting th e Committeefor the preparation of the National Centennial Celebrations in 1998. It renamed the Committee as theNational Centennial Commission. Appointed to chair the reconstituted Commission was Vice -President Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were namedHonorary Chairpersons.ii[2]

Characterized as an ad -hoc body, the existence of the Commission shall terminate upon thecompletion of all activities related to the Centennial Celebrations. iii[3] Like its predecessor Committee,the Commission was tasked to take charge of the nationwide preparations for the National Celebration ofthe Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of theMalolos Congress.

Per Section 6 of the Executive Order, the Commission was also charged with the responsibility toprepare, for approval of the President, a Comprehensive Plan for the Centennial Celebrations within six(6) months from the effectivity of the Executive Order.

E.O. No. 128 also contained provisions for staff support and funding:

Sec. 3. The Commission shall be provided with technical and administrative staff support by a Secretariatto be composed of, among others, detailed personnel from the Presidential Management Staff, the National Commission for Culture and the Arts, and the National Historical Institute. Said Secretariatshall be headed by a full time Executive Director who shall be designated by the President.

Sec. 4. The Commission shall be funded with an initial budget to be drawn from the Department ofTourism and the presidents Contingent Fund, in an amount to be recommended by the Commission, andapproved by the President. Appropriations for succeeding years shall be incorporated in the budget of theOffice of the President.

Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) wascreated.iv[4] Petitioner was among the nine (9) Expocorp incorporators, who were also its first nine (9)directors. Petitioner was elected Expocorp Chief Executive Officer.

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On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senatedenouncing alleged anomalies in the construction and operation of the Centennial Exposition Project atthe Clark Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator Cosetengs privilegespeech was referred to the Committee on Accountability of Public Officers and Investigation (The BlueRibbon Committee) and several other Senate Committees for investigation.

On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating an ad hocand independent citizens committee to investigate all the facts and circumstances surrounding thePhilippine centennial projects, including its component activities. Former Senator Rene A.V. Saguisagwas appointed to chair the Committee.

On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate itsCommittee Final Report No. 30 dated February 26, 1999. Among the Committees rec ommendations wasthe prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP forviolating the rules on public bidding, relative to the award of centennial contracts to AK (AsiaConstruction & Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice toProceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid contract that hascaused material injury to government and for participating in the scheme to preclude audit by COA of thefunds infused by the government for the implementation of the said contracts all in violation of theanti-graft law. v[5]

Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended the furtherinvestigation by the Ombudsman, and indictment, in proper cases of, among others, NCC Chair SalvadorH. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.

The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27, 2000, the Bureauissued its Evaluation Report, recommending:

1. that a formal complaint be filed and preliminary investigation be conducted before the Evaluationand Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against former NCC andEXPOCORP chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Pea and AK PresidentEdgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD1594 and COA Rules and Regulations;

2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant.vi[6]

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and PreliminaryInvestigation Bureau, directed petitioner to submit his counter-affidavit and those of his witnesses.

On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioningthe jurisdiction of said office.

In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to dismiss.

On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the motion wasdenied in an Order dated October 5, 2000.

On October 25, 2000, petitioner filed the present petition for certiorari.

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Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section15 (1) of R.A. 6770 (An Act Providing for the Functional and Structural Organization of the Office ofthe Ombudsman, and for other purposes) which vests upon the Ombudsman primary jurisdiction overcases cognizable by the Sandiganbayan And this is further buttressed by Section 11 (4a) of R.A. 6770which emphasizes that theOffice of the Special Prosecutor shall have the power to conduct preliminaryinvestigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. Thus, repeatedreferences to the Sandiganbayans jurisdiction clearly serve to limit the Ombudsmans and SpecialProsecutors authority to cases cognizable by the Sandiganbayan. [Emphasis in the original.]

The foregoing ruling inUy, however, was short-lived. Upon motion for clarification by the Ombudsmanin the same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20,2001. The Court explained the rationale for this reversal:

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified.It pertains toany act or omission of any public officer or employee when such act or omissionappears to be illegal, unjust, improper or inefficient. The law does not make a distinction betweencases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that theclause any illegal act or omission of any public official is broad enough to embrace any crimecommitted by a public officer or employee.

The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1)giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecutecriminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining thescope of the investigatory and prosecutory power of the Ombudsman to such cases.

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by theSandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman to take over,at any stage, from any investigatory agency of the government, the investigation of such cases. The grantof this authority does not necessarily imply the exclusion from its jurisdiction of cases involving publicofficers and employees by other courts. The exercise by the Ombudsman of his primary jurisdiction overcases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigateand prosecute other offenses committed by public officers and employees. Indeed, it must be stressed thatthe powers granted by the legislature to the Ombudsman are very broad and encompass all kinds ofmalfeasance, misfeasance and non-feasance committed by public officers and employees during theirtenure of office.

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limitedauthority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor ismerely a component of the Office of the Ombudsman and may only act under the supervision and controland upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute islimited tocriminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers didnot intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases.The Ombudsman is mandated by law to act on all complaints against officers and employees of thegovernment and to enforce their administrative, civil and criminal liability in every case where theevidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/ordesignate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputizedto assist him work under his supervision and control. The law likewise allows him to direct the Special

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Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11 (4c)of RA 6770.

The prosecution of offenses committed by public officers and employees is one of the most importantfunctions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsmanwith such power to make him a more active and effective agent of the people in ensuring accountability in public office. A review of the development of our Ombudsman law reveals this intent. [Emphasis in theoriginal.]

Having disposed of this contention, we proceed to the principal grounds upon which petitioner relies. Wefirst address the argument that petitioner, as Chair of the NCC, was not a public officer.

The Constitutionx[10] describesthe Ombudsman and his Deputies as protectors of the people, whoshall act promptly on complaints filed in any form or manner against public officials or employees ofthe government, or any subdivision, agency or instrumentality thereof, including government-owned orcontrolled corporations. Among the awesome powers, functions, and duties vested by theConstitutionxi[11]upon the Office of the Ombudsman is to [i]nvestigate any act or omission of anypublic official, employee, office or agency, when such act or omission appears to be illegal, unjust,improper, or inefficient.

The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise knownas the Ombudsman Act of 1989. Sections 13 and 15(1) of said law respectively provide:

SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people shall act promptly oncomplaints file in any form or manner against officers or employees of the Government, or of anysubdivision, agency or instrumentality thereof, including government-owned or controlled corporations,and enforce their administrative, civil and criminal liability in every case where the evidence warrants inorder to promote efficient service by the Government to the people.

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any publicofficer or employee, office or agency, when such act or omission appears to be illegal unjust, improper orinefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise ofthis primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government,the investigation of such cases;

x x x.

The coverage of the law appears to be limited only by Section 16, in relation to Section 13, supra :

SEC 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasanceand non-feasance that have been committed by any officer or employee as mentioned in Section 13hereof, during his tenure of office.

In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance bya public officer or employee of the government, or of any subdivision, agency or instrumentality thereof,including government-owned or controlled corporations.xii[12]

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Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. Adefinition of public officers cited in jurisprudencexiii[13] is that provided by Mechem, a recognizedauthority on the subject:

A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested withsome portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.xiv[14]

The characteristics of a public office, according to Mechem, include the delegation of sovereignfunctions, its creation by law and not by contract, an oath, salary, continuance of the position, scope ofduties, and the designation of the position as an office.xv[15]

Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely:(1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive anycompensation; and (3) continuance, the tenure of the NCC being temporary.

Mechem describes the delegation to the individual of some of the sovereign functions of government as[t]he most important characteristic in determining whether a position is a publ ic office or not.

The most important characteristic which distinguishes an office from an employment or contract is thatthe creation and conferring of an office involves a delegation to the individual of some of the sovereignfunctions of government, to be exercised by him for the benefit of the public; that some portion of thesovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to beexercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.xvi[16]

Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the lawdid not delegate upon the NCC functions that can be described as legislative or judicial. May the

functions of the NCC then be described as executive?We hold that the NCC performs executive functions. The executive power is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation andenforcing their due observance. xvii[17] The executive function, therefore, concerns the implementationof the policies as set forth by law.

The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports)thereof:

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nations historical and cultural heritage and resources, as well as artistic creations.

In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the NationalCentennial Celebrations in 1998:

Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important vehicle for fostering nationhood and a strong sense of Filipino identity;

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Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipinovalues;

Whereas, the success of the Centennial Celebrations may be insured only through long-range planningand continuous developmental programming;

Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly in communication and information dissemination, is necessary for long-range planning andcontinuous developmental programming;

Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessingthe multisectoral components from the business, cultural, and business sectors to serve as effectiveinstruments from the launching and overseeing of this long-term project;

x x x.

E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the

need to strengthen the said Committee to ensure a more coordinated and synchronized celebrations ofthe Philippine Centennial and wider participation from the government and non-government or privateorganizations. It also referred to the need to rationalize the relevance of historical links with othercountries.

The NCC was precisely created to execute the foregoing policies and objectives, to carry them intoeffect. Thus, the Commission was vested with the following functions:

(a) To undertake the overall study, conceptualization, formulation and implementation of programsand projects on the utilization of culture, arts, literature and media as vehicles for history, economicendeavors, and reinvigorating the spirit of national unity and sense of accomplishment in every Filipino inthe context of the Centennial Celebrations. In this regard, it shall include a Philippine National

Exposition 98 within Metro Manila, the original eight provinces, and Clark Air Base as its major venues; (b) To act as principal coordinator for all the activities related to awareness and celebration of theCentennial;

(c) To serve as the clearing house for the preparation and dissemination of all information about the plans and events for the Centennial Celebrations;

(d) To constitute working groups which shall undertake the implementation of the programs and projects;

(e) To prioritize the refurbishment of historical sites and structures nationwide. In this regard, theCommission shall formulate schemes (e.g. lease-maintained-and-transfer, build-operate-transfer, andsimilar arrangements) to ensure the preservation and maintenance of the historical sites and structures;

(f) To call upon any government agency or instrumentality and corporation, and to invite privateindividuals and organizations to assist it in the performance of its tasks; and,

(g) Submit regular reports to the President on the plans, programs, projects, activities as well as thestatus of the preparations for the Celebration.xviii[18]

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It bears noting the President, upon whom the executive power is vested,xix[19] created the NCC byexecutive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2 describesthe nature of executive orders:

SEC. 2. Executive Orders. Acts of the President providing for rules of a general or permanent characterin implementation or execution of constitutional or statutory powers shall be promulgated inexecutiveorders . [Underscoring ours.]

Furthermore, the NCC was not without a role in the countrys economic development, especially inCentral Luzon. Petitioner himself admitted as much in the oral arguments before this Court:

MR. JUSTICE REYNATO S. PUNO:

And in addition to that expounded by Former President Ramos, dont you agree that thetask of the centennial commission was also to focus on the long term over all socio economicdevelopment of the zone and Central Luzon by attracting investors in the area because of the eruption ofMt. Pinatubo.

FORMER VICE PRESIDENT SALVADOR H. LAUREL:

I am glad Your Honor touched on that because that is something I wanted to touch on bylack of material time I could not but that is a very important point. When I was made Chairman I wantedthe Expo to be in Batangas because I am a Batangeo but President Ramos said Mr. Vice President theCentral Luzon is suffering, suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic]economic recovery in that area by putting this Expo in Clark Field and so it was done I agreed and YourHonor if I may also mention we wanted to generate employment aside from attracting businessinvestments and employment. And the Estrada administration decided to junk this project there 48, 40thousand people who lost job, they were employed in Expo. And our target was to provide 75 thousand jobs. It would have really calibrated, accelerated the development of Central Luzon. Now, I think they

are going back to that because they had the airport and there are plan to revive the Expo site into key parkwhich was the original plan.

There can hardly be any dispute that the promotion of industrialization and full employment is afundamental state policy.xx[20]

Petitioner invokes the ruling of this Court inTorio vs. Fontanilla xxi[21] that the holding by amunicipality of a town fiesta is a proprietary rather than a governmental function. Petitioner argues thatthe holding of a nationwide celebration which marked the nations 100 th birthday may be likened to anational fiesta which involved only the exercise of the national governments proprietaryfunction. xxii[22] InTorio , we held:

[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply givesauthority to the municipality to [celebrate] a yearly fiesta but it does not impose upon it a duty to observeone. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town isin essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the celebration, as claimed, was not tosecure profit or gain but merely to provide entertainment to the town inhabitants is not a conclusive test.For instance, the maintenance of parks is not a source of income for the town, nonetheless it is [a] privateundertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service.

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As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of anundertaking or function of a municipality; the surrounding circumstances of a particular case are to beconsidered and will be decisive. The basic element, however beneficial to the public the undertaking may be, is that it is government in essence , otherwise, the function becomes private or propriety in character.Easily, no governmental or public policy of the state is involved in the celebration of a town fiesta.

Torio , however, did not intend to lay down an all-encompassing doctrine. Note that the Court cautionedthat there can be no hard and fast rule for purposes of determining the true nature of an underta king orfunction of a municipality; the surrounding circumstances of a particular case are to be considered andwill be decisive. Thus, in footnote 15 of Torio , the Court, citing an American case, illustrated how thesurrounding circumstances plus the political, social, and cultural backgrounds could produce aconclusion different from that inTorio :

We came across an interesting case which shows that surrounding circumstances plus the political, social,and cultural backgrounds may have a decisive bearing on this question. The case of Pope v. City of New

Haven, et al. was an action to recover damages for personal injuries caused during a Fourth of Julyfireworks display resulting in the death of a bystander alleged to have been caused by defendantsnegligence. The defendants demurred to the complaint invoking the defense that the city was engaged inthe performance of a public governmental duty from which it received no pecuniary benefit and fornegligence in the performance of which no statutory liability is imposed. This demurrer was sustained bythe Superior Court of New Haven Country. Plaintiff sought to amend his complaint to allege that thecelebration was for the corporate advantage of the city. This was denied. In affirming the order, theSupreme Court of Errors of Connecticut heldinter alia :

Municipal corporations are exempt from liability for the negligent performance of purely publicgovernmental duties, unless made liable by statute.

A municipality corporation, which under permissive authority of its charter or of statute, conducted a public Fourth of July celebration, including a display of fireworks, and sent up a bomb intended toexplode in the air, but which failed to explode until it reached the ground, and then killed a spectator, wasengaged in the performance of a governmental duty. (99 A.R. 51)

This decision was concurred in by three Judges while two dissented.

At any rate the rationale of the Majority Opinion is evident from [this] excerpt:

July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our statutes. All or nearly all of the other states have similar statutes. While there is no United Statesstatute making a similar provision, the different departments of the government recognize, and haverecognized since the government was established, July 4th as a national holiday. Throughout the countryit has been recognized and celebrated as such. These celebrations, calculated to entertain and instruct the

people generally and to arouse and stimulate patriotic sentiments and love of country, frequently take theform of literary exercises consisting of patriotic speeches and the reading of the Constitution,accompanied by a musical program including patriotic air sometimes preceded by the firing of cannonand followed by fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. x xx

Surely, a town fiesta cannot compare to the National Centennial Celebrations. The CentennialCelebrations was meant to commemorate the birth of our nation after centuries of struggle against ourformer colonial master, to memorialize the liberation of our people from oppression by a foreign power.

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1998 marked 100 years of independence and sovereignty as one united nation. The Celebrations was anoccasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it, it was a vehicl efor fostering nationhood and a strong sense of Filipino identity, an opportunity to showcase Filipinoheritage and thereby strengthen Filipino values. The significance of the Celebrations could not have beenlost on petitioner, who remarked during the hearing:

Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle the love forfreedom, love for country, that is the over-all goal that has to make everybody feel proud that he is aFilipino, proud of our history, proud of what our forefather did in their time. x x x.

Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as itsChair, is a public officer.

That petitioner allegedly did not receive any compensation during his tenure is of little consequence. Asalary is a usual but not a necessary criterion for determining the nature of the position. It is notconclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees isannexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merelyfor the public good.xxiii[23] Hence, the office of petitioner as NCC Chair may be characterized as anhonorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary,compensation or fees are attached.xxiv[24] But it is a public office, nonetheless.

Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad -hoc body make saidcommission less of a public office.

The term office, it is said, embraces the idea of tenure and duration, and certainly a position which ismerely temporary and local cannot ordinarily be considered an office. But, says Chief Justice Marshall,if a duty be a continuing one, which is def ined by rules prescribed by the government and not bycontract, which an individual is appointed by government to perform, who enters on the duties pertainingto his station without any contract defining them, if those duties continue though the person be changed, -- it seems very difficult to distinguish such a charge or employment from an office of the person who

performs the duties from an officer.

At the same time, however,this element of continuance can not be considered as indispensable, for, ifthe other elements are present it can make no difference, says Pearson, C.J.,whether there be butone act or a series of acts to be done, -- whether the office expires as soon as the one act is done, oris to be held for years or during good behavior. xxv[25]

Our conclusion that petitioner is a public officer finds support in In Re Corliss .xxvi[26] There theSupreme Court of Rhode Island ruled that the office of Commissioner of the United States CentennialCommission is an office of trust as to disqualify its holder as elector of the United States President andVice-President. (Under Article II of the United States Constitution, a person holding an office of trust or

profit under the United States is disqualified from being appointed an elector.)x x x. We think a Commissioner of the United States Centennial Commission holds an office of trustunder the United States, and that he is therefore disqualified for the office of elector of President andVice-President of the United States.

The commission was created under a statute of the United States approved March 3, 1871. That statute provides for the holding of an exhibition of American and foreign arts, products, and manufactures,under the auspices of the government of the United States, and for the consti tution of a commission, to

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consist of more than one delegate from each State and from each Territory of the United States, whosefunctions shall continue until close of the exhibition, and whose duty it shall be to prepare andsuperintend the executionof the plan for holding the exhibition. Under the statute the commissioners areappointed by the President of the United States, on the nomination of the governor of the States andTerritories respectively. Various duties were imposed upon the commission, and under the statute provision was to be made for it to have exclusive control of the exhibit before the President shouldannounce, by proclamation, the date and place of opening and holding the exhibition. By an act ofCongress approved June 1st, 1872, the duties and functions of the commission were further increased anddefined. That act created a corporation, called The Centennial Board of Finance, to cooperate with thecommission and to raise and disburse the funds. It was to be organized under the direction of thecommission. The seventh section of the act provides that the grounds for exhibition shall be preparedand the buildings erected by the corporation, in accordance with plans which shall have been adopted bythe United States Centennial Commission; and the rules and regulations of said corporation, governingrates for entrance and admission fees, or otherwise affecting the rights, privileges, or interests of theexhibitors, or of the public, shall be fixed and established by the United States Centennial Commission;and no grant conferring rights or privileges of any description connected with said grounds or buildings,or relating to said exhibition or celebration, shall be made without the consent of the United StatesCentennial Commission, and said commission shall have power to control, change, or revoke all suchgrants, and shall appoint all judges and examiners and award all premiums. The tenth section of the act

provides that it shall be the duty of the United States Centennial Co mmission to supervise the closing upof the affairs of said corporation, to audit its accounts, and submit in a report to the President of theUnited States the financial results of the centennial exhibition.

It is apparent from this statement, which is but partial, that the duties and functions of the commissionwere various, delicate, and important; that they could be successfully performed only by men of largeexperience and knowledge of affairs; and that they were not merely subordinate and provisional, but inthe highest degree authoritative, discretionary, and final in their character. We think that persons performing such duties and exercising such functions, in pursuance of statutory direction and authority,are not to be regarded as mere employees, agents, or committee men, but that they are, properly speaking,officers, and that the places which they hold are offices. It appears, moreover, that they were originallyregarded as officers by Congress; for the act under which they were appointed declares, section 7, thatno compensation for services shall be paid to the commissioners or other officers , provided for in thisact, from the treasury of the United States. The only other officers provided for were the alternatesappointed to serve as commissioners when the commissioners were unable to attend.

Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a publicoffice, we need no longer delve at length on the issue of whether Expocorp is a private or a publiccorporation. Even assuming that Expocorp is a private corporation, petitioners position as ChiefExecutive Officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his actsor omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCCChair.xxvii[27]

Finally, it is contended that since petitioner supposedly did not receive any compensation for his servicesas NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman.

Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads:

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SEC. 3.Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of anypublic officer and arehereby declared to be unlawful:

x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party anyunwarranted benefits, advantage or preference in the discharge of his official, administrative or judicialfunctions through manifest partiality, evident bad faith or gross inexcusable negligence. This provisionshall apply to officers and employees of offices or government corporations charged with the grant oflicenses or permits or other concessions.

A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows:

SEC. 2. Definition of terms . As used in this Act, the term

x x x

(b) Public officer includes elective and appointive officials and employees, permanent or temporary,whether in the classified or unclassified or exemption servicereceiving compensation, even nominal,from the government as defined in the preceding paragraph. [Emphasis supplied.]

It is clear from Section 2 (b), above, that the definition of a public officer is expressly limited to theapplication of R.A. No. 3019. Said definition does not apply for purposes of determining theOmbudsmans jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989.

Moreover, the question of whether petitioner is a public officer under the Anti-Graft and CorruptPractices Act involves the appreciation of evidence and interpretation of law, matters that are bestresolved at trial.

To illustrate, the use of the term includes in Section 2 (b) indicates that the definition is notrestrictive.xxviii[28] The Anti-Graft and Corrupt Practices Act is just one of several laws that definepublic officers. Article 203 of the Revised Penal Code, for example, provides that a public officer is:

x x x any person who, by direct provision of law, popular election or appointment by competent authority,takes part in the performance of public functions in the Government of Philippines, or performs in saidGovernment or in any of its branches public duties as an employee, agent or subordinate official, of anyrank or class.

Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,xxix[29] on the otherhand, states:

Officer as distinguished from clerk or employee, refers to a person whose duties not being of aclerical or manual nature, involves the exercise of discretion in the performance of the functions of thegovernment. When used with reference to a person having authority to do a particular act or perform a

particular person in the exercise of governmental power, officer includes any government employee,agent or body having authority to do the act or exercise that function.

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It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and EthicalStandards for Public Officials and Employees), one may be considered a public official whether or notone receives compensation, thus:

Public Officials include elective and appointive officials and employees, permanent or temporary,whether in the career or non-career service including military and police personnel, whether or not theyreceive compensation, regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term compensation,which is not defined by said law, has many meanings.

Under particular circumstances, compensation has been held to include allowance for personalexpenses, commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments forservices, restitution or a balancing of accounts, salary, and wages.xxx[30]

How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted?Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive anysalary, the records do not reveal if he received any allowance, fee, honorarium, or some other form ofcompensation. Notably, under the by-laws of Expocorp, the CEO is entitled to per diems andcompensation.xxxi[31] Would such fact bear any significance?

Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial courtfrom resolving them.

WHEREFORE, the petition is DISMISSED . The preliminary injunction issued in the Courts Resolutiondated September 24, 2001 is hereby LIFTED .

SO ORDERED.

Puno, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., (Chairman), no part due to close relation to a party.

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,vs.THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,vs.PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, asSecretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture andSports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources;

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VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice;FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary ofLocal Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F.BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways;ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, asSecretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism;ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary ofTransportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget;and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.

Antonio P. Coronel for petitioners in 83815.

FERNAN,C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued byPresident Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Orderare:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member ofthe Cabinet, undersecretary or assistant secretary or other appointive officials of theExecutive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the correspondingcompensation therefor; Provided , that this limitation shall not apply to ad hoc bodies orcommittees, 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 otherappointive official of the Executive Department holds more positions than what isallowed in Section 1 hereof, they ( sic ) must relinquish the excess position in favor of thesubordinate official who is next in rank, but in no case shall any official hold more thantwo positions other than his primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned orcontrolled corporations, at least one-third (1/3) of the members of the boards of suchcorporation 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 VIIof the 1987 Constitution,2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies orassistants shall not, unless otherwise provided in this Constitution, hold any other officeor employment during their tenure. They shall not, during said tenure, directly orindirectly practice any other profession, participate in any business, or be financiallyinterested in any contract with, or in any franchise, or special privilege granted by the

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Government or any subdivision, agency, or instrumentality thereof, includinggovernment-owned or controlled corporations or their subsidiaries. They shall strictlyavoid 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 theCabinet, 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. 838964 from holding any other office or employment during theirtenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of theextraordinary writs of prohibition andmandamus , as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual ormultiple 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 thatthey 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 SedfreyOrdoez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered onJuly 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 theSecretary of Justice who is made anex-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 theirrespective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25,1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284.6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in anotherarticle, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, eachaddressed 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, theVice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders ofgovernment 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, noappointive official shall hold any other office or employment in the government or any

subdivision, agency or instrumentality thereof, including government-owned orcontrolled corporations or their subsidiaries .

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as furtherelucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of1988, 10 being the first official construction and interpretation by the Secretary of Justice of Section 13,Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject ofappointments or designations of an appointive executive official to positions other than his primary

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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 thatDOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitationimposed by E.O. No. 284 as not applying toex-officio positions or to positions which, although not sodesignated asex-officio are allowed by the primary functions of the public official, but only to the holdingof multiple positions which are not related to or necessarily included in the position of the public officialconcerned (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 theConstitution. According to petitioners, by virtue of the phrase "unless otherwise provided in thisConstitution," the only exceptions against holding any other office or employment in Government arethose provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of theCabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is anex-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 theCivil Service Commission applies to officers and employees of the Civil Service in general and that saidexceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically tothe 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 Cabinetand their deputies or assistants from holding dual or multiple positions in the Government admits ofcertain 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 thisConstitution" used in Section 13 of Article VII, the exception must be expressly provided in theConstitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet underthe second paragraph of Section 3, Article VII or the Secretary of Justice being designated anex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the otherhand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VIImakes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned thereinare concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broadexceptions made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easyreference 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 anysubdivision, agency or instrumentality thereof, including government-owned or controlled corporation ortheir subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision underconsideration. Thus, it has been held that the Court in construing a Constitution should bear in mind theobject sought to be accomplished by its adoption, and the evils, if any, sought to be prevented orremedied. A doubtful provision will be examined in the light of the history of the times, and the conditionand circumstances under which the Constitution was framed. The object is to ascertain the reason whichinduced the framers of the Constitution to enact the particular provision and the purpose sought to be

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accomplished thereby, in order to construe the whole as to make the words consonant to that reason andcalculated to effect that purpose.11

The practice of designating members of the Cabinet, their deputies and assistants as members of thegoverning bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this countrywere exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There wasa proliferation of newly-created agencies, instrumentalities and government-owned and controlledcorporations created by presidential decrees and other modes of presidential issuances where Cabinetmembers, their deputies or assistants were designated to head or sit as members of the board with thecorresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of theseinstrumentalities have remained up to the present time.

This practice of holding multiple offices or positions in the government soon led to abuses byunscrupulous 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 BatasangPambansa.12 This condemnation came in reaction to the published report of the Commission on Audit,entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations,Self-Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership inGoverning 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 servicewere 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 andGeronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta andJose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas ofeleven (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 Marcosregime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfullyunseated former President Marcos, should draft into its proposed Constitution the provisions underconsideration which are envisioned to remedy, if not correct, the evils that flow from the holding ofmultiple 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 Constitutionduring 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 unconscionablyexcessive 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 bothelective and appointive public officials, the Constitutional Commission should see it fit to formulateanother provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members ofthe Cabinet, their deputies and assistants from holding any other office or employment during theirtenure, unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions inquestion, the intent of the framers of the Constitution was to impose a stricter prohibition on the President

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and his official family in so far as holding other offices or employment in the government or elsewhere isconcerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions ofthe Constitution on the disqualifications of certain public officials or employees from holding otheroffices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House ofRepresentatives may hold any other office or employmentin 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 inany capacity to a civilian positionin the Government, including government-owned or controlledcorporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointiveofficial shall hold any other office or employmentin the Government ."

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employmentin the government and government-owned or controlledcorporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII whichstates that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistantsshall not, unless otherwise provided in this Constitution, hold any other office or employment during theirtenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in theGovernment." The prohibition imposed on the President and his official family is therefore all-embracingand covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during saidtenure, directly or indirectly, practice any other profession, participate in any business, or be financiallyinterested in any contract with, or in any franchise, or special privilege granted by the Government or anysubdivision, agency or instrumentality thereof, including government-owned or controlled corporations ortheir subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his officialfamily, which prohibitions are not similarly imposed on other public officials or employees such as theMembers 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 itselfand to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official familywas also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambongnoted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the ExecutiveDepartment. Commissioner Foz Commented, "We actually have to be stricter with the President and themembers of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints onthem 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 oremployment in the government during their tenure when such is allowed by law or by the primaryfunctions of their positions, members of the Cabinet, their deputies and assistants may do so only whenexpressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to laydown the general rule applicable to all elective and appointive public officials and employees, whileSection 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

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1987 Constitution. To construe said qualifying phrase as respondents would have us do, would rendernugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose astricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistantswith 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 ArticleIX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when thehigh-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand,and the generality of civil servants from the rank immediately below Assistant Secretary downwards, onthe 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 theConstitution inoperative. This observation applies particularly to the Vice-President who, under Section13 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 "forappointment or designation in any capacity to any public office or position during his tenure." Surely, tosay that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII hasreference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of theConstitution authorizing the Vice-President to become a member of the Cabinet, 15 and to act as Presidentwithout relinquishing the Vice-Presidency where the President shall not nave been chosen or fails toqualify. 16 Such absurd consequence can be avoided only by interpreting the two provisions underconsideration 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 construedvis-a-vis Section 13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to beseparated from all the others, to be considered alone, but that all the provisions bearing upon a particularsubject are to be brought into view and to be so interpreted as to effectuate the great purposes of theinstrument.17 Sections bearing on a particular subject should be considered and interpreted together as toeffectuate the whole purpose of the Constitution18 and one section is not to be allowed to defeat another,if by any reasonable construction, the two can be made to stand together.19

In other words, the court must harmonize them, if practicable, and must lean in favor of a constructionwhich 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 thePresident, Vice-President, members of the Cabinet, their deputies and assistants with respect to holdingmultiple offices or employment in the government during their tenure, the exception to this prohibitionmust be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so thatit must be understood as intended to be a positive and unequivocal negation of the privilege of holdingmultiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation.21 The phrase"unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as amember 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 beingex-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 ofthe Constitution must not, however, be construed as applying to posts occupied by the Executive officialsspecified therein without additional compensation in anex-officio capacity as provided by law and as

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Examples of designations to positions by virtue of one's primary functions are the Secretaries of Financeand Budget sitting as members of the Monetary Board, and the Secretary of Transportation andCommunications acting as Chairman of the Maritime Industry Authority34 and the Civil AeronauticsBoard.

If the functions required to be performed are merely incidental, remotely related, inconsistent,incompatible, or otherwise alien to the primary function of a cabinet official, such additional functionswould fall under the purview of "any other office" prohibited by the Constitution. An example would bethe Press Undersecretary sitting as a member of the Board of the Philippine Amusement and GamingCorporation. The same rule applies to such positions which confer on the cabinet official managementfunctions and/or monetary compensation, such as but not limited to chairmanships or directorships ingovernment-owned or controlled corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, theirdeputies or assistants which are not inconsistent with those already prescribed by their offices orappointments by virtue of their special knowledge, expertise and skill in their respective executive officesis 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 thedischarge of its multifarious tasks of executing and implementing laws affecting national interest andgeneral welfare and delivering basic services to the people. It is consistent with the power vested on thePresident 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 dutiesand 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 asrequired by their primary functions, they would be supervision, thereby deprived of the means for controland 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 orfunctions must berequired by the primary functions of the official concerned, who is to perform the samein 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 followsthat 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 attachedto his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of theMonetary Board as anex-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 comeunder the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect anyextra compensation, whether it be in the form of a per them or an honorarium or an allowance, or someother such euphemism. By whatever name it is designated, such additional compensation is prohibited bythe Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner ChristianMonsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the GeneralProvisions, the exception "unless required by the functions of his position,"36 express reference to certainhigh-ranking appointive public officials like members of the Cabinet were made.37 Responding to a queryof Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when althoughnot required by current law, membership of certain high-ranking executive officials inother offices and

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corporations is necessary by reason of said officials' primary functions. The example given byCommissioner Monsod was the Minister of Trade and Industry.38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying thatadditional functions and duties flowing from the primary functions of the official may be imposed uponhim without offending the constitutional prohibition under consideration, it cannot, however, be taken asauthority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986. Underconsideration then was Section 3 of Committee Resolution No. 531 which was the proposed article onGeneral Provisions.39 At that time, the article on the Civil Service Commission had been approved onthird reading on July 22, 1986,40 while the article on the Executive Department, containing the morespecific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986.41 It was only after the draft Constitution had undergone reformatting and "styling" by the Committee onStyle that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B andreworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutionalguidelines in the absence of specific constitutional provisions on the matter. What was primarily at issueand approved on that occasion was the adoption of the qualified and delimited phrase "primary functions"as the basis of an exception to the general rule covering all appointive public officials. Had theConstitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, itcould have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 ofthe proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil ServiceCommission.

That this exception would in the final analysis apply also to the President and his official family is byreason of the legal principles governing additional functions and duties of public officials rather than byvirtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additionalfunctions and duties "required," as opposed to "allowed," by the primary functions may be considered asnot constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutionalconvention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may behad only when other guides fail42 as said proceedings are powerless to vary the terms of the Constitutionwhen the meaning is clear. Debates in the constitutional convention "are of value as showing the views ofthe individual members, and as indicating the reasons for their votes, but they give us no light as to theviews of the large majority who did not talk, much less of the mass of our fellow citizens whose votes atthe polls gave that instrument the force of fundamental law. We think it safer to construe the constitutionfrom what appears upon its face."43 The proper interpretation therefore depends more on how it wasunderstood by the people adopting it than in the framers's understanding thereof.44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibitthe President, Vice-President, members of the Cabinet, their deputies or assistants from holding duringtheir tenure multiple offices or employment in the government, except in those cases specified in theConstitution itself and as above clarified with respect to posts held without additional compensation in anex-officio capacity as provided by law and as required by the primary functions of their office, the citationof Cabinet members (then called Ministers) as examples during the debate and deliberation on the generalrule laid down for all appointive officials should be considered as mere personal opinions which cannotoverride the constitution's manifest intent and the people' understanding thereof.

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In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), ArticleIX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional.Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistantsecretaries may hold in addition to their primary position to not more than two (2) positions in thegovernment and government corporations, Executive Order No. 284 actually allows them to hold multipleoffices or employment in direct contravention of the express mandate of Section 13, Article VII of the1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitutionitself.

The Court is alerted by respondents to the impractical consequences that will result from a strictapplication of the prohibition mandated under Section 13, Article VII on the operations of theGovernment, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in thisdecision,ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of"any other office" within the contemplation of the constitutional prohibition. With respect to other officesor employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impracticalconsequences are more apparent than real. Being head of an executive department is no mean job. It ismore than a full-time job, requiring full attention, specialized knowledge, skills and expertise. Ifmaximum benefits are to be derived from a department head's ability and expertise, he should be allowedto attend to his duties and responsibilities without the distraction of other governmental offices oremployment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of ournational and economic development, far outweigh the benefits, if any, that may be gained from adepartment head spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondentsSecretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzonand Secretary of the Budget Guillermo Carague to immediately relinquish their other offices oremployment, as herein defined, in the government, including government-owned or controlledcorporations and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of.

During their tenure in the questioned positions, respondents may be consideredde facto officers and assuch entitled to emoluments for actual services rendered.46 It has been held that "in cases where there isno de jure, officer, ade facto officer, who, in good faith has had possession of the office and hasdischarged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in anappropriate action recover the salary, fees and other compensations attached to the office. This doctrine is,undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by theservices of an officerde facto and then be freed from all liability to pay any one for such services.47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual servicesrendered in the questioned positions may therefore be retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.

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Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and Davide, Jr., JJ., concur.

Sarmiento and Grio-Aquino, JJ., took no part.

G.R. No. 184740 February 11, 2010

DENNIS A. B. FUNA, Petitioner,vs.EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC. LEANDRO R.MENDOZA, in his official capacity as Secretary of the Department of Transportation andCommunications, USEC. MARIA ELENA H. BAUTISTA, in her official capacities asUndersecretary of the Department of Transportation and Communications and as Officer-in-Charge of the Maritime Industry Authority (MARINA), Respondents.

D E C I S I O N

VILLARAMA, JR., J.: This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of atemporary restraining order and/or writ of preliminary injunction, to declare as unconstitutional thedesignation of respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of theMaritime Industry Authority (MARINA).

The Antecedents

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista(Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC), viceAgustin R. Bengzon. Bautista was designated as Undersecretary for Maritime Transport of the department

under Special Order No. 2006-171 dated October 23, 2006.1

On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr.,Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, inconcurrent capacity as DOTC Undersecretary.2

On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filedthe instant petition challenging the constitutionality of Bautistas appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and theirdeputies and assistants to hold any other office or employment.

On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of theMARINA vice Vicente T. Suazo, Jr .3 and she assumed her duties and responsibilities as such on February2, 2009.4

The Case

Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary and MARINA OIC is inviolation of Section 13, Article VII of the 1987 Constitution, as interpreted and explained by this Court inCivil Liberties

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Union v. Executive Secretary,5 and reiterated in Public Interest Center, Inc. v. Elma.6 He points out thatwhile it was clarified in Civil Liberties Union that the prohibition does not apply to those positions held inex-officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTCUndersecretary, as can be gleaned from the provisions of its charter, Presidential Decree (P.D.) No. 474,7 as amended by Executive Order (EO) No. 125-A.8 Moreover, the provisions on the DOTC in theAdministrative Code of 1987, specifically Sections 23 and 24, Chapter 6, Title XV, Book IV do not provide any ex-officio role for the undersecretaries in any of the departments attached agencies. The factthat Bautista was extended an appointment naming her as OIC of MARINA shows that she does notoccupy it in an ex-officio capacity since an ex-officio position does not require any "further warrant orappoint."9

Petitioner further contends that even if Bautistas appointment o r designation as OIC of MARINA wasintended to be merely temporary, still, such designation must not violate a standing constitutional prohibition, citing the rationale in Achacoso v. Macaraig.10 Section 13, Article VII of the 1987Constitution does not enumerate temporariness as one (1) of the exceptions thereto. And since atemporary designation does not have a maximum duration, it can go on for months or years. In effect, thetemporary appointment/designation can effectively circumvent the prohibition. Allowing undersecretariesor assistant secretaries to occupy other government posts would open a Pandoras Box as to let them feast

on choice government positions. Thus, in case of vacancy where no permanent appointment could as yet be made, the remedy would be to designate one (1) of the two (2) Deputy Administrators as the ActingAdministrator. Such would be the logical course, the said officers being in a better position in terms ofknowledge and experience to run the agency in a temporary capacity. Should none of them merit thePresidents confidence, then the practical remedy would be for Undersecretary Bautista to first resign asUndersecretary in order to qualify her as Administrator of MARINA. As to whether she in fact does notreceive or has waived any remuneration, the same does not matter because remuneration is not an elementin determining whether there has been a violation of Section 13, Article VII of the 1987 Constitution.11

Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINAAdministrator. The reason is that with respect to the affairs in the maritime industry, therecommendations of the MARINA may be the subject of counter or opposing recommendations from theUndersecretary for Maritime Transport. In this case, the DOTC Undersecretary for Maritime Transportand the OIC of MARINA have become one (1) and the same person. There is no more checking andcounter-checking of powers and functions, and therein lies the danger to the maritime industry. There isno longer a person above the Administrator of MARINA who will be reviewing the acts of said agency because the person who should be overseeing MARINA, the Undersecretary for Maritime Transport, haseffectively been compromised.12

Finally, petitioner contends that there is a strong possibility in this case that the challenge herein can berendered moot through the expediency of simply revoking the temporary appointment/designation. Butsince a similar violation can be committed in the future, there exists a possibility of "evading review," andhence supervening events should not prevent the Court from deciding cases involving grave violation ofthe 1987 Constitution, as this Court ruled in Public Interest Center. Notwithstanding its mootnesstherefore, should it occur, there is a compelling reason for this case to be decided: the issue raised being"capable of repetition, yet evading review."13

On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in thiscase. In fact, there no longer exists an actual controversy that needs to be resolved in view of theappointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and therelinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present

petition moot and academic. Petitioners prayer for a temporary restraining order or writ of preliminary

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