Arimao Taher Onwards

7/28/2019 Arimao Taher Onwards

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G.R. No. 152651 August 7, 2006

ANDABAI T. ARIMAO, Petitioner,vs.

SAADEA P. TAHER, Respondent.

D E C I S I O N

TINGA,J.:

Before us is a petition for review of the Decision and Order

dated 16 October 2001 and 31 January 2002, respectively,of Branch 14 of the Regional Trial Court, 12th Judicial

Region, Cotabato City, in SPL. Civil Case No. 660, entitled

"Saadea P. Taher v. Gov. Nur Misuari, in his capacity as

ARMM Regional Governor, Andabai T. Arimao and

Bajunaid Kamaludin, Acting Director of TESDA-ARMM,"

which enjoined respondents therein, including petitioner

Andabai T. Arimao, from carrying out the effects of the

Memorandum dated 04 August 2000 issued by then

Autonomous Region in Muslim Mindanao (ARMM)

Governor Nur P. Misuari.

The facts of the case, as culled from the records, follow:

On 22 March 1995, petitioner was appointed as Director II,

Bureau of Non-formal Education, Department of

Education, Culture and Sports (DECS-ARMM). Thereafter,

on 17 July 1995, respondent was appointed Education

Supervisor II. Petitioners appointment, however, was

protested by a certain Alibai T. Benito, who claimed that

said appointment did not pass through any evaluation by

the personnel selection board. 1 Petitioners appointment

was eventually disapproved by the Civil Service

Commission-Field Office (CSC-FO), Cotabato City, for

failure to meet the experience required for the position. On

02 May 1996, the CSC, through Resolution No. 96- 3101,

affirmed the findings of the CSC-FO and ordered petitioner

to be reverted to her former position of Education

Supervisor II. 2 Petitioner sought reconsideration of the

decision.

In the interim, petitioner applied for and was granted by

the DECS-ARMM an academic scholarship with pay

effective 30 October 1996 in her capacity as Education

Supervisor II. The scholarship was limited to a period of

one year.3

Meanwhile, petitioners motion for reconsideration of CSC

Resolution No. 96-3101 was denied. 4 Subsequently, she

filed a petition for review of the two CSC Resolutions

before the Court of Appeals 5which, however, denied due

course to the petition on 10 June 1998. 6 On 17 October

1998, the Court of Appeals issued an Entry of Judgment

declaring the denial of the petition to be final and

executory.7

In the meantime, the position of Education Supervisor II

being occupied by respondent was devolved from

DECS-ARMM to the Technical Education and Skills

Development Authority (TESDA)- ARMM.

On 2 December 1998, petitioner informed the CSC

Regional Office in Cotabato City that she was already

allowed by the Director of TESDA-ARMM to report for

duty, only that she and respondent are reporting to the

same position. 8 On 10 December 1998, the CSC Regiona

Director enjoined respondent from reporting to the

TESDA-ARMM. 9 It appears, however, that respondent

continued to report as Education Supervisor II.

On 7 December 1998, respondent, unaware that petitioner

was granted a study leave from October 1996 to October

1997, filed a complaint before the Regional Director

ARMM, relative to petitioners continued absence. On 24

December 1998, upon the complaint filed by respondent

the Executive Secretary of ARMM, by authority of theARMM Regional Governor and per his Memorandum o

even date, declared petitioner to have been Absent

Without Leave (AWOL) by reason of her failure to report

to her office for at least a year after the expiration of her

study leave and directed that she be dropped from the

payroll. 10 Petitioner appealed the said Memorandum to

the Office of the ARMM Regional Governor. In Resolution

No. 001-99 dated 17 March 1999, the said office denied the

appeal, finding that from 30 October 1996 up to the

opening of school year 1997-1998, first semester

petitioner failed to report to office despite the fact that she

was not able to enroll immediately upon the approval of

her study leave. 11Further, petitioners act of enrolling inthe second semester of school year 1997-1998 in the

absence of an approved extension of her study leave is a

clear violation of the implementing guidelines of Republic

Act No. 4670, or the Magna Carta for Public Schoo

Teachers. The dispositive portion of the Resolution reads:

WHEREFORE, [p]remises considered, the instant letter o

Mrs. Arimao to reconsider the action of the Executive

Secretary in dropping her from the roll is hereby DENIED

and is accordingly DISMISSED for lack of merit. Thus, the

Memorandum Ordered [sic] of the Executive Secretary on

Authority of the Regional Governor dated December 24

1998 is hereby affirmed and remained [sic] undisturbed

Nonetheless, since the act of dropping one from the roll is

non[-]disciplinary action on the ground of being guilty of

the charge of Absence Without Approved Leave (AWOL)

the respondent may be appointed to other position[s] in

the Government service at the discretion of the appointing

authority.

SO ORDERED.12

On 20 July 2000, Datu Guimid P. Matalam, Regional Vice

Governor/Acting Regional Governor, ordered petitioner to

reassume her former position as Education Supervisor II

and revoked the ARMM Executive Secretarys Resolution

dated 24 December 1998. 13However, on 1 August 2000

the same Acting Regional Governor issued the followingorder:

In the interest of the service and considering the need to

observe fairness and justice in dealing with our personnel

you are hereby directed to implement the above

mentioned resolution rendered by the Regional Solicitor

General on March 17, 1999.

As such, you are likewise directed to maintain STATUS

QUO on the part of Ms. SAADEA P. TAHER, Education

Supervisor II with permanent status duly approved by the

Civil Service Commission.
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TO : TESDA ARMM

Cotabato City

SUBJECT : Implementation of CSC Resolution No. 96-3101,

and CSC-ARMM Directive Order Dated July 26, 2000

DATE : August 4, 2000

In the highest interest of public service and consistent with

the legal and constitutional precept of promoting social

justice, the above-captioned resolutions are hereby

implemented.

As such, you are hereby directed to re-instate ANDABAI T.

ARIMAO to her former position as Education Supervisor II

pursuant to the foregoing resolution and the provisions of

Sec. 13, Rule VI, Book V of E.O. No, 292 which are further

buttressed by the series of communication of CSC Regional

Office No. XII dated September 10, 1998, October 20, 1998,

November 03, 1998 and December 10, 1998 and directive

order of CSC-ARMM dated July 26, 2000 respectively.

This [M]emorandum shall take effect immediately and

shall take precedence over all memoranda, orders and

other issuances [sic] inconsistent herewith.

(Signed)

PROF. NUR P. MISUARI

Regional Governor32

Even a cursory look at the Memorandum shows that the

order of petitioners reinstatement was made in reliance

on, or in implementation of, CSC Resolution No. 96-3101

and CSC-ARMM Directive Order dated 26 July 2000, both

of which ordained her reinstatement. However, these

directives relied upon by ARMM Regional Governor

Misuari were rendered functus officio by no less than the

CSC itself per its Resolution No. 020743, which, as

previously noted, ruled that the TESDA-ARMM is not underlegal obligation to reinstate petitioner because she was

already dropped from the rolls effective 24 December

1998. CSC Resolution No. 01-0132, ordering the

implementation of CSC Resolution No. 96-3101, was issued

because petitioner purposely concealed and withheld from

the CSC the information that she had been declared AWOL

and dropped from the rolls.33With Resolution No. 020743,

CSC Resolution No. 01-0132 was effectively revoked.

Likewise, with the finality of the AWOL order and her

having been dropped from the rolls, petitioner legally lost

her right to the position of Education Supervisor II. In any

case, she has already received from the DECS-ARMM her

salaries as Education Supervisor II for the period October1996 to 1997, or the period corresponding to the time the

position was still with the said department.34

Petitioner argues that the 24 December 1998

Memorandum finding her to be on AWOL was revoked and

rendered moot by subsequent issuances. We are not

persuaded. While it is true that then Acting Regional

Governor Matalam revoked the 24 December 1998 order

of the ARMM Executive Secretary, he recalled the

revocation via his Memorandum dated 01 August 2006.

Thus, the AWOL order dated 24 December 1998 was in full

force and effect when ARMM Regional Governor Misuari

issued the assailed 04 August 2000 Memorandum.

Propriety of the Petition for Prohibition

The trial court did not err in taking cognizance of the

petition for prohibition.

The principal purpose for the writ of prohibition is to

prevent an encroachment, excess, usurpation or

assumption of jurisdiction on the part of an inferior court

or quasi-judicial tribunal. It is granted when it is necessary

for the orderly administration of justice, or to prevent theuse of the strong arm of the law in an oppressive or

vindictive manner, or to put a stop to multiplicity of

actions. Thus, for a party to be entitled to a writ o

prohibition, he must establish the following requisites: (a)

it must be directed against a tribunal, corporation, board

or person exercising functions, judicial or ministerial; (b)

the tribunal, corporation, board or person has acted

without or in excess of its jurisdiction, or with grave abuse

of discretion; and (c) there is no appeal or any other plain,

speedy, and adequate remedy in the ordinary course of

law.35

Under Republic Act No. 6734, 36 executive power in the

ARMM is vested in the Regional Governor, who has controof all the regional executive commissions, boards, bureaus

and offices, and exercises general supervision over the

local government units within the Autonomous Region. 3

The assailed Memorandum of ARMM Regional Governor

Misuari was presumably issued in the exercise of his

power of control and supervision. However, by ordering

the reinstatement of petitioner to her former position

based upon an outdated CSC Resolution, despite the AWOL

order and her being dropped from the rolls, ARMM

Regional Governor Misuari acted with grave abuse of

discretion, amounting to excess of jurisdiction.

Neither is the petition for prohibition before the trial courtviolative of the doctrine of primary jurisdiction. Said

doctrine precludes a court from arrogating unto itself the

authority to resolve a controversy the jurisdiction over

which is initially lodged with an administrative body o

special competence. 38 An exception to this rule is when

the issue raised is a purely legal question, well within the

competence and the jurisdiction of the court and not the

administrative

agency.39In the instant case, the legal question of whether

a memorandum of the ARMM Governor, ordering the

reinstatement of an employee declared AWOL and

dropped from the rolls, was issued in excess of jurisdiction

is a legal question which should be resolved by the courtsFor the same reason that the issues to be resolved in this

case are purely legal in nature, respondent need not abide

by the doctrine of exhaustion of administrative remedies40Besides, to allow the matter to remain with the Office o

the ARMM Governor for resolution would be self-defeating

and useless and cause unnecessary delay since it was the

same office which gave the conflicting issuances on

petitioners reinstatement.

Neither petitioner nor respondent

is entitled to the position of Education
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Supervisor II

The finality of the disapproval of petitioners promotion, as

well as that of the Order declaring petitioner on AWOL and

dropping her from the rolls, is no longer disputed. Thus, as

found by the CSC in its Resolution No. 020743, TESDA has

no legal obligation to reinstate petitioner to the position of

Education Supervisor II. This, however, should not be

construed as a declaration that respondent is entitled to

the position of Education Supervisor II.

Section 13, Rule 6 of the Omnibus Rules Implementing

Book V, E.O. 292, provides:

All appointments involved in a chain of promotions must

be submitted simultaneously for approval by the

Commission. The disapproval of the appointment of a

person proposed to a higher position invalidates the

promotion of those in lower positions and automatically

restores them to their former positions. However, the

affected persons are entitled to the payment of salaries for

services actually rendered at a rate fixed in their

promotional appointments.

Section 19 of the same rule states:

SEC. 19. An appointment though contested shall take effect

immediately upon its issuance if the appointee assumes

the duties of the position and the appointee is entitled to

receive the salary attached to the position. However, the

appointment, together with the decision of the department

head shall be submitted to the Commission for appropriate

action within 30 days from the date of its issuance

otherwise the appointment becomes ineffective thereafter.

Likewise, such an appointment shall become ineffective in

case the protest is finally resolved against the protestee, in

which case he shall be reverted to his former position.

It must be noted that while respondents appointment to

the position of Education Supervisor II was approved aspermanent and completed, it was nonetheless made

subject to the outcome of the protest filed against

petitioners appointment. 41 At the back of the

appointment, the following appears:

This appointment is subject to the outcome of the protest

of Alibai Benito in the appointment of Andabai Arimao

former incumbent to the position.42

As a chain reaction of the disapproval of petitioners

promotional appointment as Director II, respondents

appointment to Education Supervisor II was likewise

invalidated. The efficacy of respondents appointment was

dependent on the validity of petitioners promotionalappointment which in turn was subject to the outcome of

the protest against it.

Thus, as of 17 October 1998or the date of finality of the

denial of the petition questioning the disapproval of

petitioners appointment as Director IIboth petitioner

and respondent were reverted to their former positions.

Petitioner should have been allowed to re-assume her

position of Education Supervisor II as of the said date, and

thereafter remain in the said office until she was dropped

from the rolls in 1999. Respondent, in turn, should have

been made to return to her former position.

Indeed, for all intents and purposes, respondent became

the Education Supervisor II by virtue of her appointment

as such on 25 July 1995. However, her tenure ended when

petitioner was reverted to the same position on 17

October 1998. Thus, during respondents occupancy of the

position of Education Supervisor II after petitioners

promotional appointment had been disapproved

respondent should be deemed a de facto officer only. 43A

de facto officer is"one who has the reputation of being the

officer he assumes and yet is not a good officer in point oflaw." He is one who is in possession of the office and

discharging its duties under color of authority, and by

color of authority is meant that derived from an election or

appointment, however irregular or informal, so that the

incumbent is not a mere volunteer. 44 The difference

between the basis of the authority of a de jure officer and

that of a de facto officer is that one rests on right, the other

on reputation.45

In Monroy v. Court of Appeals, et al.,46this Court ruled tha

a rightful incumbent of a public office may recover from a

de facto officer the salary received by the latter during the

time of his wrongful tenure. A de facto officer, not having a

good title, takes the salaries at his risk and must, thereforeaccount to the de jure officer for whatever salary he

received during the period of his wrongful tenure.47In the

instant case, respondent should account to petitioner for

the salaries she received from the time the disapproval o

petitioners promotion became final, up to the time when

petitioner was declared on AWOL and dropped from the

rolls. However, respondent may be allowed to keep the

emoluments she received during said period, there being

no de jure officer at the time,48following our ruling in Civi

Liberties Union v. Executive Secretary, 49to wit:

[I]n cases where there is no de jure officer, a de facto

officer who, in good faith, has had possession of the office

and has discharged the duties pertaining thereto, is legally

entitled to the emoluments of the office, and may in an

appropriate action recover the salary, fees and other

compensations attached to the office.50

There is no question that respondent discharged the duties

of Education Supervisor II from the time she was

appointed to the position and even after her appointment

was invalidated as a result of the invalidation of

petitioners promotional appointment. In view of the

services respondent rendered to the TESDA and the people

of the ARMM, it would be iniquitous to deny her the salary

appertaining to the position corresponding to the period of

her service.All the same, however, respondent cannot continue her

unauthorized occupancy, notwithstanding the fact that the

position of Education Supervisor II has been vacant since

1999. Absent any showing that she has been reappointed

to the position after petitioner was declared AWOL and

dropped from the rolls, respondent cannot lay a valid

claim thereto.

WHEREFORE, the petition is DENIED and the Decision and

Order dated 16 October 2001 and 31 January 2002

respectively, of the RTC, 12th Judicial Region, Branch 14

are AFFIRMED.
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5/37

Respondent is ordered to VACATE the position of

Education Supervisor II, TESDA-ARMM, and turn over to

petitioner the emoluments she received for the position

from 17 October 1998 to 17 March 1999.

Costs against petitioner.

SO ORDERED.


6/37

G.R. No. 90762 May 20, 1991

LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON,petitioner,

vs.

LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA inhis capacity as Chief Executive of the Province of Leyteand Head of SANGGUNIANG PANLALAWIGAN and LeyteProvincial Treasurer FLORENCIO LUNA, respondents.

Zozimo G. Alegre for petitioner.

The Provincial Attorney for respondents.

R E S O L U T I O N

GUTIERREZ, JR.,J.:p

This is a motion for reconsideration of the resolution of the

Court dated August 28, 1990 which initially denied the

petition for certiorari and mandamus filed by then Acting

Vice-Governor of Leyte, Aurelio D. Menzon. In the August

28 resolution, the Court stated that Mr. Menzon cannot

successfully assert the right to be recognized as Acting

Vice-Governor and, therefore, his designation was invalid.

In this motion, the primary issue is the right to

emoluments while actually discharging the duties of theoffice.

The facts of the case are as follows: On February 16, 1988,

by virtue of the fact that no Governor had been proclaimed

in the province of Leyte, the Secretary of Local

Government Luis Santos designated the Vice-Governor,

Leopoldo E. Petilla as Acting Governor of Leyte.

On March 25, 1988 the petitioner Aurelio D. Menzon, a

senior member of the Sangguniang Panlalawigan was also

designated by Secretary Luis Santos to act as the

Vice-Governor for the province of Leyte.

The petitioner took his oath of office before Senator

Alberto Romulo on March 29, 1988.

On May 29, 1989, the Provincial Administrator, Tente U.

Quintero inquired from the Undersecretary of the

Department of Local Government, Jacinto T. Rubillar, Jr., as

to the legality of the appointment of the petitioner to act as

the Vice-Governor of Leyte.

In his reply letter dated June 22, 1989, Undersecretary

Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no

provision relating to succession in the Office of the

Vice-Governor in case of a temporary vacancy, the

appointment of the petitioner as the temporary Vice-

Governor is not necessary since the Vice-Governor who is

temporarily performing the functions of the Governor,could concurrently assume the functions of both offices.

As a result of the foregoing communications between

Tente U. Quintero and Jacinto T. Rubillar, Jr., the

Sangguniang Panlalawigan, in a special session held on July

7, 1989, issued Resolution No. 505 where it held invalid

the appointment of the petitioner as acting Vice-Governor

of Leyte. The pertinent portion of the resolution reads:

WHEREAS, the circumstances obtaining at present

in the Office of the Vice-Governor is that there is

no permanent (sic) nor a vacancy in said office.

The Honorable Leopoldo E. Petilla assumed the

Office of the Vice-Governor after he took his oath

of office to said position.

WHEREAS, it is the duty of the members of the

Board not only to take cognizance of the aforesaid

official communication of the Undersecretary

Jacinto T. Rubillar, Jr., but also to uphold the law.

WHEREAS, on motion of the Honorable Macario R

Esmas, Jr., duly seconded by the Honorable

Rogelio L. Granados and the Honorable Renato M

Rances.

RESOLVED, as it is hereby resolved not to

recognize Honorable Aurelio D. Menzon as Acting

Vice-Governor of Leyte. (Rollo, p. 27)

The petitioner, on July 10, 1989, through the acting LDP

Regional Counsel, Atty. Zosimo Alegre, sought clarification

from Undersecretary Jacinto T. Rubillar, Jr. regarding the

June 22, 1989 opinion.

On July 12, 1989, Undersecretary Jacinto T. Rubillar

replied and explained his opinion. The pertinent portion of

the letter reads:This has reference to your letter dated July 10

1989, requesting for clarification of our letter to

Provincial Administrator Tente U. Quintero dated

June 22, 1989, which states in substance, that

"there is no succession provided for in case of

temporary vacancy in the office of the

vice-governor and that the designation of a

temporary vice-governor is not necessary.

We hold the view that the designation extended by

the Secretary of Local Government in favor of one

of the Sangguniang Panlalawigan Members o

Leyte to temporarily discharge the powers and

duties of the vice-governor during the pendency o

the electoral controversy in the Office of the

Governor, does not contradict the stand we have

on the matter. The fact that the Sangguniang

Panlalawigan member was temporarily

designated to perform the functions of the

vice-governor could not be considered that the

Sangguniang member succeeds to the office of the

latter, for it is basic that designation is merely an

imposition of additional duties to be performed by

the designee in addition to the official functions

attached to his office. Furthermore, the necessity

of designating an official to temporarily perform

the functions of a particular public office, would

depend on the discretion of the appointing

authority and the prevailing circumstances in a

given area and by taking into consideration the

best interest of public service.

On the basis of the foregoing and considering that

the law is silent in case of temporary vacancy, in

the Office of the Vice-Governor, it is our view that

the peculiar situation in the Province of Leyte

where the electoral controversy in the Office of

the Governor has not yet been settled, calls for the

designation of the Sangguniang Member to act as


7/37

vice-governor temporarily. (Rollo, p. 31)

In view, of the clarificatory letter of Undersecretary

Rubillar, the Regional Director of the Department of Local

Government, Region 8, Resurreccion Salvatierra, on July

17, 1989, wrote a letter addressed to the Acting-Governor

of Leyte, Leopoldo E. Petilla, requesting the latter that

Resolution No. 505 of the Sangguniang Panlalawigan be

modified accordingly. The letter states:

In view thereof, please correct previous actions

made by your office and those of the Sangguniang

Panlalawigan which may have tended to discredit

the validity of Atty. Aurelio Menzon's designation

as acting vice-governor, including the payment of

his salary as Acting Vice-Governor, if he was

deprived of such. (Rollo, p. 32)

On August 3, 1989, the Regional Director wrote another

letter to Acting-Governor Petilla, reiterating his earlier

request.

Despite these several letters of request, the Acting

Governor and the Sangguniang Panlalawigan, refused to

correct Resolution No. 505 and correspondingly to pay the

petitioner the emoluments attached to the Office ofVice-Governor.

Thus, on November 12, 1989, the petitioner filed before

this Court a petition for certiorari and mandamus. The

petition sought the nullification of Resolution No. 505 and

for the payment of his salary for his services as the acting

Vice-Governor of Leyte.

In the meantime, however, the issue on the governorship

of Leyte was settled and Adelina Larrazabal was

proclaimed the Governor of the province of Leyte.

During the pendency of the petition, more particularly on

May 16, 1990, the provincial treasurer of Leyte, Florencio

Luna allowed the payment to the petitioner of his salary as

acting Vice-Governor of Leyte in the amount of P17,710.00,

for the actual services rendered by the petitioner as acting

Vice-Governor.

On August 28, 1990, this Court dismissed the petition filed

by Aurelio D. Menzon.

On September 6, 1990, respondent Leopoldo Petilla, by

virtue of the above resolution requested Governor

Larrazabal to direct the petitioner to pay back to the

province of Leyte all the emoluments and compensation

which he received while acting as the Vice-Governor of

Leyte.

On September 21, 1990, the petitioner filed a motion for

reconsideration of our resolution. The motion prayed that

this Court uphold the petitioner's right to receive the

salary and emoluments attached to the office of the

Vice-Governor while he was acting as such.

The petitioner interposes the following reason for the

allowance of the motion for reconsideration:

THAT THE PETITIONER IS ENTITLED TO THE

EMOLUMENTS FOR HIS SERVICES RENDERED AS

DESIGNATED ACTING VICE-GOVERNOR UNDER

THE PRINCIPLES OF GOOD FAITH. SIMPLE

JUSTICE AND EQUITY.

The controversy basically revolves around two issues: 1)

Whether or not there was a vacancy?; and 2) Whether or

not the Secretary of Local Government has the authority to

make temporary appointments?

The respondents argue that there exists no vacancy in the

Office of the Vice-Governor which requires the

appointment of the petitioner. They further allege that if

indeed there was a need to appoint an acting

Vice-Governor, the power to appoint is net vested in the

Secretary of Local Government. Absent any provision in

the Local Government Code on the mode of succession in

case of a temporary vacancy in the Office of the

Vice-Governor, they claim that this constitutes an interna

problem of the Sangguniang Panlalawigan and was thus

for it solely to resolve.

The arguments are of doubtful validity.

The law on Public Officers is clear on the matter. There is

no vacancy whenever the office is occupied by a legally

qualified incumbent. A sensu contrario, there is a vacancy

when there is no person lawfully authorized to assume and

exercise at present the duties of the office. (see Stocking vState, 7 Ind. 326, cited in Mechem. A Treatise on the Law

on Public Offices and Officers, at p. 61)

Applying the definition of vacancy to this case, it can be

readily seen that the office of the Vice-Governor was left

vacant when the duly elected Vice-Governor Leopoldo

Petilla was appointed Acting Governor. In the eyes of the

law, the office to which he was elected was left barren of a

legally qualified person to exercise the duties of the office

of the Vice-Governor.

There is no satisfactory showing that Leopoldo Petilla

notwithstanding his succession to the Office of the

Governor, continued to simultaneously exercise the dutiesof the Vice-Governor. The nature of the duties of a

Provincial Governor call for a full-time occupant to

discharge them. More so when the vacancy is for an

extended period. Precisely, it was Petilla's automatic

assumption to the acting Governorship that resulted in the

vacancy in the office of the Vice-Governor. The fact that the

Secretary of Local Government was prompted to appoint

the petitioner shows the need to fill up the position during

the period it was vacant. The Department Secretary had

the discretion to ascertain whether or not the Provincial

Governor should devote all his time to that particular

office. Moreover, it is doubtful if the Provincial Board

unilaterally acting, may revoke an appointment made by ahigher authority.

Disposing the issue of vacancy, we come to the second

issue of whether or not the Secretary of Local Government

had the authority to designate the petitioner.

We hold in the affirmative.

The Local Government Code is silent on the mode of

succession in the event of a temporary vacancy in the

Office of the Vice-Governor. However, the silence of the

law must not be understood to convey that a remedy in

law is wanting.


8/37

The circumstances of the case reveal that there is indeed a

necessity for the appointment of an acting Vice-Governor.

For about two years after the governatorial elections, there

had been no de jure permanent Governor for the province

of Leyte, Governor Adelina Larrazabal, at that time, had not

yet been proclaimed due to a pending election case before

the Commission on Elections.

The two-year interregnum which would result from the

respondents' view of the law is disfavored as it would

cause disruptions and delays in the delivery of basicservices to the people and in the proper management of

the affairs of the local government of Leyte. Definitely, it is

incomprehensible that to leave the situation without

affording any remedy was ever intended by the Local

Government Code.

Under the circumstances of this case and considering the

silence of the Local Government Code, the Court rules that,

in order to obviate the dilemma resulting from an

interregnum created by the vacancy, the President, acting

through her alter ego, the Secretary of Local Government,

may remedy the situation. We declare valid the temporary

appointment extended to the petitioner to act as the

Vice-Governor. The exigencies of public service demanded

nothing less than the immediate appointment of an acting

Vice-Governor.

The records show that it was primarily for this

contingency that Undersecretary Jacinto Rubillar corrected

and reconsidered his previous position and acknowledged

the need for an acting Vice-Governor.

It may be noted that under Commonwealth Act No. 588

and the Revised Administrative Code of 1987, the

President is empowered to make temporary appointments

in certain public offices, in case of any vacancy that may

occur. Albeit both laws deal only with the filling of

vacancies in appointive positions. However, in the absenceof any contrary provision in the Local Government Code

and in the best interest of public service, we see no cogent

reason why the procedure thus outlined by the two laws

may not be similarly applied in the present case. The

respondents contend that the provincial board is the

correct appointing power. This argument has no merit. As

between the President who has supervision over local

governments as provided by law and the members of the

board who are junior to the vice-governor, we have no

problem ruling in favor of the President, until the law

provides otherwise.

A vacancy creates an anomalous situation and finds noapprobation under the law for it deprives the constituents

of their right of representation and governance in their

own local government.

In a republican form of government, the majority rules

through their chosen few, and if one of them is

incapacitated or absent, etc., the management of

governmental affairs to that extent, may be hampered.

Necessarily, there will be a consequent delay in the

delivery of basic services to the people of Leyte if the

Governor or the Vice-Governor is missing.

Whether or not the absence of a Vice-Governor would

main or prejudice the province of Leyte, is for higher

officials to decide or, in proper cases, for the judiciary to

adjudicate. As shown in this case where for about two

years there was only an acting Governor steering the

leadership of the province of Leyte, the urgency of filling

the vacancy in the Office of the Vice-Governor to free the

hands of the acting Governor to handle provincia

problems and to serve as the buffer in case something

might happen to the acting Governor becomes

unquestionable. We do not have to dwell ourselves into thefact that nothing happened to acting Governor Petilla

during the two-year period. The contingency of having

simultaneous vacancies in both offices cannot just be set

aside. It was best for Leyte to have a full-time Governor

and an acting Vice-Governor. Service to the public is the

primary concern of those in the government. It is a

continuous duty unbridled by any political considerations.

The appointment of the petitioner, moreover, is in ful

accord with the intent behind the Local Government Code

There is no question that Section 49 in connection with

Section 52 of the Local Government Code shows clearly the

intent to provide for continuity in the performance of the

duties of the Vice-Governor.

The Local Government Code provides for the mode o

succession in case of a permanent vacancy, viz:

Section 49:

In case a permanent vacancy arises when a

Vice-Governor assumes the Office of the Governor

. . . refuses to assume office, fails to qualify, dies, is

removed from office, voluntary resigns or is

otherwise permanently incapacitated to discharge

the functions of his office the sangguniang

panlalawigan . . . member who obtained the

highest number of votes in the election

immediately preceding, . . . shall assume the officefor the unexpired term of the Vice-Governor. . . .

By virtue of the surroundings circumstance of this case

the mode of succession provided for permanent vacancies

may likewise be observed in case of a temporary vacancy

in the same office. In this case, there was a need to fill the

vacancy. The petitioner is himself the member of the

Sangguniang Panlalawigan who obtained the highest

number of votes. The Department Secretary acted

correctly in extending the temporary appointment.

In view of the foregoing, the petitioner's right to be paid

the salary attached to the Office of the Vice Governor is

indubitable. The compensation, however, to beremunerated to the petitioner, following the example in

Commonwealth Act No. 588 and the Revised

Administrative Code, and pursuant to the proscription

against double compensation must only be such additiona

compensation as, with his existing salary, shall not exceed

the salary authorized by law for the Office of the

Vice-Governor.

And finally, even granting that the President, acting

through the Secretary of Local Government, possesses no

power to appoint the petitioner, at the very least, the

petitioner is a de facto officer entitled to compensation.


9/37

There is no denying that the petitioner assumed the Office

of the Vice-Governor under color of a known appointment.

As revealed by the records, the petitioner was appointed

by no less than the alter ego of the President, the Secretary

of Local Government, after which he took his oath of office

before Senator Alberto Romulo in the Office of Department

of Local Government Regional Director Res Salvatierra.

Concededly, the appointment has the color of validity. The

respondents themselves acknowledged the validity of the

petitioner's appointment and dealt with him as such. Itwas only when the controversial Resolution No. 505 was

passed by the same persons who recognized him as the

acting Vice-Governor that the validity of the appointment

of the petitioner was made an issue and the recognition

withdrawn.

The petitioner, for a long period of time, exercised the

duties attached to the Office of the Vice-Governor. He was

acclaimed as such by the people of Leyte. Upon the

principle of public policy on which the de facto doctrine is

based and basic considerations of justice, it would be

highly iniquitous to now deny him the salary due him for

the services he actually rendered as the acting

Vice-Governor of the province of Leyte. (See Cantillo v.

Arrieta, 61 SCRA 55 [1974])

WHEREFORE, the COURT hereby GRANTS the motion for

reconsideration. The additional compensation which the

petitioner has received, in the amount exceeding the salary

authorized by law for the position of Senior Board

Member, shall be considered as payment for the actual

services rendered as acting Vice-Governor and may be

retained by him. SO ORDERED.


10/37

G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,vs.

THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. andCRISPIN T. REYES, petitioners,vs.

PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform;CARLOS DOMINGUEZ, as Secretary of Agriculture;LOURDES QUISUMBING, as Secretary of Education,Culture and Sports; FULGENCIO FACTORAN, JR., asSecretary of Environment and Natural Resources;VICENTE V. JAYME, as Secretary of Finance; SEDFREYORDOEZ, as Secretary of Justice; FRANKLIN N.DRILON, as Secretary of Labor and Employment; LUISSANTOS, as Secretary of Local Government; FIDEL V.RAMOS, as Secretary of National Defense; TEODORO F.BENIGNO, as Press Secretary; JUANITO FERRER, asSecretary of Public Works and Highways; ANTONIOARRIZABAL, as Secretary of Science and Technology;

JOSE CONCEPCION, as Secretary of Trade and Industry;JOSE ANTONIO GONZALEZ, as Secretary of Tourism;ALFREDO R.A. BENGZON, as Secretary of Health;REINERIO D. REYES, as Secretary of Transportationand Communication; GUILLERMO CARAGUE, asCommissioner of the Budget; and SOLITA MONSOD, asHead of the National Economic DevelopmentAuthority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and

Juan T. David for petitioners in 83896.

Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution

dated August 9, 1988 1 and are being resolved jointly as

both seek a declaration of the unconstitutionality of

Executive Order No. 284 issued by President Corazon C.

Aquino on July 25, 1987. The pertinent provisions of the

assailed Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary

functions of his position, a member of the Cabinet,

undersecretary or assistant secretary or other

appointive officials of the Executive Department

may, in addition to his primary position, hold not

more than two positions in the government and

government corporations and receive thecorresponding compensation therefor; Provided,

that this limitation shall not apply to ad hoc bodies

or committees, or to boards, councils or bodies of

which the President is the Chairman.

Sec. 2. If a member of the cabinet, undersecretary

or assistant secretary or other appointive official

of the Executive Department holds more positions

than what is allowed in Section 1 hereof, they (sic)

must relinquish the excess position in favor of the

subordinate official who is next in rank, but in no

case shall any official hold more than two

positions other than his primary position.

Sec. 3. In order to fully protect the interest of the

government in government-owned or controlled

corporations, at least one-third (1/3) of the

members of the boards of such corporation should

either be a secretary, or undersecretary, or

assistant secretary.

Petitioners maintain that this Executive Order which, in

effect, allows members of the Cabinet, their

undersecretaries and assistant secretaries to hold other

government offices or positions in addition to their

primary positions, albeit subject to the limitation therein

imposed, runs counter to Section 13, Article VII of the 1987

Constitution, 2 which provides as follows:

Sec. 13. The President, Vice-President, the

Members of the Cabinet, and their deputies or

assistants shall not, unless otherwise provided in

this Constitution, hold any other office or

employment during their tenure. They shall not

during said tenure, directly or indirectly practice

any other profession, participate in any business

or be financially interested in any contract with, orin any franchise, or special privilege granted by

the Government or any subdivision, agency, or

instrumentality thereof, including

government-owned or controlled corporations or

their subsidiaries. They shall strictly avoid conflict

of interest in the conduct of their office.

It is alleged that the above-quoted Section 13, Article VII

prohibits public respondents, as members of the Cabinet

along with the other public officials enumerated in the list

attached to the petitions as Annex "C" in G.R. No.

83815 3 and as Annex "B" in G.R. No. 83896 4 from holding

any other office or employment during their tenure. In

addition to seeking a declaration of the unconstitutionalityof Executive Order No. 284, petitioner Anti-Graft League o

the Philippines further seeks in G.R. No. 83815 the

issuance of the extraordinary writs of prohibition and

mandamus, as well as a temporary restraining order

directing public respondents therein to cease and desist

from holding, in addition to their primary positions, dua

or multiple positions other than those authorized by the

1987 Constitution and from receiving any salaries

allowances, per diems and other forms of privileges and

the like appurtenant to their questioned positions, and

compelling public respondents to return, reimburse or

refund any and all amounts or benefits that they may have

received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines

charges that notwithstanding the aforequoted "absolute

and self-executing" provision of the 1987 Constitution

then Secretary of Justice Sedfrey Ordoez, construing

Section 13, Article VII in relation to Section 7, par. (2)

Article IX-B, rendered on July 23, 1987 Opinion No. 73

series of 1987, 5 declaring that Cabinet members, their

deputies (undersecretaries) and assistant secretaries may

hold other public office, including membership in the

boards of government corporations: (a) when directly

provided for in the Constitution as in the case of the


11/37

Secretary of Justice who is made an ex-officio member of

the Judicial and Bar Council under Section 8, paragraph 1,

Article VIII; or (b) if allowed by law; or (c) if allowed by the

primary functions of their respective positions; and that on

the basis of this Opinion, the President of the Philippines,

on July 25, 1987 or two (2) days before Congress convened

on July 27, 1987: promulgated Executive Order No. 284. 6

Petitioner Anti-Graft League of the Philippines objects to

both DOJ Opinion No. 73 and Executive Order No. 284 as

they allegedly "lumped together" Section 13, Article VIIand the general provision in another article, Section 7, par.

(2), Article I-XB. This "strained linkage" between the two

provisions, each addressed to a distinct and separate

group of public officers one, the President and her

official family, and the other, public servants in general

allegedly "abolished the clearly separate, higher, exclusive,

and mandatory constitutional rank assigned to the

prohibition against multiple jobs for the President, the

Vice-President, the members of the Cabinet, and their

deputies and subalterns, who are the leaders of

government expected to lead by example." 7 Article IX-B,

Section 7, par. (2) 8 provides:

Sec. 7. . . . . .

Unless otherwise allowed by law or by the primary

functions of his position, no appointive official shall

hold any other office or employment in the

government or any subdivision, agency or

instrumentality thereof, including

government-owned or controlled corporations or

their subsidiaries.

The Solicitor General counters that Department of Justice

DOJ Opinion No. 73, series of 1987, as further elucidated

and clarified by DOJ Opinion No. 129, series of 1987 9 and

DOJ Opinion No. 155, series of 1988, 10 being the first

official construction and interpretation by the Secretary ofJustice of Section 13, Article VII and par. (2) of Section 7,

Article I-XB of the Constitution, involving the same subject

of appointments or designations of an appointive

executive official to positions other than his primary

position, is "reasonably valid and constitutionally firm,"

and that Executive Order No. 284, promulgated pursuant

to DOJ Opinion No. 73, series of 1987 is consequently

constitutional. It is worth noting that DOJ Opinion No. 129,

series of 1987 and DOJ Opinion No. 155, series of 1988

construed the limitation imposed by E.O. No. 284 as not

applying to ex-officio positions or to positions which,

although not so designated as ex-officio are allowed by the

primary functions of the public official, but only to theholding of multiple positions which are not related to or

necessarily included in the position of the public official

concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is

being challenged by petitioners on the principal

submission that it adds exceptions to Section 13, Article

VII other than those provided in the Constitution.

According to petitioners, by virtue of the phrase "unless

otherwise provided in this Constitution," the only

exceptions against holding any other office or employment

in Government are those provided in the Constitution,

namely: (1) The Vice-President may be appointed as a

Member of the Cabinet under Section 3, par. (2), Article VI

thereof; and (2) the Secretary of Justice is an ex-officio

member of the Judicial and Bar Council by virtue of Section

8 (1), Article VIII.

Petitioners further argue that the exception to the

prohibition in Section 7, par. (2), Article I-XB on the Civi

Service Commission applies to officers and employees o

the Civil Service in general and that said exceptions do not

apply and cannot be extended to Section 13, Article VIwhich applies specifically to the President, Vice-President

Members of the Cabinet and their deputies or assistants.

There is no dispute that the prohibition against the

President, Vice-President, the members of the Cabinet and

their deputies or assistants from holding dual or multiple

positions in the Government admits of certain exceptions

The disagreement between petitioners and public

respondents lies on the constitutional basis of the

exception. Petitioners insist that because of the phrase

"unless otherwise provided in this Constitution" used in

Section 13 of Article VII, the exception must be expressly

provided in the Constitution, as in the case of the

Vice-President being allowed to become a Member of the

Cabinet under the second paragraph of Section 3, Article

VII or the Secretary of Justice being designated an ex-officio

member of the Judicial and Bar Council under Article VIII

Sec. 8 (1). Public respondents, on the other hand, maintain

that the phrase "unless otherwise provided in the

Constitution" in Section 13, Article VII makes reference to

Section 7, par. (2), Article I-XB insofar as the appointive

officials mentioned therein are concerned.

The threshold question therefore is: does the prohibition

in Section 13, Article VII of the 1987 Constitution insofar

as Cabinet members, their deputies or assistants are

concerned admit of the broad exceptions made forappointive officials in general under Section 7, par. (2)

Article I-XB which, for easy reference is quoted anew, thus

"Unless otherwise allowed by law or by the primary

functions of his position, no appointive official shall hold

any other office or employment in the Government or any

subdivision, agency or instrumentality thereof, including

government-owned or controlled corporation or their

subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the

intention underlying the provision under consideration

Thus, it has been held that the Court in construing aConstitution should bear in mind the object sought to be

accomplished by its adoption, and the evils, if any, sought

to be prevented or remedied. A doubtful provision will be

examined in the light of the history of the times, and the

condition and circumstances under which the Constitution

was framed. The object is to ascertain the reason which

induced the framers of the Constitution to enact the

particular provision and the purpose sought to be

accomplished thereby, in order to construe the whole as to

make the words consonant to that reason and calculated to

effect that purpose. 11


12/37

The practice of designating members of the Cabinet, their

deputies and assistants as members of the governing

bodies or boards of various government agencies and

instrumentalities, including government-owned and

controlled corporations, became prevalent during the time

legislative powers in this country were exercised by

former President Ferdinand E. Marcos pursuant to his

martial law authority. There was a proliferation of

newly-created agencies, instrumentalities and

government-owned and controlled corporations createdby presidential decrees and other modes of presidential

issuances where Cabinet members, their deputies or

assistants were designated to head or sit as members of

the board with the corresponding salaries, emoluments,

per diems, allowances and other perquisites of office. Most

of these instrumentalities have remained up to the present

time.

This practice of holding multiple offices or positions in the

government soon led to abuses by unscrupulous public

officials who took advantage of this scheme for purposes of

self-enrichment. In fact, the holding of multiple offices in

government was strongly denounced on the floor of the

Batasang Pambansa. 12 This condemnation came inreaction to the published report of the Commission on

Audit, entitled "1983 Summary Annual Audit Report on:

Government-Owned and Controlled Corporations,

Self-Governing Boards and Commissions" which carried as

its Figure No. 4 a "Roaster of Membership in Governing

Boards of Government-Owned and Controlled

Corporations as of December 31, 1983."

Particularly odious and revolting to the people's sense of

propriety and morality in government service were the

data contained therein that Roberto V. Ongpin was a

member of the governing boards of twenty-nine (29)

governmental agencies, instrumentalities and

corporations; Imelda R. Marcos of twenty-three (23); Cesar

E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of

fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of

fourteen each (14); Cesar C. Zalamea of thirteen (13);

Ruben B. Ancheta and Jose A. Roo of twelve (12) each;

Manuel P. Alba, Gilberto O. Teodoro, and Edgardo

Tordesillas of eleven (11) each; and Lilia Bautista and

Teodoro Q. Pea of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the

serious causes of discontent with the Marcos regime. It

was therefore quite inevitable and in consonance with the

overwhelming sentiment of the people that the 1986

Constitutional Commission, convened as it was after thepeople successfully unseated former President Marcos,

should draft into its proposed Constitution the provisions

under consideration which are envisioned to remedy, if

not correct, the evils that flow from the holding of multiple

governmental offices and employment. In fact, as keenly

observed by Mr. Justice Isagani A. Cruz during the

deliberations in these cases, one of the strongest selling

points of the 1987 Constitution during the campaign for its

ratification was the assurance given by its proponents that

the scandalous practice of Cabinet members holding

multiple positions in the government and collecting

unconscionably excessive compensation therefrom would

be discontinued.

But what is indeed significant is the fact that although

Section 7, Article I-XB already contains a blanket

prohibition against the holding of multiple offices or

employment in the government subsuming both elective

and appointive public officials, the Constitutiona

Commission should see it fit to formulate another

provision, Sec. 13, Article VII, specifically prohibiting the

President, Vice-President, members of the Cabinet, their

deputies and assistants from holding any other office oremployment during their tenure, unless otherwise

provided in the Constitution itself.

Evidently, from this move as well as in the different

phraseologies of the constitutional provisions in question

the intent of the framers of the Constitution was to impose

a stricter prohibition on the President and his officia

family in so far as holding other offices or employment in

the government or elsewhere is concerned.

Moreover, such intent is underscored by a comparison of

Section 13, Article VII with other provisions of the

Constitution on the disqualifications of certain public

officials or employees from holding other offices oremployment. Under Section 13, Article VI, "(N)o Senator or

Member of the House of Representatives may hold any

other office or employment in the Government . . .". Under

Section 5(4), Article XVI, "(N)o member of the armed

forces in the active service shall, at any time, be appointed

in any capacity to a civilian position in the Government

including government-owned or controlled corporations

or any of their subsidiaries." Even Section 7 (2), Article

IX-B, relied upon by respondents provides "(U)nless

otherwise allowed by law or by the primary functions o

his position, no appointive official shall hold any other

office or employmentin the Government."

It is quite notable that in all these provisions ondisqualifications to hold other office or employment, the

prohibition pertains to an office or employment in the

government and government-owned or controlled

corporations or their subsidiaries. In striking contrast is

the wording of Section 13, Article VII which states that

"(T)he President, Vice-President, the Members of the

Cabinet, and their deputies or assistants shall not, unless

otherwise provided in this Constitution, hold any other

office or employment during their tenure." In the latter

provision, the disqualification is absolute, not being

qualified by the phrase "in the Government." The

prohibition imposed on the President and his officia

family is therefore all-embracing and covers both publicand private office or employment.

Going further into Section 13, Article VII, the second

sentence provides: "They shall not, during said tenure

directly or indirectly, practice any other profession

participate in any business, or be financially interested in

any contract with, or in any franchise, or special privilege

granted by the Government or any subdivision, agency or

instrumentality thereof, including government-owned or

controlled corporations or their subsidiaries." These

sweeping, all-embracing prohibitions imposed on the

President and his official family, which prohibitions are


13/37

not similarly imposed on other public officials or

employees such as the Members of Congress, members of

the civil service in general and members of the armed

forces, are proof of the intent of the 1987 Constitution to

treat the President and his official family as a class by itself

and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be

stricter with the President and his official family was also

succinctly articulated by Commissioner Vicente Foz after

Commissioner Regalado Maambong noted during the floordeliberations and debate that there was no symmetry

between the Civil Service prohibitions, originally found in

the General Provisions and the anticipated report on the

Executive Department. Commissioner Foz Commented,

"We actually have to be stricter with the President and the

members of the Cabinet because they exercise more

powers and, therefore, more cheeks and restraints on

them are called for because there is more possibility of

abuse in their case." 14

Thus, while all other appointive officials in the civil service

are allowed to hold other office or employment in the

government during their tenure when such is allowed by

law or by the primary functions of their positions,

members of the Cabinet, their deputies and assistants may

do so only when expressly authorized by the Constitution

itself. In other words, Section 7, Article I-XB is meant to lay

down the general rule applicable to all elective and

appointive public officials and employees, while Section

13, Article VII is meant to be the exception applicable only

to the President, the Vice- President, Members of the

Cabinet, their deputies and assistants.

This being the case, the qualifying phrase "unless

otherwise provided in this Constitution" in Section 13,

Article VII cannot possibly refer to the broad exceptions

provided under Section 7, Article I-XB of the 1987Constitution. To construe said qualifying phrase as

respondents would have us do, would render nugatory and

meaningless the manifest intent and purpose of the

framers of the Constitution to impose a stricter prohibition

on the President, Vice-President, Members of the Cabinet,

their deputies and assistants with respect to holding other

offices or employment in the government during their

tenure. Respondents' interpretation that Section 13 of

Article VII admits of the exceptions found in Section 7, par.

(2) of Article IX-B would obliterate the distinction so

carefully set by the framers of the Constitution as to when

the high-ranking officials of the Executive Branch from the

President to Assistant Secretary, on the one hand, and thegenerality of civil servants from the rank immediately

below Assistant Secretary downwards, on the other, may

hold any other office or position in the government during

their tenure.

Moreover, respondents' reading of the provisions in

question would render certain parts of the Constitution

inoperative. This observation applies particularly to the

Vice-President who, under Section 13 of Article VII is

allowed to hold other office or employment when so

authorized by the Constitution, but who as an elective

public official under Sec. 7, par. (1) of Article I-XB is

absolutely ineligible "for appointment or designation in

any capacity to any public office or position during his

tenure." Surely, to say that the phrase "unless otherwise

provided in this Constitution" found in Section 13, Article

VII has reference to Section 7, par. (1) of Article I-XB would

render meaningless the specific provisions of the

Constitution authorizing the Vice-President to become a

member of the Cabinet, 15 and to act as President without

relinquishing the Vice-Presidency where the President

shall not nave been chosen or fails to qualify.16

Suchabsurd consequence can be avoided only by interpretingthe two provisions under consideration as one, i.e., Section

7, par. (1) of Article I-XB providing the general rule and the

other, i.e., Section 13, Article VII as constituting the

exception thereto. In the same manner must Section 7, par

(2) of Article I-XB be construed vis-a-vis Section 13, Article

VII.

It is a well-established rule in Constitutional construction

that no one provision of the Constitution is to be separated

from all the others, to be considered alone, but that all the

provisions bearing upon a particular subject are to be

brought into view and to be so interpreted as to effectuate

the great purposes of the instrument. 17 Sections bearingon a particular subject should be considered and

interpreted together as to effectuate the whole purpose o

the Constitution 18 and one section is not to be allowed to

defeat another, if by any reasonable construction, the two

can be made to stand together. 19

In other words, the court must harmonize them, i

practicable, and must lean in favor of a construction which

will render every word operative, rather than one which

may make the words idle and nugatory. 20

Since the evident purpose of the framers of the 1987

Constitution is to impose a stricter prohibition on the

President, Vice-President, members of the Cabinet, theirdeputies and assistants with respect to holding multiple

offices or employment in the government during their

tenure, the exception to this prohibition must be read with

equal severity. On its face, the language of Section 13

Article VII is prohibitory so that it must be understood as

intended to be a positive and unequivocal negation of the

privilege of holding multiple government offices or

employment. Verily, wherever the language used in the

constitution is prohibitory, it is to be understood as

intended to be a positive and unequivocal negation. 21 The

phrase "unless otherwise provided in this Constitution"

must be given a literal interpretation to refer only to those

particular instances cited in the Constitution itself, to witthe Vice-President being appointed as a member of the

Cabinet under Section 3, par. (2), Article VII; or acting as

President in those instances provided under Section 7

pars. (2) and (3), Article VII; and, the Secretary of Justice

being ex-officio member of the Judicial and Bar Council by

virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or

employment under Section 13, Article VII of the

Constitution must not, however, be construed as applying

to posts occupied by the Executive officials specified

therein without additional compensation in an ex-officio


14/37

capacity as provided by law and as required 22 by theprimary functions of said officials' office. The reason is that

these posts do no comprise "any other office" within the

contemplation of the constitutional prohibition but are

properly an imposition of additional duties and functions

on said officials. 23 To characterize these posts otherwise

would lead to absurd consequences, among which are: The

President of the Philippines cannot chair the National

Security Council reorganized under Executive Order No.

115 (December 24, 1986). Neither can the Vice-President,the Executive Secretary, and the Secretaries of National

Defense, Justice, Labor and Employment and Local

Government sit in this Council, which would then have no

reason to exist for lack of a chairperson and members. The

respective undersecretaries and assistant secretaries,

would also be prohibited.

The Secretary of Labor and Employment cannot chair the

Board of Trustees of the National Manpower and Youth

Council (NMYC) or the Philippine Overseas Employment

Administration (POEA), both of which are attached to his

department for policy coordination and guidance. Neither

can his Undersecretaries and Assistant Secretaries chair

these agencies.

The Secretaries of Finance and Budget cannot sit in the

Monetary

Board. 24Neither can their respective undersecretaries andassistant secretaries. The Central Bank Governor would

then be assisted by lower ranking employees in providing

policy direction in the areas of money, banking and credit.

25

Indeed, the framers of our Constitution could not have

intended such absurd consequences. A Constitution,

viewed as a continuously operative charter of government,

is not to be interpreted as demanding the impossible or

the impracticable; and unreasonable or absurdconsequences, if possible, should be avoided. 26

To reiterate, the prohibition under Section 13, Article VII is

not to be interpreted as covering positions held without

additional compensation in ex-officio capacities as

provided by law and as required by the primary functions

of the concerned official's office. The term ex-officio means

"from office; by virtue of office." It refers to an "authority

derived from official character merely, not expressly

conferred upon the individual character, but rather

annexed to the official position." Ex-officio likewise

denotes an "act done in an official character, or as a

consequence of office, and without any other appointment

or authority than that conferred by the office." 27 Anex-officio member of a board is one who is a member by

virtue of his title to a certain office, and without further

warrant or appointment. 28 To illustrate, by express

provision of law, the Secretary of Transportation and

Communications is the ex-officio Chairman of the Board of

the Philippine Ports Authority, 29 and the Light Rail Transit

Authority. 30

The Court had occasion to explain the meaning of an

ex-officio position in Rafael vs. Embroidery and Apparel

Control and Inspection Board, 31 thus: "An examination of

section 2 of the questioned statute (R.A. 3137) reveals that

for the chairman and members of the Board to qualify they

need only be designated by the respective department

heads. With the exception of the representative from the

private sector, they sitex-officio. In order to be designated

they must already be holding positions in the offices

mentioned in the law. Thus, for instance, one who does not

hold a previous appointment in the Bureau of Customs

cannot, under the act, be designated a representative from

that office. The same is true with respect to the

representatives from the other offices. No newappointments are necessary. This is as it should be

because the representatives so designated merely perform

duties in the Board in addition to those already performed

under their original appointments." 32

The term "primary" used to describe "functions" refers to

the order of importance and thus means chief or principal

function. The term is not restricted to the singular but may

refer to the plural. 33 The additional duties must not only

be closely related to, but must be required by the official's

primary functions. Examples of designations to positions

by virtue of one's primary functions are the Secretaries of

Finance and Budget sitting as members of the Monetary

Board, and the Secretary of Transportation andCommunications acting as Chairman of the Maritime

Industry Authority 34and the Civil Aeronautics Board.

If the functions required to be performed are merely

incidental, remotely related, inconsistent, incompatible, or

otherwise alien to the primary function of a cabine

official, such additional functions would fall under the

purview of "any other office" prohibited by the

Constitution. An example would be the Press

Undersecretary sitting as a member of the Board of the

Philippine Amusement and Gaming Corporation. The same

rule applies to such positions which confer on the cabinet

official management functions and/or monetary

compensation, such as but not limited to chairmanships or

directorships in government-owned or controlled

corporations and their subsidiaries.

Mandating additional duties and functions to the

President, Vice-President, Cabinet Members, their deputies

or assistants which are not inconsistent with those already

prescribed by their offices or appointments by virtue of

their special knowledge, expertise and skill in their

respective executive offices is a practice long-recognized in

many jurisdictions. It is a practice justified by the demands

of efficiency, policy direction, continuity and coordination

among the different offices in the Executive Branch in the

discharge of its multifarious tasks of executing andimplementing laws affecting national interest and genera

welfare and delivering basic services to the people. It is

consistent with the power vested on the President and his

alter egos, the Cabinet members, to have control of all the

executive departments, bureaus and offices and to ensure

that the laws are faithfully executed. 35 Without these

additional duties and functions being assigned to the

President and his official family to sit in the governing

bodies or boards of governmental agencies or

instrumentalities in an ex-officio capacity as provided by

law and as required by their primary functions, they would

be supervision, thereby deprived of the means for contro


15/37

and resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional

duties or functions may not transgress the prohibition

embodied in Section 13, Article VII of the 1987

Constitution, such additional duties or functions must be

required by the primary functions of the official concerned,

who is to perform the same in an ex-officio capacity as

provided by law, without receiving any additional

compensation therefor.

The ex-officio position being actually and in legal

contemplation part of the principal office, it follows that

the official concerned has no right to receive additional

compensation for his services in the said position. The

reason is that these services are already paid for and

covered by the compensation attached to his principal

office. It should be obvious that if, say, the Secretary of

Finance attends a meeting of the Monetary Board as an

ex-officio member thereof, he is actually and in legal

contemplation performing the primary function of his

principal office in defining policy in monetary and banking

matters, which come under the jurisdiction of his

department. For such attendance, therefore, he is not

entitled to collect any extra compensation, whether it be in

the form of a per them or an honorarium or an allowance,

or some other such euphemism. By whatever name it is

designated, such additional compensation is prohibited by

the Constitution.

It is interesting to note that during the floor deliberations

on the proposal of Commissioner Christian Monsod to add

to Section 7, par. (2), Article IX-B, originally found as

Section 3 of the General Provisions, the exception "unless

required by the functions of his position," 36 express

reference to certain high-ranking appointive public

officials like members of the Cabinet were made. 37

Responding to a query of Commissioner Blas Ople,Commissioner Monsod pointed out that there are

instances when although not required by current law,

membership of certain high-ranking executive officials in

other offices and corporations is necessary by reason of

said officials' primary functions. The example given by

Commissioner Monsod was the Minister of Trade and

Industry. 38

While this exchange between Commissioners Monsod and

Ople may be used as authority for saying that additional

functions and duties flowing from the primary functions of

the official may be imposed upon him without offending

the constitutional prohibition under consideration, it

cannot, however, be taken as authority for saying that thisexception is by virtue of Section 7, par. (2) of Article I-XB.

This colloquy between the two Commissioners took place

in the plenary session of September 27, 1986. Under

consideration then was Section 3 of Committee Resolution

No. 531 which was the proposed article on General

Provisions. 39 At that time, the article on the Civil Service

Commission had been approved on third reading on July

22, 1986, 40 while the article on the Executive Department,

containing the more specific prohibition in Section 13, had

also been earlier approved on third reading on August 26,

1986. 41 It was only after the draft Constitution had

undergone reformatti

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