Civil Liberties Union v. Exec. Sec.,
194 SCRA 317
Facts:
These two (2) petitions were consolidated per resolution dated August 9, 1988 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 the corresponding 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.
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, 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, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
The 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 VII 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.
Issue:
Whether E.O 284 is Constitutional.
Held:
Negative. It is quite notable that in all these provisions on disqualifications 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 official family is therefore all-embracing and covers both public and private office, and 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 not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article 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 1987 Constitution. 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 the generality 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.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials' office. The reason is that these posts do 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. 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.
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." An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. 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, and the Light Rail Transit Authority.
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-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 assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, 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 this decision, 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 offices or 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 impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations 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.
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