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03a Liban v. Gordon Decision
03a Liban v. Gordon Decision
DANTE V. LIBAN,
REYNALDO M. BERNARDO,
and SALVADOR M. VIARI,
Petitione
rs,
- versus -
RICHARD J. GORDON,
Respondent.
Promulgated:
July 15, 2009
x-------------------------------------------------- x
DECISION
CARPIO, J.:
The Case
This is a petition to declare Senator Richard J. Gordon (respondent) as
having forfeited his seat in the Senate.
The Facts
(PNRC)
is
The substantial issue boils down to whether the office of the PNRC
Chairman is a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13, Article
VI of the Constitution.
to the legitimate senators, to the damage, great and irreparable injury of the Government
and the Filipino people.[5] (Emphasis supplied)
The government does not control the PNRC. Under the PNRC
Charter, as amended, only six of the thirty members of the PNRC Board
of Governors are appointed by the President of the Philippines. Thus,
twenty-four members, or four-fifths (4/5), of the PNRC Board of Governors
are not appointed by the President. Section 6 of the PNRC Charter, as
amended, provides:
Thus, of the twenty-four members of the PNRC Board, eighteen are elected
by the chapter delegates of the PNRC, and six are elected by the twenty-four
members already chosen a select group where the private sector
members have three-fourths majority. Clearly, an overwhelming majority
of four-fifths of the PNRC Board are elected or chosen by the private
sector members of the PNRC.
The PNRC Board of Governors, which exercises all corporate powers
of the PNRC, elects the PNRC Chairman and all other officers of the
PNRC. The incumbent Chairman of PNRC, respondent Senator Gordon,
was elected, as all PNRC Chairmen are elected, by a private sectorcontrolled PNRC Board four-fifths of whom are private sector members of
the PNRC. The PNRC Chairman is not appointed by the President or by any
subordinate government official.
Under Section 16, Article VII of the Constitution, [14] the President
appoints all officials and employees in the Executive branch whose
appointments are vested in the President by the Constitution or by law. The
President also appoints those whose appointments are not otherwise
provided by law. Under this Section 16, the law may also authorize the
heads of departments, agencies, commissions, or boards to appoint
officers lower in rank than such heads of departments, agencies,
commissions or boards.[15] In Rufino v. Endriga,[16] the Court explained
appointments under Section 16 in this wise:
Under Section 16, Article VII of the 1987 Constitution, the
President appoints three groups of officers. The first group refers to the
heads of the Executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in the President
by the Constitution. The second group refers to those whom the President
may be authorized by law to appoint. The third group refers to all other
The President does not appoint the Chairman of the PNRC. Neither
does the head of any department, agency, commission or board appoint the
PNRC Chairman. Thus, the PNRC Chairman is not an official or employee
of the Executive branch since his appointment does not fall under Section
16, Article VII of the Constitution. Certainly, the PNRC Chairman is not an
official or employee of the Judiciary or Legislature. This leads us to the
obvious conclusion that the PNRC Chairman is not an official or employee
of the Philippine Government. Not being a government official or
employee, the PNRC Chairman, as such, does not hold a government
office or employment.
Under Section 17, Article VII of the Constitution, [17] the President
exercises control over all government offices in the Executive branch. If an
office is legally not under the control of the President, then such office is
not part of the Executive branch. In Rufino v. Endriga,[18] the Court
explained the Presidents power of control over all government offices as
follows:
Thus, the PNRC is a privately owned, privately funded, and privately run
charitable organization. The PNRC is not a government-owned or controlled
corporation.
Petitioners anchor their petition on the 1999 case of Camporedondo v.
NLRC,[22] which ruled that the PNRC is a government-owned or controlled
corporation. In ruling that the PNRC is a government-owned or controlled
corporation, the simple test used was whether the corporation was created by
The government also controls the Local Water Districts because the
municipal or city mayor, or the provincial governor, appoints all the board
directors of the Local Water Districts. Furthermore, the board directors and
other personnel of the Local Water Districts are government employees
subject to civil service laws and anti-graft laws. Clearly, the Local Water
Districts are considered government-owned or controlled corporations not
only because of their creation by special charter but also because the
government in fact owns and controls the Local Water Districts.
Just like the Local Water Districts, the PNRC was created through a
special charter. However, unlike the Local Water Districts, the elements
of government ownership and control are clearly lacking in the PNRC.
Thus, although the PNRC is created by a special charter, it cannot be
considered a government-owned or controlled corporation in the absence of
the essential elements of ownership and control by the government. In
creating the PNRC as a corporate entity, Congress was in fact creating a
private corporation. However, the constitutional prohibition against the
creation of private corporations by special charters provides no exception
even for non-profit or charitable corporations. Consequently, the PNRC
Charter, insofar as it creates the PNRC as a private corporation and grants it
corporate powers,[27] is void for being unconstitutional. Thus, Sections 1,
[28]
2,[29] 3,[30] 4(a),[31] 5,[32] 6,[33] 7,[34] 8,[35] 9,[36] 10,[37] 11,[38] 12,[39] and 13[40] of the
PNRC Charter, as amended, are void.
The other provisions[41] of the PNRC Charter remain valid as they can
be considered as a recognition by the State that the unincorporated PNRC is
the local National Society of the International Red Cross and Red Crescent
Movement, and thus entitled to the benefits, exemptions and privileges set
forth in the PNRC Charter. The other provisions of the PNRC Charter
implement the Philippine Governments treaty obligations under Article 4(5)
of the Statutes of the International Red Cross and Red Crescent Movement,
which provides that to be recognized as a National Society, the Society must
be duly recognized by the legal government of its country on the basis of
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
RENATO C. CORONA
ANTONIO
EDUARDO
NACHURA
Associate Justice
ARTURO D. BRION
Associate Justice
B. TERESITA
CASTRO
J.
LEONARDO-DE
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that
the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
CHIEF JUSTICE
[1]
ARTICLE 4
Conditions for Recognition of National Societies
[21]
Conventions is not, and shall not be construed as a religious symbol, and shall have equal efficacy
and applicability to persons of all faiths, creeds and beliefs. The operational jurisdiction of the
Philippine National Red Cross shall be over the entire territory of the Philippines.
[30]
SEC. 3. That the purposes of this Corporation shall be as follows:
a. To provide volunteer aid to the sick and wounded of the armed forces in time of war, in
accordance with the spirit of and under the conditions prescribed by the Geneva Conventions to which
the Republic of the Philippines proclaimed its adherence;
b. For the purposes mentioned in the preceding sub-section, to perform all duties devolving upon
the Corporation as a result of the adherence of the Republic of the Philippines to the said Convention;
c. To act in matters of voluntary relief and in accordance with the authorities of the armed forces
as a medium of communication between the people of the Republic of the Philippines and their Armed
Forces, in time of peace and in time of war, and to act in such matters between similar national societies
of other governments and the Government and people and the Armed Forces of the Republic of the
Philippines;
d. To establish and maintain a system of national and international relief in time of peace and in
time of war and apply the same in meeting the emergency needs caused by typhoons, flood, fires,
earthquakes, and other natural disasters and to devise and carry on measures for minimizing the
suffering caused by such disasters;
e. To devise and promote such other services in time of peace and in time of war as may be
found desirable in improving the health, safety and welfare of the Filipino people;
f. To devise such means as to make every citizen and/or resident of the Philippines a member of
the Red Cross.
[31]
SEC. 4. In furtherance of the purposes mentioned in the preceding sub-paragraphs, the Philippine
National Red Cross shall:
a. Be authorized to secure loans from any financial institution which shall not exceed its budget
of the previous year.
[32]
SEC. 5. Membership in the Philippine National Red Cross shall be open to the entire population in the
Philippines regardless of citizenship. Any contribution to the Philippine National Red Cross
Annual Fund Campaign shall entitle the contributor to membership for one year and said
contribution shall be deductible in full for taxation purposes.
[33]
SEC. 6. The governing powers and authority shall be vested in the Board of Governors composed of
thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall
be elected by chapter delegates in biennial conventions and the remaining six shall be selected by
the twenty-four members of the Board already chosen. At least one but not more than three of the
Presidential appointees shall be chosen from the Armed Forces of the Philippines.
a. The term of office of all members of the Board shall be four years, including those appointed
by the President of the Philippines, renewable at the pleasure of the appointing power or elective bodies.
b. Vacancies in the Board of Governors caused by death or resignation shall be filled by election
by the Board of Governors at its next meeting, except that vacancies among the Presidential appointees
shall be filled by the President.
[34]
SEC. 7. The President of the Philippines shall be the Honorary President of the Philippine National Red
Cross. The officers shall consist of a Chairman, a Vice-Chairman, a Secretary, a Treasurer, a
Counselor, an Assistant Secretary and an Assistant Treasurer, all of whom shall be elected by the
Board of Governors from among its membership for a term of two years and may be re-elected.
The election of officers shall take place within sixty days after all the members of the Board of
Governors have been chosen and have qualified.
[35]
SEC. 8. The Biennial meeting of chapter delegates shall be held on such date and such place as may be
specified by the Board of Governors to elect members of the Board of Governors and advice the
Board of Governors on the activities of the Philippine National Red Cross; Provided, however,
that during periods of great emergency, the Board of Governors in its discretion may determine
that the best interest of the corporation shall be served by postponing such biennial meeting.
[36]
SEC. 9. The power to ordain, adopt and amend by-laws and regulations shall be vested in the Board of
Governors.
[37]
SEC. 10. The members of the Board of Governors, as well as the officers of the corporation, shall serve
without compensation. The compensation of the paid staff of the corporation shall be determined
by the Board of Governors upon the recommendation of the Secretary General.
[38]
SEC. 11. As a national voluntary organization, the Philippine National Red Cross shall be financed
primarily by contributions obtained through solicitation campaigns throughout the year which
shall be organized by the Board of Governors and conducted by the Chapters in their respective
jurisdictions. These fund raising campaigns shall be conducted independently of other fund drives
by other organizations.
[39]
SEC. 12. The Board of Governors shall promulgate rules and regulations for the organization of local
units of the Philippine National Red Cross to be known as Chapters. Said rules and regulations
shall fix the relationship of the Chapters to the Corporation, define their territorial jurisdictions,
and determine the number of delegates for each chapter based on population, fund campaign
potentials and service needs.
[40]
SEC. 13. The Corporation shall, at the end of every calendar year submit to the President of the
Philippines an annual report containing the activities of the Corporation showing its financial
condition, the receipts and disbursements.
[41]
The valid provisions are Sections 4(b) and (c), 14, 15, 16, and 17:
SEC. 4. In furtherance of the purposes mentioned in the preceding sub-paragraphs,
the Philippine National Red Cross shall:
xxx
b. Be exempt from payment of all duties, taxes, fees, and other charges of all kinds on
all importations and purchases for its exclusive use, on donations for its disaster relief work and
other Red Cross services, and in its benefits and fund raising drives all provisions of law to the
contrary notwithstanding.
c. Be allotted by the Philippine Charity Sweepstakes Office one lottery draw yearly for the support of
its disaster relief operations in addition to its existing lottery draws for the Blood Program.
SEC. 14. It shall be unlawful for any person to solicit, collect or receive money,
materials, or property of any kind by falsely representing or pretending himself to be a member,
agent or representative of the Philippine National Red Cross.
SEC. 15. The use of the name Red Cross is reserved exclusively to the Philippine
National Red Cross and the use of the emblem of the red Greek cross on a white ground is
reserved exclusively to the Philippine National Red Cross, medical services of the Armed Forces
of the Philippines and such other medical facilities or other institutions as may be authorized by
the Philippine National Red Cross as provided under Article 44 of the Geneva Conventions. It
shall be unlawful for any other person or entity to use the words Red Cross or Geneva Cross or to
use the emblem of the red Greek cross on a white ground or any designation, sign, or insignia
constituting an imitation thereof for any purpose whatsoever.
SEC. 16. As used in this Decree, the term person shall include any legal person, group, or legal
entity whatsoever nature, and any person violating any section of this Article shall, upon conviction
therefore be liable to a fin[e] of not less than one thousand pesos or imprisonment for a term not
exceeding one year, or both, at the discretion of the court, for each and every offense. In case the
violation is committed by a corporation or association, the penalty shall devolve upon the president,
director or any other officer responsible for such violation.
SEC. 17. All acts or parts of acts which are inconsistent with the provisions of this Decree are
hereby repealed.