G.R. No.
101949 December 1, 1994 I
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as
Presiding Judge of the Regional Trial Court of
Makati, Branch 61 and STARBRIGHT SALES
ENTERPRISES, INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private
respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the
Revised Rules of Court to reverse and set aside the
Orders dated June 20, 1991 and September 19, 1991
of the Regional Trial Court, Branch 61, Makati,
Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of
petitioner to dismiss the complaint in Civil Case No.
90-183, while the Order dated September 19, 1991
denied the motion for reconsideration of the June
20,1991 Order.
Petitioner is the Holy See who exercises sovereignty
over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc.,
is a domestic corporation engaged in the real estate
business.
This petition arose from a controversy over a parcel
of land consisting of 6,000 square meters (Lot 5-A,
Transfer Certificate of Title No. 390440) located in
the Municipality of Parañaque, Metro Manila and
registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D
which are covered by Transfer Certificates of Title
Nos. 271108 and 265388 respectively and registered
in the name of the Philippine Realty Corporation
(PRC).
The three lots were sold to Ramon Licup, through
Msgr. Domingo A. Cirilos, Jr., acting as agent to the
sellers. Later, Licup assigned his rights to the sale to
private respondent.
In view of the refusal of the squatters to vacate the
lots sold to private respondent, a dispute arose as to
who of the parties has the responsibility of evicting
and clearing the land of squatters. Complicating the
relations of the parties was the sale by petitioner of
Lot 5-A to Tropicana Properties and Development
Corporation (Tropicana).
On January 23, 1990, private respondent filed a
complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of
the three parcels of land, and specific performance
and damages against petitioner, represented by the
Papal Nuncio, and three other defendants: namely,
Msgr. Domingo A. Cirilos, Jr., the PRC and
Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988,
Msgr. Cirilos, Jr., on behalf of petitioner and the
PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B
and 5-D at the price of P1,240.00 per square meters;
(2) the agreement to sell was made on the condition
that earnest money of P100,000.00 be paid by Licup
to the sellers, and that the sellers clear the said lots of
squatters who were then occupying the same; (3)
Licup paid the earnest money to Msgr. Cirilos; (4) in
the same month, Licup assigned his rights over the
property to private respondent and informed the
sellers of the said assignment; (5) thereafter, private
respondent demanded from Msgr. Cirilos that the
sellers fulfill their undertaking and clear the property
of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent
undertake the eviction or that the earnest money be
returned to the latter; (6) private respondent
counterproposed that if it would undertake the
eviction of the squatters, the purchase price of the
lots should be reduced from P1,240.00 to P1,150.00
per square meter; (7) Msgr. Cirilos returned the
earnest money of P100,000.00 and wrote private
respondent giving it seven days from receipt of the
letter to pay the original purchase price in cash; (8)
private respondent sent the earnest money back to the
sellers, but later discovered that on March 30, 1989,
petitioner and the PRC, without notice to private
respondent, sold the lots to Tropicana, as evidenced
by two separate Deeds of Sale, one over Lot 5-A, and
another over Lots 5-B and 5-D; and that the sellers'
transfer certificate of title over the lots were
cancelled, transferred and registered in the name of
Tropicana; (9) Tropicana induced petitioner and the
PRC to sell the lots to it and thus enriched itself at the
expense of private respondent; (10) private
respondent demanded the rescission of the sale to
Tropicana and the reconveyance of the lots, to no
avail; and (11) private respondent is willing and able
to comply with the terms of the contract to sell and
has actually made plans to develop the lots into a
townhouse project, but in view of the sellers' breach,
it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment
of the Deeds of Sale between petitioner and the PRC
on the one hand, and Tropicana on the other; (2) the
reconveyance of the lots in question; (3) specific
performance of the agreement to sell between it and
the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos
separately moved to dismiss the complaint —
petitioner for lack of jurisdiction based on sovereign
immunity from suit, and Msgr. Cirilos for being an
improper party. An opposition to the motion was
filed by private respondent.
On June 20, 1991, the trial court issued an order
denying, among others, petitioner's motion to dismiss
after finding that petitioner "shed off [its] sovereign
immunity by entering into the business contract in
question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for
reconsideration of the order. On August 30, 1991,
petitioner filed a "Motion for a Hearing for the Sole
Purpose of Establishing Factual Allegation for claim
of Immunity as a Jurisdictional Defense." So as to
facilitate the determination of its defense of sovereign
immunity, petitioner prayed that a hearing be
conducted to allow it to establish certain facts upon
which the said defense is based. Private respondent
opposed this motion as well as the motion for
reconsideration.
On October 1, 1991, the trial court issued an order
deferring the resolution on the motion for
reconsideration until after trial on the merits and
directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its
petition, petitioner invokes the privilege of sovereign
immunity only on its own behalf and on behalf of its
official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was
filed before us by the Department of Foreign Affairs,
claiming that it has a legal interest in the outcome of
the case as regards the diplomatic immunity of
petitioner, and that it "adopts by reference, the
allegations contained in the petition of the Holy See
insofar as they refer to arguments relative to its claim
of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the
Department of Foreign Affairs. In compliance with
the resolution of this Court, both parties and the
Department of Foreign Affairs submitted their
respective memoranda.
II
A preliminary matter to be threshed out is the
procedural issue of whether the petition
for certiorari under Rule 65 of the Revised Rules of
Court can be availed of to question the order denying
petitioner's motion to dismiss. The general rule is that
an order denying a motion to dismiss is not
reviewable by the appellate courts, the remedy of the
movant being to file his answer and to proceed with
the hearing before the trial court. But the general rule
admits of exceptions, and one of these is when it is
very clear in the records that the trial court has no
alternative but to dismiss the complaint (Philippine
National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114
[1992]. In such a case, it would be a sheer waste of
time and energy to require the parties to undergo the
rigors of a trial.
The other procedural question raised by private
respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the
case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or
international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests
the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to
immunity.
In the United States, the procedure followed is the
process of "suggestion," where the foreign state or
the international organization sued in an American
court requests the Secretary of State to make a
determination as to whether it is entitled to immunity.
If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney
General to submit to the court a "suggestion" that the
defendant is entitled to immunity. In England, a
similar procedure is followed, only the Foreign
Office issues a certification to that effect instead of
submitting a "suggestion" (O'Connell, I International
Law 130 [1965]; Note: Immunity from Suit of
Foreign Sovereign Instrumentalities and Obligations,
50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign
government or the international organization to first
secure an executive endorsement of its claim of
sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to
the courts varies. In International Catholic Migration
Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly
to the Secretary of Labor and Employment,
informing the latter that the respondent-employer
could not be sued because it enjoyed diplomatic
immunity. In World Health Organization v. Aquino,
48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect.
In Baer v. Tizon, 57 SCRA 1 (1974), the U.S.
Embassy asked the Secretary of Foreign Affairs to
request the Solicitor General to make, in behalf of the
Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to
respondent Judge. The Solicitor General embodied
the "suggestion" in a Manifestation and
Memorandum as amicus curiae.
In the case at bench, the Department of Foreign
Affairs, through the Office of Legal Affairs moved
with this Court to be allowed to intervene on the side
of petitioner. The Court allowed the said Department
to file its memorandum in support of petitioner's
claim of sovereign immunity.
In some cases, the defense of sovereign immunity
was submitted directly to the local courts by the
respondents through their private counsels (Raquiza
v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948];
United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the
foreign states bypass the Foreign Office, the courts
can inquire into the facts and make their own
determination as to the nature of the acts and
transactions involved.
III
The burden of the petition is that respondent trial
court has no jurisdiction over petitioner, being a
foreign state enjoying sovereign immunity. On the
other hand, private respondent insists that the
doctrine of non-suability is not anymore absolute and
that petitioner has divested itself of such a cloak
when, of its own free will, it entered into a
commercial transaction for the sale of a parcel of land
located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-
suability, a brief look into its status as a sovereign
state is in order.
Before the annexation of the Papal States by Italy in
1870, the Pope was the monarch and he, as the Holy
See, was considered a subject of International Law.
With the loss of the Papal States and the limitation of
the territory under the Holy See to an area of 108.7
acres, the position of the Holy See in International
Law became controversial (Salonga and Yap, Public
International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the
Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See
over the Vatican City. It also recognized the right of
the Holy See to receive foreign diplomats, to send its
own diplomats to foreign countries, and to enter into
treaties according to International Law (Garcia,
Questions and Problems In International Law, Public
and Private 81 [1948]).
The Lateran Treaty established the statehood of the
Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of
guaranteeing to it indisputable sovereignty also in the
field of international relations" (O'Connell, I
International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is
difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers
even suggested that the treaty created two
international persons — the Holy See and Vatican
City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established
categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from
that in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz,
International Law 37 [1991]). In a community of
national states, the Vatican City represents an entity
organized not for political but for ecclesiastical
purposes and international objects. Despite its size
and object, the Vatican City has an independent
government of its own, with the Pope, who is also
head of the Roman Catholic Church, as the Holy See
or Head of State, in conformity with its traditions,
and the demands of its mission in the world. Indeed,
the world-wide interests and activities of the Vatican
City are such as to make it in a sense an
"international state" (Fenwick, supra., 125; Kelsen,
Principles of International Law 160 [1956]).
One authority wrote that the recognition of the
Vatican City as a state has significant implication —
that it is possible for any entity pursuing objects
essentially different from those pursued by states to
be invested with international personality (Kunz, The
Status of the Holy See in International Law, 46 The
American Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign
relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can
conclude that in the Pope's own view, it is the Holy
See that is the international person.
The Republic of the Philippines has accorded the
Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has
had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to
be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987
Constitution, we have adopted the generally accepted
principles of International Law. Even without this
affirmation, such principles of International Law are
deemed incorporated as part of the law of the land as
a condition and consequence of our admission in the
society of nations (United States of America v.
Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign
immunity, each widely held and firmly established.
According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign.
According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure
gestionis
(United States of America v. Ruiz, 136 SCRA 487
[1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).
Some states passed legislation to serve as guidelines
for the executive or judicial determination when an
act may be considered as jure gestionis. The United
States passed the Foreign Sovereign Immunities Act
of 1976, which defines a commercial activity as
"either a regular course of commercial conduct or a
particular commercial transaction or act."
Furthermore, the law declared that the "commercial
character of the activity shall be determined by
reference to the nature of the course of conduct or
particular transaction or act, rather than by reference
to its purpose." The Canadian Parliament enacted in
1982 an Act to Provide For State Immunity in
Canadian Courts. The Act defines a "commercial
activity" as any particular transaction, act or conduct
or any regular course of conduct that by reason of its
nature, is of a "commercial character."
The restrictive theory, which is intended to be a
solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own.
Legal treatises and the decisions in countries which
follow the restrictive theory have difficulty in
characterizing whether a contract of a sovereign state
with a private party is an act jure gestionis or an
act jure imperii.
The restrictive theory came about because of the
entry of sovereign states into purely commercial
activities remotely connected with the discharge of
governmental functions. This is particularly true with
respect to the Communist states which took control
of nationalized business activities and international
trading.
This Court has considered the following transactions
by a foreign state with private parties as acts jure
imperii: (1) the lease by a foreign government of
apartment buildings for use of its military officers
(Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the
conduct of public bidding for the repair of a wharf at
a United States Naval Station (United States of
America v. Ruiz, supra.); and (3) the change of
employment status of base employees (Sanders v.
Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the
following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook
in the recreation center, consisting of three
restaurants, a cafeteria, a bakery, a store, and a coffee
and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the
general public (United States of America v. Rodrigo,
182 SCRA 644 [1990]); and (2) the bidding for the
operation of barber shops in Clark Air Base in
Angeles City (United States of America v. Guinto,
182 SCRA 644 [1990]). The operation of the
restaurants and other facilities open to the general
public is undoubtedly for profit as a commercial and
not a governmental activity. By entering into the
employment contract with the cook in the discharge
of its proprietary function, the United States
government impliedly divested itself of its sovereign
immunity from suit.
In the absence of legislation defining what activities
and transactions shall be considered "commercial"
and as constituting acts jure gestionis, we have to
come out with our own guidelines, tentative they may
be.
Certainly, the mere entering into a contract by a
foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign
state is engaged in the activity in the regular course
of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act
is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when
it is not undertaken for gain or profit.
As held in United States of America v. Guinto,
(supra):
There is no question that the United States of
America, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered
into a contract in its proprietary or private capacity. It
is only when the contract involves its sovereign or
governmental capacity that no such waiver may be
implied.
In the case at bench, if petitioner has bought and sold
lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an
act jure gestionis. However, petitioner has denied that
the acquisition and subsequent disposal of Lot 5-A
were made for profit but claimed that it acquired said
property for the site of its mission or the Apostolic
Nunciature in the Philippines. Private respondent
failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation
from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of
petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign
sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized
in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 20-22). This treaty was concurred in
by the Philippine Senate and entered into force in the
Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic
envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over
any real action relating to private immovable
property situated in the territory of the receiving state
which the envoy holds on behalf of the sending state
for the purposes of the mission. If this immunity is
provided for a diplomatic envoy, with all the more
reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the
subsequent disposal thereof are likewise clothed with
a governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off
the same because the squatters living thereon made it
almost impossible for petitioner to use it for the
purpose of the donation. The fact that squatters have
occupied and are still occupying the lot, and that they
stubbornly refuse to leave the premises, has been
admitted by private respondent in its complaint
(Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be
determined by the trial court without going to trial in
the light of the pleadings, particularly the admission
of private respondent. Besides, the privilege of
sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of
the Department of Foreign Affairs. As the department
tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV,
Title I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially
certified that the Embassy of the Holy See is a duly
accredited diplomatic mission to the Republic of the
Philippines exempt from local jurisdiction and
entitled to all the rights, privileges and immunities of
a diplomatic mission or embassy in this country
(Rollo, pp. 156-157). The determination of the
executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic
immunity is a political question that is conclusive
upon the courts (International Catholic Migration
Commission v. Calleja, 190 SCRA 130 [1990]).
Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the
courts to accept this claim so as not to embarrass the
executive arm of the government in conducting the
country's foreign relations (World Health
Organization v. Aquino, 48 SCRA 242 [1972]). As
in International Catholic Migration Commission and
in World Health Organization, we abide by the
certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the
case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion.
In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas
& Co. Ltd. Partnership v. Judge Tirso Velasco, G.R.
No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal
remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a
person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse his
cause through diplomatic channels.
Private respondent can ask the Philippine
government, through the Foreign Office, to espouse
its claims against the Holy See. Its first task is to
persuade the Philippine government to take up with
the Holy See the validity of its claims. Of course, the
Foreign Office shall first make a determination of the
impact of its espousal on the relations between the
Philippine government and the Holy See
(Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by
Law of Private Foreign Investments 905, 919
[1964]). Once the Philippine government decides to
espouse the claim, the latter ceases to be a private
cause.
According to the Permanent Court of International
Justice, the forerunner of the International Court of
Justice:
By taking up the case of one of its subjects and by
reporting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality
asserting its own rights — its right to ensure, in the
person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293,
302 [1924]).
WHEREFORE, the petition for certiorari is
GRANTED and the complaint in Civil Case No. 90-
183 against petitioner is DISMISSED.
SO ORDERED.
[ G.R. No. 47800, December 02, 1940 ]
MAXIMO CALALANG, PETITIONER, VS. A. D.
WILLIAMS, ET AL., RESPONDENTS.
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen
and as a taxpayer of Manila, brought before this court
this petition for a writ of prohibition, against the
respondents, A. D. Williams, as Chairman of the
National Traffic Commission; Vicente Fragante, as
Director of Public Works; Sergio Bayan, as Acting
Secretary of Public Works and Communications;
Eulogio Rodriguez, as Mayor of the City of Manila;
and Juan Dominguez, as Acting Chief of Police of
Manila.
It is alleged in the petition that the National Traffic
Commission, in its resolution of July 17, 1940,
resolved to recommend to the Director of Public
Works and to the Secretary of Public Works and
Communications that animal-drawn vehicles be
prohibited from passing along Rosario Street
extending from Plaza Calderon de la Barca to
Dasmarinas Street, from 7:30 a. m. to 12:30 p. m. and
from 1:30 p. m. to 5:30 p. m.; and along Rizal
Avenue extending from the railroad crossing at
Antipolo Street to' Echague Street, from 7 a. m. to 11
p.m., for a period of one year from the date of the
opening of the Colgante Bridge to traffic; that the
Chairman of the National Traffic Commission, on
July 18, 1940, recommended to the Director of Public
Works the adoption of the measure proposed in the
resokjfeion aforementioned, in pursuance of the
provisions orCommonwealth Act No. 548 which
authorizes said Director of Public Works, with the
approval of the Secretary of Public Works and
Communications, to promulgate rules and regulations
to regulate and control the use of and traffic on
national roads^fiiat on August 2, 1940, the Director
of Public Works, in his first indorsement to the
Secretary of Public Works and Communications,
recommended to the latter the approval of the
recommendation made by the Chairman of the
National Traffic Commission as aforesaid, with the
modification that the closing of Rizal Avenue to
traffic of animal-drawn vehicles be limited to the
portion thereof extending from the railroad crossing
at Antipolo Street to Azcarraga Street; that on August
10, 1940, the Secretary of Public Works and
Communications, in his second indorsement
addressed to the Director of Public Works, approved
the recommendation of the latter that Rosario Street
and Rizal Avenue be closed to traffic of animal-
drawn vehicles, between the points and during the
hours as above indicated, for a period of one year
from the date of the opening of the Colgante Bridge
to traffic; that the Mayor of Manila and the Acting
Chief of Police of Manila have enforced and caused
to be enforced the rules and regulations thus adopted;
that as a consequence of such enforcement, all
animal-drawn vehicles are not now allowed to pass
and pick up passengers in the places above-
mentioned to the detriment not only of their owners
but of the riding public as well.
It is contended by the petitioner that Commonwealth
Act No. 548 by which the Director of Public Works,
with the approval of the Secretary of Public Works
and Communications, is authorized to promulgate
rules and regulations for the regulation and control of
the use of and traffic on national roads and streets is
unconstitutional because it constitutes an undue
delegation of legislative power. This contention is
untenable. As was observed by this court in Rubi vs.
Provincial Board of Mindoro (39 Phil, 660, 700),
"The rule has nowhere been better stated than in the
early Ohio case decided by Judge Ranney, and since
followed in a multitude of cases, namely: 'The true
distinction therefore is between the delegation of
power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be
made.' (Cincinnati, W. & Z. R. Co. vs. Comm'rs.
Clinton County, 1 Ohio St., 88.) Discretion, as held
by Chief Justice Marshall in Wayman vs. Southard
(10 Wheat., 1) may be committed by the Legislature
to an executive department or official. The
Legislature may make decisions of executive
departments or subordinate officials thereof, to whom
it has committed the execution of certain acts, final
on questions of fact. (U. S. vs. Kinkead, 248 Fed.,
141.) The growing tendency in the decisions is to
give prominence to the 'necessity' of the case."
Section 1 of Commonwealth Act No. 548 reads as
follows:
"Section 1. To promote safe transit upon, and avoid
obstructions on, roads and streets designated as
national roads by acts of the National Assembly or by
executive orders of the President of the Philippines,
the Director of Public Works, with the approval of
the Secretary of Public Works and Communications,
shall promulgate the necessary rules and regulations
to regulate and control the use of and traffic on such
roads and streets. Such rules and regulations, with the
approval of the President, may contain provisions
controlling or regulating the construction of buildings
or other structures within a reasonable distance from
along the national roads. Such roads may be
temporarily closed to any or all classes of traffic by
the Director of Public Works and his duly authorized
representatives whenever the condition of the road or
the traffic thereon makes such action necessary or
advisable in the public convenience and interest, or
for a specified period, with the approval of the
Secretary of Public Works and Communications."
The above provisions of law do not confer legislative
pOwer upon the Director of Public Works and the
Secretary of Public Works and Communications. The
authority therein conferred upon them and under
which they promulgated the rules and regulations
now complained of is not to determine what public
policy demands but merely to carry out the legislative
policy laid down by the National Assembly in said
Act, to wit, "to promote safe transit upon and avoid
obstructions on, roads and streets designated as
national roads by acts of the National Assembly or by
executive orders of the President of the Philippines"
and to close them temporarily to any or all classes of
traffic "whenever the condition of the road or the
trafh'c makes such action necessary or advisable in
the public convenience and interest."-/ The delegated
power, if at all, therefore, is not the determination of
what the law shall be, but merely the ascertainment
of the facts and circumstances upon which the
application of said law is to be predicated. To
promulgate rules and regulations on the use of
national roads and to determine when and how long a
national road should be closed to traffic, in view of
the condition of the road or the traffic thereon and the
requirements of public convenience and interest, is an
administrative function which cannot be directly
discharged by the National Assembly. It must depend
on the discretion of some other government official
to whom is confided the duty of determining whether
the proper occasion exists for executing the law. But
it cannot be said that the exercise of such discretion is
the making of the law. As was said in Locke's Appeal
(72 Pa. 491) : "To assert that a law is less than a law,
because it is made to depend on a future event or act,
is to rob the Legislature of the power to act wisely for
the public welfare whenever a law is passed relating
to a state of affairs not yet developed, or to things
future and impossible to fully know." The proper
distinction the court said was this: "The Legislature
cannot delegate its power to make the law; but it can
make a law to delegate a power to determine some
fact or state of things upon which the law makes, or
intends to make, its own action depend. To deny this
would be to stop the wheels of government. There are
many things upon which wise and useful legislation
must depend which cannot be known to the law-
making power, and, must, therefore, be a subject of
inquiry and determination outside of the halls of
legislation." (Field v. Clark, 143 U. S. 649, 694; 36
L. Ed. 294.)
In the case of People vs. Rosenthal and Osmeiia, G.
it. Nos. 46076 and 46077, promulgated June 12,
1939, and in Pangasinan Transportation vs. The
Public Service Commission, G. R. No. 47065,
promulgated June 26, 1940, this Court had occasion
to observe that the principle of separation of powers
has been made to adapt itself to the complexities of
modern governments, giving rise to the adoption,
within certain limits, of the principle of "subordinate
legislation," not only in the United States and
England but in practically all modern governments.
Accordingly, with the growing complexity of modern
life, the multiplication of the subjects of
governmental regulations, and the increased
difficulty of administering the laws, the rigidity of the
theory of separation of governmental powers has, to a
large extent, been relaxed by permitting the
delegation of greater powers by the legislative and
vesting a larger amount of discretion in
administrative and executive officials, not only in the
execution of the laws, but also in the promulgation of
certain rules and regulations calculated to promote
public interest.
The petitioner further contends that the rules and
regulations promulgated by the respondents pursuant
to the provisions of Commonwealth Act No. 548
constitute an unlawful interference with legitimate
business or trade and abridge the right to personal
liberty and freedom of locomotion. Commonwealth
Act No. 548 was passed by the National Assembly in
the exercise of the paramount police power of the
state.
Said Act, by virtue of which the rules and regulations
icomplained of were promulgated, aims to promote
safe 'transit upon_and avoid obstructions on national
roads, in the interest and convenience of the public.
In enacting said law, therefore, the National
Assembly was prompted by considerations of public
convenience and welfare. It was inspired by a desire
to relieve congestion of traffic. which is, to say the
least, a menace to public safety. Public welfare, then,
lies at_ the bottom of the enactment of said law, and
the state in order to promote the general welfare may
interfere with personal liberty, with property, and
with business and occupations. Persons and property
may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort,
health, and prosperity.,piJlje_state (U. S. vs. Gomez
Jesus, 31 Phil., 218). To this fundamental aim of our
Government the rights of the individual are
subordinated. Liberty is a blessing without which life
is a misery, but liberty should not be made to prevail
over authority because then society will fall into
anarchy. Neither should authority be made to prevail
over liberty because then the individual will fall into
slavery. The citizen should achieve the required
balance of liberty and authority in his mind through
education and personal discipline, so that there may
be established the resultant equilibrium, which means
peace and order and happiness for all. The moment paramount objective of the state of promoting the
greater authority is conferred upon the government, health, comfort, and quiet of all persons, and of
logically so much is withdrawn from the residuum of bringing about "the greatest good to the greatest
liberty which resides in the people. The paradox lies number."
in the fact that the apparent curtailment of liberty is
precisely the very means of insuring its preservation. In view of the foregoing, the writ of prohibition
prayed for is hereby denied, with costs against the
The scope of police power keeps expanding as petitioner. So ordered.
civilization advances. As was said in the case of
Dobbins vs. Los Angeles (195 U. S. 223, 238; 49 L. Avanceña, C.J., Imperial, Diaz, and Horrilleno,
ed. 169), "the right to exercise the police power is a JJ., concur.
continuing one, and a business lawful today may in
the future, because of the changed situation, the Writ denied.
growth of population or other causes, become a
menace to the public health and welfare, and be
required to yield to the public good." And in People
G.R. No. 83896 February 22, 1991
vs. Pomar (46 Phil., 440), it was observed that
"advancing civilization is bringing within the police CIVIL LIBERTIES UNION, petitioner,
power of the state today things which were not vs.
thought of as being within such power yesterday. The THE EXECUTIVE SECRETARY, respondent.
development of civilization, the rapidly increasing
population, the growth of public opinion, with an G.R. No. 83815 February 22, 1991
increasing desire on the part of the masses and of the
ANTI-GRAFT LEAGUE OF THE
government to look after and care for the interests of
PHILIPPINES, INC. and CRISPIN T.
the individuals of the state, have brought within the
REYES, petitioners,
police power many questions for regulation which
vs.
formerly were not so considered."
PHILIP ELLA C. JUICO, as Secretary of
Agrarian Reform; CARLOS DOMINGUEZ, as
The petitioner finally avers that the rules and
Secretary of Agriculture; LOURDES
regulations complained of infringe upon the
QUISUMBING, as Secretary of Education,
constitutional precept regarding the promotion of
Culture and Sports; FULGENCIO FACTORAN,
social justice to insure the well-bring and economic
JR., as Secretary of Environment and Natural
security of all the people. The promotion of social
Resources; VICENTE V. JAYME, as Secretary of
justice, however, is to be achieved not through a
Finance; SEDFREY ORDOÑEZ, as Secretary of
mistaken sympathy towards any given group. Social
Justice; FRANKLIN N. DRILON, as Secretary of
justice is "neither communism, nor despotism, nor
Labor and Employment; LUIS SANTOS, as
atomism, nor anarchy," but the humanization of laws
Secretary of Local Government; FIDEL V.
and the equalization of social and economic forces by
RAMOS, as Secretary of National Defense;
the State so that justice in its rational and objectively
TEODORO F. BENIGNO, as Press Secretary;
secular conception may at least be approximated.
JUANITO FERRER, as Secretary of Public
Social justice means the promotion of the welfare of
Works and Highways; ANTONIO ARRIZABAL,
ill the people, the adoption by the Government of
as Secretary of Science and Technology; JOSE
measures calculated to insure economic stability of
CONCEPCION, as Secretary of Trade and
all the competent elements of society, through the
Industry; JOSE ANTONIO GONZALEZ, as
maintenance of a proper economic and social
Secretary of Tourism; ALFREDO R.A.
equilibrium in the interrelations of the members of
BENGZON, as Secretary of Health; REINERIO
the community, constitutionally, through the adoption
D. REYES, as Secretary of Transportation and
of measures legally justifiable, or extra-
Communication; GUILLERMO CARAGUE, as
constitutionally, through the exercise of rowers
Commissioner of the Budget; and SOLITA
underlying the existence of all governments on th$
MONSOD, as Head of the National Economic
time-honored principle of salus populi est suprema
Development Authority, respondents.
lex.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R.
Social justice, therefore, must be founded on the Quintos and Juan T. David for petitioners in 83896.
recognition of the necessity of interdependence Antonio P. Coronel for petitioners in 83815.
among divers and diverse units of a society and of the
protection that should be equally and evenly extended
to all groups as a combined force in our social and
economic life, consistent with the fundamental and
FERNAN, C.J.:p
These two (2) petitions were consolidated per
resolution dated August 9, 19881 and are being
resolved jointly as both seek a declaration of the
unconstitutionality of Executive Order No. 284
issued 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.
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, 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.
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.
838153 and as Annex "B" in G.R. No. 838964 from
holding any other office or employment during their
tenure. In addition to seeking a declaration of the
unconstitutionality of Executive Order No. 284,
petitioner Anti-Graft League of the Philippines
further seeks in G.R. No. 83815 the issuance of 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, dual 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 Ordoñez, 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
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 VII and 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 19879 and DOJ Opinion No. 155, series
of 1988,10 being the first official construction and
interpretation by the Secretary of Justice of Section
13, Article VII and par. (2) of Section 7, Article I-XB
of the Constitution, involving the same subject 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
the holding 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 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.
Petitioners further argue that the exception to the
prohibition in Section 7, par. (2), Article I-XB on the
Civil Service Commission applies to officers and
employees of the Civil Service in general and that
said exceptions do not apply and cannot be extended
to Section 13, Article VII which 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 for appointive 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 a Constitution should bear in mind the
object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied.
A doubtful provision will be examined in the light of
the history of the times, and the condition and
circumstances under which the Constitution was
framed. The 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
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 created by 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 in reaction to
the published report of the Commission on Audit,
entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations,
Self-Governing Boards and Commissions" which
carried as its Figure No. 4 a "Roaster of Membership
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. Roño of twelve (12) each; Manuel P. Alba,
Gilberto O. Teodoro, and Edgardo Tordesillas of
eleven (11) each; and Lilia Bautista and Teodoro Q.
Peña 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 the people 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
Constitutional 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 or employment 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 official 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 or employment. 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 of his position, no
appointive official shall hold any other office or
employment in the Government."
It is quite notable that in all these provisions on
disqualifications to hold other office or employment,
the prohibition pertains to an office or 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
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 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 floor deliberations and
debate that there was no symmetry between the Civil
Service prohibitions, originally found in the General
Provisions and the anticipated report on the
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 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.
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 Such absurd consequence can be
avoided only by interpreting the 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 bearing on a particular
subject should be considered and interpreted together
as to effectuate the whole purpose of the
Constitution18 and one section is not to be allowed to
defeat another, if by any reasonable construction, the
two can be made to stand together.19
In other words, the court must harmonize them, if
practicable, and must lean in favor of a 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,
their deputies and assistants with respect to holding
multiple offices or employment in the government
during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so
that it must be understood as intended to be a positive
and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily,
wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a
positive and unequivocal negation.21 The phrase
"unless otherwise provided in this Constitution" must
be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to
wit: the Vice-President being appointed as 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-officiomember 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 capacity as provided by
law and as required22 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.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.24 Neither can their respective
undersecretaries and assistant 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 absurd consequences, 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 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.28 To
illustrate, by express provision of law, the Secretary
of Transportation and Communications is the ex-
officioChairman 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 sit ex-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 new appointments 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
and Communications acting as Chairman of the
Maritime Industry Authority34 and 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 cabinet 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 and implementing laws affecting
national interest and general 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 control 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
this exception is by virtue of Section 7, par. (2) of
Article I-XB. This colloquy between the two
Commissioners took place in the plenary session of
September 27, 1986. 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 reformatting and
"styling" by the Committee on Style that said Section
3 of the General Provisions became Section 7, par.
(2) of Article IX-B and reworded "Unless otherwise
allowed by law or by the primary functions of his
position. . . ."
What was clearly being discussed then were general
principles which would serve as constitutional
guidelines in the absence of specific constitutional
provisions on the matter. What was primarily at issue
and approved on that occasion was the adoption of
the qualified and delimited phrase "primary
functions" as the basis of an exception to the general
rule covering all appointive public officials. Had the
Constitutional Commission intended to dilute the
specific prohibition in said Section 13 of Article VII,
it could have re-worded said Section 13 to conform to
the wider exceptions provided in then Section 3 of
the proposed general Provisions, later placed as
Section 7, par. (2) of Article IX-B on the Civil
Service Commission.
That this exception would in the final analysis apply
also to the President and his official family is by
reason of the legal principles governing additional
functions and duties of public officials rather than by
virtue of Section 7, par. 2, Article IX-B At any rate,
we have made it clear that only the additional
functions and duties "required," as opposed to
"allowed," by the primary functions may be
considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult
the debates and proceedings of the constitutional
convention in order to arrive at the reason and
purpose of the resulting Constitution, resort thereto
may be had only when other guides fail42 as said
proceedings are powerless to vary the terms of the
Constitution when the meaning is
clear.1âwphi1Debates in the constitutional
convention "are of value as showing the views of the
individual members, and as indicating the reasons for
their votes, but they give us no light as to the views
of the large majority who did not talk, much less of
the mass of our fellow citizens whose votes at the
polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution
from what appears upon its face."43 The proper
interpretation therefore depends more on how it was
understood by the people adopting it than in the
framers's understanding thereof.44
It being clear, as it was in fact one of its best selling
points, that the 1987 Constitution seeks to 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. He should be
precluded from dissipating his efforts, attention and
energy among too many positions of responsibility,
which may result in haphazardness and inefficiency.
Surely the advantages to be derived from this
concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that
may be gained from a department head spreading
himself too thin and taking in more than what he can
handle.
Finding Executive Order No. 284 to be
constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural
Resources Fulgencio Factoran, Jr., Secretary of Local
Government45 Luis Santos, Secretary of National
Defense Fidel V. Ramos, Secretary of Health Alfredo
R.A. 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.

During their tenure in the questioned positions,

respondents may be considered de facto officers and
as such entitled to emoluments for actual services
rendered.46 It has been held that "in 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. This
doctrine is, undoubtedly, supported on equitable
grounds since it seems unjust that the public should
benefit by the services of an officer de facto and then
be freed from all liability to pay any one for such
services.47 Any per diem, allowances or other
emoluments received by the respondents by virtue of
actual services rendered in the questioned positions
may therefore be retained by them.

WHEREFORE, subject to the qualification above-

stated, the petitions are GRANTED. Executive Order
No. 284 is hereby declared null and void and is
accordingly set aside.

SO ORDERED.