CONSTITUTIONAL/POLITICAL LAW BLOG FOR THE FIRST YEAR: August 2012

Saturday, August 25, 2012

"Legal standing" means a personal and substantial interest

G.R. No. 96541 August 24, 1993

DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION REYNA, PROF. RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN CRISTOBAL, INGRID SANTAMARIA, CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R. JACELA, JR., MAURO MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA, SUSANO GONZALES, STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS, ANG KIU KOK, KERIMA POLOTAN, LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO, LIWAYWAY A. ARCEO, CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA L. HARPER, ROSALINDA OROSA, SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON NAVARRO, MANDY NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG, and PAZ VETO PLANAS, petitioners,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO MACARAIG, JR., in his official capacity, and/or the Executive Secretary, and CHAIRMAN MATEO A.T. CAPARAS, respondents.

M.M. Lazaro & Associates for petitioners.

The Solicitor General for respondents.

BELLOSILLO, J.:

All thirty-five (35) petitioners in this Special Civil Action for Prohibition and Mandamus with Prayer for Preliminary Injunction and/or Restraining Order seek to enjoin the Presidential Commission on Good Government (PCGG) from proceeding with the auction sale scheduled on 11 January 1991 by Christie's of New York of the Old Masters Paintings and 18th and 19th century silverware seized from Malacañang and the Metropolitan Museum of Manila and placed in the custody of the Central Bank.

The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of PCGG, wrote then President Corazon C. Aquino, requesting her for authority to sign the proposed Consignment Agreement between the Republic of the Philippines through PCGG and Christie, Manson and Woods International, Inc. (Christie's of New York, or CHRISTIE'S) concerning the scheduled sale on 11 January 1991 of eighty-two (82) Old Masters Paintings and antique silverware seized from Malacañang and the Metropolitan Museum of Manila alleged to be part of the ill-gotten wealth of the late President Marcos, his relatives and cronies.

On 14 August 1990, then President Aquino, through former Executive Secretary Catalino Macaraig, Jr., authorized Chairman Caparas to sign the Consignment Agreement allowing Christie's of New York to auction off the subject art pieces for and in behalf of the Republic of the Philippines.

On 15 August 1990, PCGG, through Chairman Caparas, representing the Government of the Republic of the Philippines, signed the Consignment Agreement with Christie's of New York. According to the agreement, PCGG shall consign to CHRISTIE'S for sale at public auction the eighty-two (82) Old Masters Paintings then found at the Metropolitan Museum of Manila as well as the silverware contained in seventy-one (71) cartons in the custody of the Central Bank of the Philippines, and such other property as may subsequently be identified by PCGG and accepted by CHRISTIE'S to be subject to the provisions of the agreement.¹

On 26 October 1990, the Commission on Audit (COA) through then Chairman Eufemio C. Domingo submitted to President Aquino the audit findings and observations of COA on the Consignment Agreement of 15 August 1990 to the effect that: (a) the authority of former PCGG Chairman Caparas to enter into the Consignment Agreement was of doubtful legality; (b) the contract was highly disadvantageous to the government; (c) PCGG had a poor track record in asset disposal by auction in the U.S.; and, (d) the assets subject of auction were historical relics and had cultural significance, hence, their disposal was prohibited by law. ²

On 15 November 1990, PCGG through its new Chairman David M. Castro, wrote President Aquino defending the Consignment Agreement and refuting the allegations of COA Chairman Domingo.³ On the same date, Director of National Museum Gabriel S. Casal issued a certification that the items subject of the Consignment Agreement did not fall within the classification of protected cultural properties and did not specifically qualify as part of the Filipino cultural heritage.⁴ Hence, this petition originally filed on 7 January 1991 by Dean Jose Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M. Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid Santamaria, Corazon Fiel, Ambassador E. Aguilar Cruz, Florencio R. Jacela, Jr., Mauro Malang, Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano Gonzales, Steve Santos, Ephraim Samson, Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia Kasilag, Ligaya David Perez, Virgilio Almario and Liwayway A. Arceo.

After the oral arguments of the parties on 9 January 1991, we issued immediately our resolution denying the application for preliminary injunction to restrain the scheduled sale of the artworks on the ground that petitioners had not presented a clear legal right to a restraining order and that proper parties had not been impleaded.

On 11 January 1991, the sale at public auction proceeded as scheduled and the proceeds of $13,302,604.86 were turned over to the Bureau of Treasury.⁵

On 5 February 1991, on motion of petitioners, the following were joined as additional petitioners: Charito Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda Orosa, Susan Carlo Medina, Patricia Ruiz, Bonnie Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang and Paz Veto Planas.

On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive Secretary, the incumbent Executive Secretary, and Chairman Mateo A.T. Caparas were impleaded as additional respondents.

Petitioners raise the following issues: (a) whether petitioners have legal standing to file the instant petition; (b) whether the Old Masters Paintings and antique silverware are embraced in the phrase "cultural treasure of the nation" which is under the protection of the state pursuant to the 1987 Constitution and/or "cultural properties" contemplated under R.A. 4846, otherwise known as "The Cultural Properties Preservation and Protection Act;" (c) whether the paintings and silverware are properties of public dominion on which can be disposed of through the joint concurrence of the President and Congress;
(d) whether respondent, PCGG has the jurisdiction and authority to enter into an agreement with Christie's of New York for the sale of the artworks; (e) whether, PCGG has complied with the due process clause and other statutory requirements for the exportation and sale of the subject items; and, (f) whether the petition has become moot and academic, and if so, whether the above issues warrant resolution from this Court.

The issues being interrelated, they will be discussed jointly hereunder. However, before proceeding, we wish to emphasize that we admire and commend petitioners' zealous concern to keep and preserve within the country great works of art by well-known old masters. Indeed, the value of art cannot be gainsaid. For, by serving as a creative medium through which man can express his innermost thoughts and unbridled emotions while, at the same time, reflecting his deep-seated ideals, art has become a true expression of beauty, joy, and life itself. Such artistic creations give us insights into the artists' cultural heritage — the historic past of the nation and the era to which they belong — in their triumphant, glorious, as well as troubled and turbulent years. It must be for this reason that the framers of the 1987 Constitution mandated in Art. XIV, Sec. 14, that is the solemn duty of the state to "foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression." And, in urging this Court to grant their petition, petitioners invoke this policy of the state on the protection of the arts.

But, the altruistic and noble purpose of the petition notwithstanding, there is that basic legal question which must first be resolved: whether the instant petition complies with the legal requisites for this Court to exercise its power of judicial review over this case.

The rule is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: that the question must be raised by the proper party; that there must be an actual case or controversy; that the question must be raised at the earliest possible opportunity; and, that the decision on the constitutional or legal question must be necessary to the determination of the case itself.⁶ But the most important are the first two (2) requisites.

On the first requisite, we have held that one having no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff in an
action.⁷ This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every action must be prosecuted and defended in the name of the real party-in-interest, and that all persons having interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.⁸ Moreover, the interest of the party plaintiff must be personal and not one based on a desire to vindicate the constitutional right of some third and related party. ⁹

There are certain instances however when this Court has allowed exceptions to the rule on legal standing, as when a citizen brings a case for mandamus to procure the enforcement of a public duty for the fulfillment of a public right recognized by the Constitution, ¹⁰ and when a taxpayer questions the validity of a governmental act authorizing the disbursement of public funds. ¹¹

Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with the preservation and protection of the country's artistic wealth, they have the legal personality to restrain respondents Executive Secretary and PCGG from acting contrary to their public duty to conserve the artistic creations as mandated by the 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts and Culture, and R.A. 4846 known as "The Cultural Properties Preservation and Protection Act," governing the preservation and disposition of national and important cultural properties. Petitioners also anchor their case on the premise that the paintings and silverware are public properties collectively owned by them and by the people in general to view and enjoy as great works of art. They allege that with the unauthorized act of PCGG in selling the art pieces, petitioners have been deprived of their right to public property without due process of law in violation of the Constitution. ¹²

Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They themselves allege that the paintings were donated by private persons from different parts of the world to the Metropolitan Museum of Manila Foundation, which is a non-profit and non-stock corporations established to promote non-Philippine arts. The foundation's chairman was former First Lady Imelda R. Marcos, while its president was Bienvenido R. Tantoco. On this basis, the ownership of these paintings legally belongs to the foundation or corporation or the members thereof, although the public has been given the opportunity to view and appreciate these paintings when they were placed on exhibit.

Similarly, as alleged in the petition, the pieces of antique silverware were given to the Marcos couple as gifts from friends and dignitaries from foreign countries on their silver wedding and anniversary, an occasion personal to them. When the Marcos administration was toppled by the revolutionary government, these paintings and silverware were taken from Malacañang and the Metropolitan Museum of Manila and transferred to the Central Bank Museum. The confiscation of these properties by the Aquino administration however should not be understood to mean that the ownership of these paintings has automatically passed on the government without complying with constitutional and statutory requirements of due process and just compensation. If these properties were already acquired by the government, any constitutional or statutory defect in their acquisition and their subsequent disposition must be raised only by the proper parties — the true owners thereof — whose authority to recover emanates from their proprietary rights which are protected by statutes and the Constitution. Having failed to show that they are the legal owners of the artworks or that the valued pieces have become publicly owned, petitioners do not possess any clear legal right whatsoever to question their alleged unauthorized disposition.

Further, although this action is also one of mandamus filed by concerned citizens, it does not fulfill the criteria for a mandamus suit. In Legaspi v. Civil Service Commission, ¹³ this Court laid down the rule that a writ of mandamus may be issued to a citizen only when the public right to be enforced and the concomitant duty of the state are unequivocably set forth in the Constitution. In the case at bar, petitioners are not after the fulfillment of a positive duty required of respondent officials under the 1987 Constitution. What they seek is the enjoining of an official act because it is constitutionally infirmed. Moreover, petitioners' claim for the continued enjoyment and appreciation by the public of the artworks is at most a privilege and is unenforceable as a constitutional right in this action for mandamus.

Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a taxpayer can qualify to challenge the legality of official acts done by the government. A taxpayer's suit can prosper only if the governmental acts being questioned involve disbursement of public funds upon the theory that the expenditure of public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes a misapplication of such funds, which may be enjoined at the request of a taxpayer. ¹⁴ Obviously, petitioners are not challenging any expenditure involving public funds but the disposition of what they allege to be public properties. It is worthy to note that petitioners admit that the paintings and antique silverware were acquired from private sources and not with public money.

Anent the second requisite of actual controversy, petitioners argue that this case should be resolved by this Court as an exception to the rule on moot and academic cases; that although the sale of the paintings and silver has long been consummated and the possibility of retrieving the treasure trove is nil, yet the novelty and importance of the issues raised by the petition deserve this Court's attention. They submit that the resolution by the Court of the issues in this case will establish future guiding principles and doctrines on the preservation of the nation's priceless artistic and cultural possessions for the benefit of the public as a whole. ¹⁵

For a court to exercise its power of adjudication, there must be an actual case of controversy — one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. ¹⁶ A case becomes moot and academic when its purpose has become stale, ¹⁷ such as the case before us. Since the purpose of this petition for prohibition is to enjoin respondent public officials from holding the auction sale of the artworks on a particular date — 11 January 1991 — which is long past, the issues raised in the petition have become moot and academic.

At this point, however, we need to emphasize that this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an actual case or legal standing when paramount public interest is involved. ¹⁸ We find however that there is no such justification in the petition at bar to warrant the relaxation of the rule.

Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of the state to preserve and protect the important cultural properties and national cultural treasures of the nation and to safeguard their intrinsic value. As to what kind of artistic and cultural properties are considered by the State as involving public interest which should therefore be protected, the answer can be gleaned from reading of the reasons behind the enactment of R.A. 4846:

WHEREAS, the National Museum has the difficult task, under existing laws and regulations, of preserving and protecting the cultural properties of the nation;

WHEREAS, inumerable sites all over the country have since been excavated for cultural relics, which have passed on to private hands, representing priceless cultural treasure that properly belongs to the Filipino people as their heritage;

WHEREAS, it is perhaps impossible now to find an area in the Philippines, whether government or private property, which has not been disturbed by commercially-minded diggers and collectors, literally destroying part of our historic past;

WHEREAS, because of this the Philippines has been charged as incapable of preserving and protecting her cultural legacies;

WHEREAS, the commercialization of Philippine relics from the contact period, the Neolithic Age, and the Paleolithic Age, has reached a point perilously placing beyond reach of savants the study and reconstruction of Philippine prehistory; and

WHEREAS, it is believed that more stringent regulation on movement and a limited form of registration of important cultural properties and of designated national cultural treasures is necessary, and that regardless of the item, any cultural property exported or sold locally must be registered with the National Museum to control the deplorable situation regarding our national cultural properties and to implement the Cultural Properties Law (emphasis supplied).

Clearly, the cultural properties of the nation which shall be under the protection of the state are classified as the "important cultural properties" and the "national cultural treasures." "Important cultural properties" are cultural properties which have been singled out from among the innumerable cultural properties as having exceptional historical cultural significance to the Philippines but are not sufficiently outstanding to merit the classification of national cultural treasures. ¹⁹ On the other hand, a "national cultural treasures" is a unique object found locally, possessing outstanding historical, cultural, artistic and/or scientific value which is highly significant and important to this country and nation. ²⁰ This Court takes note of the certification issued by the Director of the Museum that the Italian paintings and silverware subject of this petition do not constitute protected cultural properties and are not among those listed in the Cultural Properties Register of the National Museum.

We agree with the certification of the Director of the Museum. Under the law, it is the Director of the Museum who is authorized to undertake the inventory, registration, designation or classification, with the aid of competent experts, of important cultural properties and national cultural treasures. ²¹ Findings of administrative officials and agencies who have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence and are controlling on the reviewing authorities because of their acknowledged expertise in the fields of specialization to which they are assigned. ²²

In view of the foregoing, this Court finds no compelling reason to grant the petition. Petitioners have failed to show that respondents Executive Secretary and PCGG exercised their functions with grave abuse of discretion or in excess of their jurisdiction.

WHEREFORE, for lack of merit, the petition for prohibition and mandamus is DISMISSED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ., concur.

# Footnotes

1 Rollo, pp. 55-66.

2 Rollo, pp. 37-39.

3 Rollo, pp. 48-53.

4 Rollo, p. 186.

5 Ibid.

6 Cruz, Isagani A., Philippine Political Law, 1991 ed., p. 235; Dumlao v. Commission on Elections, G.R. No. L- 50245, 22 January 1980, 95 SCRA 392.

7 Sustiguer v. Tamayo, G.R. No. L-29341, 21 August 1989, 176 SCRA 579.

8 House International Building Tenants Association, Inc. v. Intermediate Appellate Court, G.R. No. L-75287, 30 June 1987, 151 SCRA 703.

9 Bernas, Joaquin B., The Constitution of the Republic of the Philippines, Vol. II, 1988 Ed., p. 279.

10 Tañada v. Tuvera, G.R. No. L- 63915, 24 April 1985, 136 SCRA 27; Legaspi v. Civil Service Commission, G.R. No. L- 72119, 29 May 1987, 150 SCRA 530.

11 Pascual v. Secretary of Public Works, 110 Phil 331 (1960).

12 Rollo, pp. 156-157.

13 G.R. No. L-72119, 29 May 1987, 150 SCRA 530.

14 Pascual v. Secretary of Public Works, 110 Phil 331 (1960).

15 Rollo, pp. 174-175.

16 See Note 6.

17 Manila Jockey Club, Inc. v. Montano Jr., G.R. No. L-24465, 28 February 1977, 75 SCRA 264.

18 Dumlao v. Comelec, G.R. No. L- 50245, 22 January 1980, 95 SCRA 392.

19 Sec. 2, par. b, R.A. 4846, as amended.

20 Sec. 3, par. c, R.A. 4846, as amended.

21 Id., Secs. 5-7.

22 Biak-na-Bato Mining Company v. Tanco, Jr., G.R. Nos. L-34267-68, 25 January 1991, 193 SCRA 323.

What we see here is a debate on the wisdom or the efficacy of the Act

G.R. No. 100883 December 2, 1991

CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner,
vs.
THE EXECUTIVE SECRETARY, THE NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, THE BOARD OF INVESTMENTS, THE SECURITIES AND EXCHANGE COMMISSION, and THE BUREAU OF TRADE REGULATION AND CONSUMER PROTECTION, respondents.

Senator VICENTE T. PATERNO and PHILIPPINE ASSOCIATION OF BATTERY MANUFACTURERS, intervenors.

Abraham C. La Vina for petitioner.

Padilla, Jimenez, Kintanar and Asuncion Law Firm for PABMA.

Demaree J.B. Raval and Jhosep Y. Lopez for Sen. V. Paterno

CRUZ, J.:p

The petitioner challenges RA 7042 on the ground that it defeats the constitutional policy of developing a self-reliant and independent national economy effectively controlled by Filipinos and the protection of Filipino enterprises against unfair foreign competition and trade practices. He claims that the law abdicates all regulation of foreign enterprises in this country and gives them unfair advantages over local investments which are practically elbowed out in their own land with the complicity of their own government.

Specifically, he argues that under Section 5 of the said law a foreign investor may do business in the Philippines or invest in a domestic enterprise up to 100% of its capital without need of prior approval. All that it has to do is register with the Securities and Exchange Commission or the Bureau of Trade Regulation and Consumer Protection in the case of a single proprietorship. The said section makes certain that "the SEC or BTRCP, as the case may be, shall not impose any limitations on the extent of foreign ownership in an enterprise additional to those provided in this Act."

Furthermore, Section 7 provides that "non-Philippine nationals may own up to one hundred percent (100%) of domestic market enterprises unless foreign ownership therein is prohibited or limited by existing law or the Foreign Investment Negative List under Section 8 hereof." The provision for a Foreign Investment Negative List in Section 8 does not satisfy the constitutional mandate for the government to regulate and exercise authority over foreign investments. The system of negative list abandons the positive aspect of regulation and exercise of authority over foreign investments. In effect, it assumes that so long as foreign investments are not in areas covered by the list, such investments are not detrimental to but are good for the national economy.

The petitioner attacks List A as not a true negative list in the strict sense of the term. It would merely enumerate areas of activities already reserved to Philippine nationals by mandate of the Constitution and specific laws. List B would contain areas of activities and enterprises already regulated according to law and includes small and medium-sized domestic market enterprises or export enterprises which utilize raw materials from depleting natural resources with paid-in equity capital of less than the equivalent of US$500,000.00. In other words, "small to medium" are reserved to Philippine nationals; in effect Filipinos are not encouraged to go big. List C would merely contain areas of investment m which "existing enterprises already serve adequately the needs of the economy and the consumers and do not need further foreign investments." The category of "existing enterprises" should be qualified by the term "Filipino." Otherwise, List C would protect existing foreign enterprises as well.

The petitioner also attacks Section 9 because if a Philippine national believes that an area of investment should be included in list C, the burden is on him to show that the criteria enumerated in said section are met.

It is alleged that Articles 2, 32, & 35 of the Omnibus Investments Code of 1982 are done away with by RA 7042. It is also argued that by repealing Articles 49, 50, 54 and 56 of the 1987 Omnibus Investments Code, RA No. 7042 further abandons the regulation of foreign investments by doing away with important requirements for doing business in the Philippines.

Finally, the petitioner claims that the transitory provisions of RA 7042, which allow practically unlimited entry of foreign investments for three years, subject only to a supposed Transitory Foreign Investment Negative List, not only completely deregulates foreign investments but would place Filipino enterprises at a fatal disadvantage in their own country.

In his Comment, the Solicitor General counters that the phrase "without need of prior approval" applies to equity restrictions alone. This is well explained by the fact that prior to the effectivity of RA 7042, Article 46 of the Omnibus Investments Code of 1987 (EO No. 226), provided that a non-Philippine national could, without need of prior authority from the Board of Investments (BOI), invest in: (1) any enterprise registered under Book I (Investments with Incentives); and (2) enterprises not registered under Book I, to the extent that the total investment of the non-Philippine national did not exceed 40% of the outstanding capital. On the other hand, under Article 47 thereof, if an investment by a non-Philippine nationals in an enterprise not registered under Book I was such that the total participation by non-Philippine nationals in the outstanding capital thereof exceeded 40%, prior authority from the BOI was required.

With the effectivity of RA 7042, a certain layer of bureaucracy has been removed, specifically, the case-to-case authorization by BOI. Furthermore, with the introduction of the Negative List under Sections 8 & 15, the areas of investments not open to foreign investors are already determined and outlined; hence, registration with the SEC or BTRCP, as the case may be, is now the initial step to be taken by foreign investors.

This registration constitutes regulation and exercise of authority over foreign investments. Under SEC and BTRCP rules and regulations, foreign investors must first comply with certain requirements before they can be issued a license to do business in the Philippines. The SEC has PD 902-A, as amended, and BP 68 for its governing laws. Pertinent provisions of these laws are contained in the SEC Licensing Procedure of Foreign Corporations. For BTRCP, the applicable laws are EO No. 133 in conjunction with EO No. 913.

Section 7 of RA 7042 allows non-Philippine nationals to own up to 100% of domestic market enterprises only in areas of investments outside the prohibitions and limitations imposed by law to protect Filipino ownership and interest. Furthermore, the Foreign Investment Negative List under Section 8 reserves to Filipinos sensitive areas of investments. List C prohibits foreign investors from engaging in areas of activities where existing enterprises already serve adequately the needs of the economy and the consumer.

The Act opens the door to foreign investments only after securing to Filipinos their rights and interests over the national economy.

The provisions of the Constitution and other specific laws (which would be used as a basis for List A) regulate or limit the extent of foreign ownership in enterprises engaged in areas of activity reserved for Filipinos. To insist otherwise would be tantamount to saying that those laws are useless and should therefore be erased from the statute books.

The fact that List B contains areas already regulated pursuant to law already makes it clear that it is regulatory. It channels efforts at promoting foreign investments to bigger enterprises where there is an acute lack of Filipino capital. However, this should not be construed as a scheme to discourage Filipino enterprises from going into big enterprises. On the contrary, the scheme is for foreign investments to supplement Filipino capital in big enterprises.

Activities which do not adequately meet-the needs of the consumers should not be included in list C so as to allow healthy competition. Otherwise, consumers would be at the mercy of unscrupulous producers. Foreign corporations already doing business in the Philippines under a valid license prior to the enactment of RA 7042 necessarily come within the protection of the law.

The Solicitor General adds that Section 9 provides for the criteria to be used by NEDA in determining the areas of investment for inclusion in List C. The petition for inclusion therein requires "a public hearing at which affected parties will have the opportunity to show whether the petitioner industry adequately serves the economy and the consumers." But this does not mean that the Act is shifting the burden of proof to Filipino enterprises while deregulating foreign investments at the same time. On the contrary, this provision is designed to protect the consumers as not all existing enterprises satisfy the criteria inclusion in List C. The requisite proof and public hearing under Section 9 are, therefore, necessary to prevent detriment to the economy and the consumers.

Regarding the alleged elimination of certain rules in the Code, the Solicitor General stresses that Section 16 of the provides that only "Articles forty-four (44) to fifty-six (56) Book II of EO No. 226 are repealed." The approval by the BOI and the other regulatory requirements set forth in the aforementioned articles were purposely removed because the determination of the areas of investment open to foreign investors is made easy by the Foreign Investment Negative List formulated and recommended by NEDA following the process and criteria provided in Sections 8 & 9 of the Act.

Concluding, he argues that the Transitory Foreign Investment Negative List is not imaginary. In fact, it practically includes the same areas of investment reserved to Filipino under Section 5. Moreover, during the transitory period, "SEC shall disallow registration of the applying non-Philippine national if the existing joint venture enterprises, particularly the Filipino partners therein, can reasonably prove they are capable to make the investment needed for the domestic market activities to be undertaken by the competing applicant."

Allowed to intervene, Senator Vicente T. Paterno,** raises substantially the same points stressed by the Solicitor General in defense of the Act and amplifies the argument that the Act does not deregulate foreign investments to the disadvantage of the Filipino entrepreneur. He discusses at length the different regulatory requirements for doing business in the Philippines and explains the over-all strategy embodied in the Act to develop a self-reliant economy, as well as the provisions designed to promote full employment for Filipinos. He also suggests that the constitutional challenge should be rejected outright for noncompliance with the requisites of a judicial inquiry into a constitutional question, to wit: (1) there must be an actual case or controversy; (2) the constitutional question must be raised by a proper party; (3) the constitutional question must be raised at the earliest opportunity; and (4) the resolution of the constitutional question must be necessary to the decision of the case. 1

The court has carefully gone over the petition and wryly observes that it could have been pruned and limited to the strictly legal principles involved in the interest of a speedier disposition of the case. A considerable portion of the petition, and this is also true of the reply (if not more so), sounds too much like speechifying that is better addressed to a political audience than to a court of justice. Much valuable time would have been saved in the presentation of a leaner, strictly legal tract.

Coming first to the procedural objections to the petition, we agree that there is at this point no actual case or controversy, particularly because of the absence of the implementing rules that are supposed to carry the Act into effect. A controversy must be one that is appropriate or "ripe" for determination, not conjectural or anticipatory. We hold, however, that the petitioner, as a citizen and taxpayer, and particularly as a member of the House of Representatives, comes under the definition that a proper party is one who has sustained or is in danger of sustaining an injury as a result of the act complained of. 2 We will also hold that the constitutional question has not been raised tardily but in fact, as just remarked, prematurely.

On the merits, we find that the constitutional challenge must be rejected for failure to show that there is an indubitable ground for it, not to say even a necessity to resolve it. The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.

In the case at bar, the law is challenged on broad constitutional principles and the proposition that the Filipino investor is unduly discriminated against in his own land. Due process is invoked. The provisions on nationalism are cited. Economic dependency is deplored. In the light, however, of the explanation given by the Solicitor General and of the Intervenor in their respective Comments, we hold that the cause of unconstitutionality has not been proved by the petitioner. On the contrary, we are satisfied that the Act does not violate any of the constitutional provisions the petitioner has mentioned.

What we see here is a debate on the wisdom or the efficacy of the Act, but this is a matter on which we are not competent to rule. As Cooley observed: "Debatable questions are for the legislature to decide. The courts do not sit to resolve the merits of conflicting issues." 3 In Angara v. Electoral Commission, 4 Justice Laurel made it clear that "the judiciary does not pass upon questions of wisdom, justice or expediency of legislation." And fittingly so for in the exercise of judicial power, we are allowed only "to settle actual controversies involving rights which are legally demandable and enforceable," 5 and may not annul an act of the political departments simply because we feel it is unwise or impractical. It is true that, under the expanded concept of the political question, we may now also "determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." 6 We find, however, that irregularity does not exist in the case at bar.

The petitioner is commended for his high civic spirit and his zeal in the protection of the Filipino investors against unfair foreign competition. His painstaking study and analysis of the Foreign Investments Act of 1991 reveals not only his nationalistic fervor but also an impressive grasp of this complex subject. But his views are expressed in the wrong forum. The Court is not a political arena. His objections to the law are better heard by his colleagues in the Congress of the Philippines, who have the power to rewrite it, if they so please, in the fashion he suggests.

WHEREFORE, the petition is DISMISSED, without any pronouncement as to costs. It is so ordered.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur.

Padilla, J., took no part.

Fernan, C.J., is on leave.

# Footnotes

** The Philippine Association of Battery Manufacturers was also allowed to intervene but merely supported the allegations and arguments of the petitioner.

1 Dumlao v. Commission on Elections, 95 SCRA 392.

2 Ex Parte Levitt, 303 U.S. 63.

3 Constitutional Limitations, 8th ed., 379-80.

4 63 Phil. 139.

5 Constitution, Art. VIII, Sec. 1

6 Ibid.

judicial inquiry 2

EN BANC

G.R. No. 102940 November 6, 1992

ADELPHA FERNANDEZ, MARISSA DOMINGO, EUNICE OFRECIA, ROSELYN MENDOZA, ARLENE CABALLERO, ALMIRA MIRANDA, and MARY CHRISTINE VALENTON, petitioners,
vs.
HON. RUBEN TORRES, SECRETARY OF LABOR and EMPLOYMENT and JOSE SARMIENTO, ADMINISTRATOR, PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION, respondents.

R E S O L U T I O N

FELICIANO, J.:

Petitioners Adelpha Fernandez, Marissa Domingo, Eunice Ofrecia, Roselyn Mendoza, Arlene Caballero, Almira Miranda and Mary Christine Valenton seek certiorari and prohibition to prohibit and restrain the Secretary of the Department of Labor and Employment ("DOLE") and the Administrator of the Philippine Overseas Employment Administration ("POEA") from enforcing and implementing Item No. 1 of DOLE Circular No. 01-91 dated 20 November 1991 entitled "Prescribing Additional Requirements, Conditions and Procedures for the Deployment of Performing Artists."

Item No. 1 of the assailed DOLE Circular provides as follows:

1. No Filipino entertainer shall be deployed outside the Philippines except for legitimate performing artists consisting of musicians, singers and members of dance troupes. In all cases, the performing artists must have a track record of legitimate and reputable performance in the Philippines for at least one year. In no case shall the performing artists be below 23 years old.

The Secretary of Labor and Employment may, for justifiable reasons, exempt performing artists from coverage hereof.

The promulgation of DOLE Circular No. 01-91 was preceded by public agitation (as reflected in the print media) for a total ban on deployment of Filipino entertainers abroad, in response to the growing number of documented reports and complaints from entertainers and their relatives about the exploitative working conditions, harassment, forcible detention, physical injuries, rape and even death suffered by female performing artists and entertainers abroad. Because a comprehensive prohibition of such deployment would visit obviously adverse economic consequences upon the entertainment industry, the First National Tripartite Conference for the Protection of Overseas Entertainers, attended by representatives from the Government and from the management and labor sectors of the entertainment community, was held last 18 November 1991. The Conference was convened to evaluate a Government proposal for a complete interdiction of overseas deployment of Philippine entertainers and performing artists. During this Conference, some of the problems facing Filipino entertainers (in particular, women entertainers) abroad were discussed openly: vulnerability to operations of organized crime syndicate abroad; subjection to white slavery; harsh and substandard working conditions; vulnerability to sexually transmitted diseases and unwanted pregnancies, and so forth. ¹ At the end of the Conference, the consensus among the management and labor representatives which emerged was that Government should adopt a policy of selective (rather than comprehensive) prohibition of deployment abroad of Philippine entertainers, to avoid the adverse effects which complete prohibition would impose on the country's manpower export program. The labor representative recommended that the minimum age for performing artists seeking overseas deployment be raised from eighteen (18) years to twenty-three (23) years. ²

In the present proceeding, petitioners allege themselves to be "qualified performing artists, mostly singers and dancers," of ages eighteen (18) to twenty-two (22) years. Through counsel, they challenge the constitutional validity of Item No. 1 of DOLE Circular No. 01-91 and their arguments may be condensed in the following manner:

(1) that Item No. 1 of DOLE Circular No. 01-91 is violative of the equal of the protection clause and the due process clause of the Constitution, and the state policy on protection of labor because Item No. 1 is arbitrary, oppressive and discriminatory against performing artists of ages eighteen (18) to twenty-two (22) who would otherwise be qualified for overseas employment; and

(2) that Item No. 1 of the mentioned DOLE Circular was promulgated by public respondent DOLE Secretary and POEA Administrator without or in excess of their jurisdiction or with grave abuse of discretion.

In actions involving constitutional issues, the firmly settled rule is that a constitutional question will not be heard and resolved by the courts unless the following requirements of judicial inquiry are met:

(1) the existence of an actual case or controversy;

(2) the party raising the constitutional issue must have a personal and substantial interest in the resolution thereof;

(3) the controversy must be raised at the earliest reasonable opportunity; and

(4) that the resolution of the constitutional issue must be indispensable for the final determination of the controversy. ³

Appraising the present proceeding in terms of the foregoing requirements, the Solicitor General urges that the Petition at bar does not present a justiciable controversy for having been filed prematurely:

. . . petitioners, who claim to be performing artists, had not previously applied with the Secretary of Labor for exemption from the coverage of the Circular in line with the aforequoted provision. Said provision connotes that the prohibition is not at all permanent or absolute. It admits of exception. . . . But to repeat, there is no allegation in the petition that petitioners had previously sought exemption from the Secretary of Labor, from the coverage of the Circular, before filing the instant petition. Obviously, the petition must fail for prematurity. ⁴

The Court agrees with the Solicitor General. We note in the first place, that Item No. 1 of the challenged DOLE Circular does not establish an absolute and comprehensive prohibition of deployment abroad of entertainers below twenty-three (23) years of age. Item No. 1 itself provides that "the Secretary of Labor and Employment may, for justifiable reasons, exempt from performing artists from coverage hereof." The discretionary authority here asserted by the DOLE Secretary does not purport to be unlimited and arbitrary in nature. To the contrary, fairly explicit and precisely drawn grounds for exempting particular performing artists from the coverage of Item No. 1 are set out in a set of "Administrative Guidelines Implementing Department Circular No. 01-91." ⁵

In the second place, petitioners have failed to allege or have refrained from alleging, that they had previously applied to public respondent officials for exemption from the minimum age restriction imposed by Item No. 1 of DOLE Circular No. 01-91. Necessarily, therefore, petitioners also do not allege that public respondent officials have arbitrarily denied their applications for exemption from the minimum age requirement or from any other requirement establishment by Item No. 1. Neither have petitioners alleged that public respondents have continually threatened to deny all and sundry applications for exemption, so as to create a reasonable expectation that their applications would be immediately and arbitrarily denied, should they in fact file them. Petitioners do assert that the exemption clause of DOLE Circular No. 01-91 is "practically useless and [constitutes] empty verbiage." They have not, however, attempted to support this assertion.

The Court is not compelled to indulge in speculation that public respondent would deny any and all applications for exemption from coverage of DOLE Circular No. 01-91. Two (2) important presumptions are here applicable. The first is that administrative orders and regulations are entitled to the presumption of constitutionality. ⁶ The second is that official duty has been or will be regularly performed. ⁷

In Philippine Association of Colleges and Universities v. Secretary of Education. 8 the petitioner universities and colleges challenged a regulation requiring all private educational institutions to secure a permit to operate from the Department of Education. The Court dismissed the Petition for being premature, after finding that the petitioners had in fact in their possession permits to operate and that the petition was filed for speculative or academic purposes upon the supposition that the petitioning institutions might be denied such permits, or have their permits withdrawn, at some future time. The Court held:

Mere apprehension that the Secretary of Education might under the law withdraw the permit of one of petitioners does not constitute a justiciable controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S.W. 2d. 771.)

An action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief. (Salonga vs. Warner Barnes, L-2245, January 1951). Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest therein, however intellectually solid the problem may be. This is specially true where the issues "reach constitutional dimensions, for then there comes into play regard for the court's duty to avoid decision of constitutional issues unless avoidance becomes evasion. (Rice vs. Sioux City, U.S. Sup. Ct. Adv. Rep., May 23, 1955, Law Ed., Vol. 99, p. 511). ⁹ (Emphasis supplied).

To engage in judicial review, under the facts and circumstances here obtained, in advance of official efforts to apply the provisions of the challenged circular, upon the supposition that petitioners' legal rights in the premises might be denied by public respondent officials, is too close to rendering an advisory opinion in a hypothetical case — an undertaking clearly beyond the jurisdiction of this Court. ¹⁰

We consider, therefore, that petitioners have failed to show the first requisite of a judicial inquiry, i.e., the existance of actual case or controversy. This failure renders unnecessary consideration of the other requisites of constitutional litigation.

ACCORDINGLY, for lack of a justiciable controversy, the Court Resolved to DISMISS the Petition for Certiorari and Prohibition. Costs against petitioners.

Padilla, Bidin, Regalado, Davide, Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.

Narvasa, C.J. and Medialdea, J., are on leave.

Separate Opinions

CRUZ, J., concurring:

I have said often enough that an unconstitutional measure should be slain on sight regardless of non-compliance with the established requisites of a judicial inquiry into a constitutional issue. But in so saying, I had in mind the clearly illegal act that should not be reprieved by procedural impediments to delay its inevitable annulment.

I see no such act in the case at bar. The questioned circular is at best of dubious validity, especially as it seems to offend the equal protection clause by laying down an age barrier that Justice Gutierrez finds arbitrary. I am not prepared at this time to share his conviction although I will say that I too have my doubts about the distinction.

I agree that at this point the Court should wait until an actual controversy is before it involving a justiciable issue ripe for judicial determination. Meanwhile, the petitioners should lay their case before the administrative authorities and give them a chance to re-examine their act and affirm or undo it. The policy we here pursue is based not only on sound practical considerate branch of the government.

There will be time enough to "make the hammer fall, and heavily," in Justice Laurel's words, if that be necessary. In my view, that time has not yet come.

GUTIERREZ, JR., J.: dissenting:

I find the age limitation in the questioned resolution arbitrary and discriminatory. There is no reasonable nexus between the requirement and the objective sought to be accomplished. I am constrained to dissent.

As stated by the petitioners, it has been the official policy and practice of the government for many years if not decades to authorize the overseas employment of performing artists, eighteen (18) years and above, provided they are qualified and have passed the auditions conducted by the Philippine Overseas Employment Administration (POEA). Every year, around 40,000 musicians, singers, and dancers go to Japan as performing artists. They allegedly contribute at least US$780,000,000.00 to our foreign exchange earnings not to mention the considerable relief they give to our serious unemployment and under-employment problems.

According to the petitioners, there are at least 500,000 persons and family members dependent on them for all or a significant part of their living expenses and who will also be prejudiced by the enforcement of the questioned Circular No. 01-91.

The issuance of Circular No. 01-91 was triggered by the unfortunate fate of a lady entertainer who died under suspicious circumstances in Japan, an alleged victim of exploitation and abuse. I cannot recall her age but to me it has absolutely no relevance to the cause of her death. The lady would have died whether she was 18, 23 or 35 years of age.

The public respondents have failed to do their job of properly regulating the placement activities of recruitment agencies. Instead of improving their work and ascertaining their shortcomings and glaring inadequacies, the public respondents try to placate an outspoken media and angry citizenry with an unreasonable regulation.

It may be noted that almost all victim of criminal syndicates and abusive employers in Japan went there as tourists and not as legitimate performing artists. The age of the victims has nothing to do with their exploitation. It is the absence of valid working visas, the failure to enter into government approved contracts with known employers, and the absence of any singing, dancing or entertainment talent which criminal elements in Japan manipulate as they victimize the illegal entrants. The Department of Labor and Employment is mandated to allow only legitimate performing artists to leave for employment abroad. It is supposed to screen the reputable and acceptable standards of performance of singers and dancers it allows to be deployed abroad. It maintain offices and personnel in Japan where entertainers can bring their problems freely because their presence in that country is legitimate and known to DOLE officials.

It is public knowledge that in none of the above functions has DOLE been half successful in its performance. Instead, it comes out with an unreasonable regulation which will kill the legitimate livelihoods of tens of thousands of genuine entertainers without really solving the problems of the illegal entrants and the unauthorized entertainers.

I find the challenged restriction arbitrary and unreasonable because it is not rationally related to the problem intended to be solved. It is not the age of the entertainers which causes them to be victimized but the clandestine nature of their departure from the Philippine and the illegality of their status as overstaying tourists or smuggled entrants in Japan, not to mention their lack of artistic talents or their having engaged in the sex trade in the Philippines and gone to Japan because the income is better.

Circular No. 01-91 aims to "provide continuing employment opportunities to legitimate Filipino performing artists abroad and to ensure their protection and welfare . . ." The key words are "continuing employment opportunities", "legitimate", "protection", and "welfare." The challenged age requirement will severely restrict employment opportunities. Instead of using an arbitrary cut-off age, the DOLE should concentrate on seeing to it that only "legitimate" or qualified performers will be deployed and, once they are abroad, to give them the mandated protection and welfare, adequate and dedicated instead of being lackluster and desultory.

The Challenged provision is discriminatory.

As stated by the petitioners, there is no reasonable standard or basis which allows a classification into 18-years old and 23-years old. An 18-year old woman can vote. A 21-year old woman is emancipated. From 18 to 23, a woman can look for a job and engage in gainful employment. Why one is forced to work only in the Philippines while the other may roam freely around the world has no reasonable basis. A psychological and maturity test in addition to effective screening of artistic abilities as an entertainer would be reasonable but not an arbitrary cut-off age.

With all due respect for the majority opinion which I find to be based more on theory than fact, the "justifiable reasons" which DOLE may use for exempting those below 23 from the ban are as illusory as its ability to regulate the proliferation of illegal recruiters and to extend protection or assistance to victims of abuses.

The other reasons used by the majority — a failure to allege certain matters — is to my mind unduly technical. Anyone dealing with administrative officials, especially the minor functionaries in charge of granting permits to work abroad, cannot be blamed for going immediately to Court to challenge an arbitrary regulation which effectively eliminates their livelihood.

I VOTE to GRANT the PETITION and to strike out the questioned regulation as an arbitrary infringement of liberty.

Griño-Aquino, J., concurs.

Separate Opinions

CRUZ, J., concurring:

There will be time enough to "make the hammer fall, and heavily," in Justice Laurel's words, if that be necessary. In my view, that time has not yet come.

GUTIERREZ, JR., J.: dissenting:

The Challenged provision is discriminatory.

I VOTE to GRANT the PETITION and to strike out the questioned regulation as an arbitrary infringement of liberty.

Griño-Aquino, J., concurs.
Footnotes

1 Minutes of the Workshop Proceedings to the National Tripartite Conference for the Protection of Overseas Entertainer, held last 18 November 1991, and sponsored by the DOLE and POEA.

2 Ibid.

3 Garcia v. Executive Secretary, 204 SCRA 516 [1991]; National Economic Protectionism Association v. Ongpin, 171 SCRA 657 [1989]; Dumlao v. Commission on Elections, 95 SCRA 392 [1980]; People v. Vera, 65 Phil 56 [1973].

4 Rollo, p. 35.

5 Section 2 of the Administrative Guidelines provides as follows:

Sec. 2. Exemptions

The following performing artists shall be exempted from the qualifications defined in Section 1 [of DOLE Circular 01-91].

1. Performing artists invited to perform abroad for a charitable cause as certified by the Philippine Embassy/Consulate;

2. Well known performing artists booked for limited performance;

3. Well known artists on a concert tour or in the case of well known dance troupes, on a performance tour;

4. Graduates of a regular course/formal training obtained from a performing arts school duly certified or accredited by the Department of Education and Culture;

5. Performing artist, singly or as a part of a group, with a track record of local or overseas performances in major establishments such as reputable hotels, theaters, etc.

All requests for exemption shall be submitted to the Secretary of Labor for approval.

Performing artists, regardless of age and experience who are currently in the jobsite may continue their employment overseas until the expiry of their contracts. They may, however, be redeployed overseas provided that:

1. their employers and performance venue have been pre-qualified by the Philippine Embassy/Consulate [at] the worksite;

2. they comply with processing requirements;

3. dancers must belong to a dance troupe. (Emphasis supplied)

6 Garcia v. The Executive Secretary, et al., G.R. No. 101273, promulgated 03 July 1992; Gonzales v. Land Bank of the Philippines, 183 SCRA 520 (1990); Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386 (1988); Español v. Chairman, Philippine Veterans Administration, 137 SCRA 134 (1985); Ermita-Malate Hotel and Motel Operators Association, Inc. v. City of Mayor of Manila, 20 SCRA 849 (1967).

7 See 3(m), Rule 131, Revised Rules of Court, as amended.

8 97 Phil. 806 (1955). See also, e.g., Garcia v. Executive Secretary, 204 SCRA 516 (1991); National Economic Protectionism Association v. Ongpin, 171 SCRA 657 (1989).

9 97 Phil. at 810-811.

10 Garcia v. Executive Secretary, 204 SCRA 516 at 522 (1991); Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil. 806 at 811 (1955).

judicial inquiry

G.R. No. 184740 February 11, 2010

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

D E C I S I O N

VILLARAMA, JR., J.:

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

The Antecedents

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC), vice Agustin R. Bengzon. Bautista was designated as Undersecretary for Maritime Transport of the department under Special Order No. 2006-171 dated October 23, 2006.¹

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

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

On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA vice Vicente T. Suazo, Jr.³ and she assumed her duties and responsibilities as such on February 2, 2009.⁴

The Case

Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution, as interpreted and explained by this Court in Civil Liberties

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

Petitioner further contends that even if Bautista’s appointment or designation as OIC of MARINA was intended to be merely temporary, still, such designation must not violate a standing constitutional prohibition, citing the rationale in Achacoso v. Macaraig.¹⁰ Section 13, Article VII of the 1987 Constitution does not enumerate temporariness as one (1) of the exceptions thereto. And since a temporary designation does not have a maximum duration, it can go on for months or years. In effect, the temporary appointment/designation can effectively circumvent the prohibition. Allowing undersecretaries or assistant secretaries to occupy other government posts would open a Pandora’s Box as to let them feast on choice government positions. Thus, in case of vacancy where no permanent appointment could as yet be made, the remedy would be to designate one (1) of the two (2) Deputy Administrators as the Acting Administrator. Such would be the logical course, the said officers being in a better position in terms of knowledge and experience to run the agency in a temporary capacity. Should none of them merit the President’s confidence, then the practical remedy would be for Undersecretary Bautista to first resign as Undersecretary in order to qualify her as Administrator of MARINA. As to whether she in fact does not receive or has waived any remuneration, the same does not matter because remuneration is not an element in determining whether there has been a violation of Section 13, Article VII of the 1987 Constitution.¹¹

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

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

On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present petition moot and academic. Petitioner’s prayer for a temporary restraining order or writ of preliminary injunction is likewise moot and academic since, with this supervening event, there is nothing left to enjoin.¹⁴

Respondents also raise the lack of legal standing of petitioner to bring this suit. Clear from the standard set in Public Interest Center is the requirement that the party suing as a taxpayer must prove that he has sufficient interest in preventing illegal expenditure of public funds, and more particularly, his personal and substantial interest in the case. Petitioner, however, has not alleged any personal or substantial interest in this case. Neither has he claimed that public funds were actually disbursed in connection with respondent Bautista’s designation as MARINA OIC. It is to be noted that respondent Bautista did not receive any salary while she was MARINA OIC. As to the alleged transcendental importance of an issue, this should not automatically confer legal standing on a party.¹⁵

Assuming for the sake of argument that the legal question raised herein needs to be resolved, respondents submit that the petition should still be dismissed for being unmeritorious considering that Bautista’s concurrent designation as MARINA OIC and DOTC Undersecretary was constitutional. There was no violation of Section 13, Article VII of the 1987 Constitution because respondent Bautista was merely designated acting head of MARINA on September 1, 2008. She was designated MARINA OIC, not appointed MARINA Administrator. With the resignation of Vicente T. Suazo, Jr., the position of MARINA Administrator was left vacant, and pending the appointment of permanent Administrator, respondent Bautista was designated OIC in a temporary capacity for the purpose of preventing a hiatus in the discharge of official functions. Her case thus falls under the recognized exceptions to the rule against multiple offices, i.e., without additional compensation (she did not receive any emolument as MARINA OIC) and as required by the primary functions of the office. Besides, Bautista held the position for four (4) months only, as in fact when she was appointed MARINA Administrator on February 2, 2009, she relinquished her post as DOTC Undersecretary for Maritime Transport, in acknowledgment of the proscription on the holding of multiple offices.¹⁶

As to petitioner’s argument that the DOTC Undersecretary for Maritime Transport and MARINA Administrator are incompatible offices, respondents cite the test laid down in People v. Green,¹⁷ which held that "[T]he offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are compatible at common law." Thus, respondents point out that any recommendation by the MARINA Administrator concerning issues of policy and administration go to the MARINA Board and not the Undersecretary for Maritime Transport. The Undersecretary for Maritime Transport is, in turn, under the direct supervision of the DOTC Secretary. Petitioner’s fear that there is no longer a person above the Administrator of MARINA who will be reviewing the acts of said agency (the Undersecretary for Maritime Transport) is, therefore, clearly unfounded.¹⁸

In his Reply, petitioner contends that respondents’ argument on the incompatibility of positions was made on the mere assumption that the positions of DOTC Undersecretary for Maritime Transport and the administratorship of MARINA are "closely related" and is governed by Section 7, paragraph 2, Article IX-B of the 1987 Constitution rather than by Section 13, Article VII. In other words, it was a mere secondary argument. The fact remains that, incompatible or not, Section 13, Article VII still does not allow the herein challenged designation.¹⁹

The sole issue to be resolved is whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members and their deputies and assistants.

Our Ruling

The petition is meritorious.

Requisites for Judicial Review

The courts’ power of judicial review, like almost all other powers conferred by the Constitution, is subject to several limitations, namely: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case, such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.²⁰ Respondents assert that the second requisite is absent in this case.

Generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action.²¹ The question on standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."²²

In David v. Macapagal-Arroyo,²³ summarizing the rules culled from jurisprudence, we held that taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. [EMPHASIS SUPPLIED.]

Petitioner having alleged a grave violation of the constitutional prohibition against Members of the Cabinet, their deputies and assistants holding two (2) or more positions in government, the fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for redress of such illegal act by public officials.

The other objection raised by the respondent is that the resolution of this case had been overtaken by events considering the effectivity of respondent Bautista’s appointment as MARINA Administrator effective February 2, 2009 and her relinquishment of her former position as DOTC Undersecretary for Maritime Transport.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.²⁴ However, as we held in Public Interest Center, Inc. v. Elma,²⁵ supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public.²⁶

As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.²⁷ In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of the President’s appointment or designation of a Department Undersecretary as officer-in-charge of an attached agency will arise in every such appointment.²⁸

Undersecretary Bautista’s designation as MARINA OIC falls under the stricter prohibition under Section 13, Article VII of the 1987 Constitution.

Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution, which provides:

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.

On the other hand, Section 7, paragraph (2), Article IX-B reads:

Sec. 7. x x x

Unless otherwise allowed by law or 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.

In Civil Liberties Union, a constitutional challenge was brought before this Court to nullify EO No. 284 issued by then President Corazon C. Aquino on July 25, 1987, which included Members of the Cabinet, undersecretaries and assistant secretaries in its provisions limiting to two (2) the positions that appointive officials of the Executive Department may hold in government and government corporations. Interpreting the above provisions in the light of the history and times and the conditions and circumstances under which the Constitution was framed, this Court struck down as unconstitutional said executive issuance, saying that it 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.

Noting that the prohibition imposed on the President and his official family is all-embracing, the disqualification was held to be absolute, as the holding of "any other office" is not qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting Senators and Members of the House of Representatives from holding "any other office or employment in the Government"; and when compared with other officials and employees such as members of the armed forces and civil service employees, we concluded thus:

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 checks and restraints on them are called for because there is more possibility of abuse in their case."

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 IX-B 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.

x x x x

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. 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-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.²⁹ [EMPHASIS SUPPLIED.]

Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another office is allowed by law or the primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive officials specified therein, without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said office. The reason is that these posts do not comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials.³⁰ Apart from their bare assertion that respondent Bautista did not receive any compensation when she was OIC of MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in an ex-officio capacity as required by the primary functions of her office as DOTC Undersecretary for Maritime Transport.

MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand E. Marcos on June 1, 1974. It is mandated to undertake the following:

(a) Adopt and implement a practicable and coordinated Maritime Industry Development Program which shall include, among others, the early replacement of obsolescent and uneconomic vessels; modernization and expansion of the Philippine merchant fleet, enhancement of domestic capability for shipbuilding, repair and maintenance; and the development of reservoir of trained manpower;

(b) Provide and help provide the necessary; (i) financial assistance to the industry through public and private financing institutions and instrumentalities; (ii) technological assistance; and (iii) in general, a favorable climate for expansion of domestic and foreign investments in shipping enterprises; and

(c) Provide for the effective supervision, regulation and rationalization of the organizational management, ownership and operations of all water transport utilities, and other maritime enterprises.³¹

The management of MARINA is vested in the Maritime Administrator, who shall be directly assisted by the Deputy Administrator for Planning and a Deputy Administrator for Operations, who shall be appointed by the President for a term of six (6) years. The law likewise prescribes the qualifications for the office, including such "adequate training and experience in economics, technology, finance, law, management, public utility, or in other phases or aspects of the maritime industry," and he or she is entitled to receive a fixed annual salary.³² The Administrator shall be directly responsible to the Maritime Industry Board, MARINA’s governing body, and shall have powers, functions and duties as provided in P.D. No. 474, which provides, under Sections 11 and 12, for his or her general and specific functions, respectively, as follows:

Sec. 11. General Powers and Functions of the Administrator. — Subject to the general supervision and control of the Board, the Administrators shall have the following general powers, functions and duties;

a. To implement, enforce and apply the policies, programs, standards, guidelines, procedures, decisions and rules and regulations issued, prescribed or adopted by the Board pursuant to this Decree;

b. To undertake researches, studies, investigations and other activities and projects, on his own initiative or upon instructions of the Board, and to submit comprehensive reports and appropriate recommendations to the Board for its information and action;

c. To undertake studies to determine present and future requirements for port development including navigational aids, and improvement of waterways and navigable waters in consultation with appropriate agencies;

d. To pursue continuing research and developmental programs on expansion and modernization of the merchant fleet and supporting facilities taking into consideration the needs of the domestic trade and the need of regional economic cooperation schemes; and

e. To manage the affairs of the Authority subject to the provisions of this Decree and applicable laws, orders, rules and regulations of other appropriate government entities.

Sec. 12. Specific Powers and Functions of the Administrator. — In addition to his general powers and functions, the Administrator shall;

a. Issue Certificate of Philippine Registry for all vessels being used in Philippine waters, including fishing vessels covered by Presidential Decree No. 43 except transient civilian vessels of foreign registry, vessels owned and/or operated by the Armed Forces of the Philippines or by foreign governments for military purposes, and bancas, sailboats and other watercraft which are not motorized, of less than three gross tons;

b. Provide a system of assisting various officers, professionals, technicians, skilled workers and seamen to be gainfully employed in shipping enterprises, priority being given to domestic needs;

c. In collaboration and coordination with the Department of Labor, to look into, and promote improvements in the working conditions and terms of employment of the officers and crew of vessels of Philippine registry, and of such officers and crew members who are Philippine citizens and employed by foreign flag vessels, as well as of personnel of other shipping enterprises, and to assist in the settlement of disputes between the shipowners and ship operators and such officers and crew members and between the owner or manager of other shipping enterprises and their personnel;

d. To require any public water transport utility or Philippine flag vessels to provide shipping services to any coastal areas in the country where such services are necessary for the development of the area, to meet emergency sealift requirements, or when public interest so requires;

e. Investigate by itself or with the assistance of other appropriate government agencies or officials, or experts from the private sector, any matter within its jurisdiction, except marine casualties or accidents which shall be undertaken by the Philippine Coast Guard;

f. Impose, fix, collect and receive in accordance with the schedules approved by the Board, from any shipping enterprise or other persons concerned, such fees and other charges for the payment of its services;

g. Inspect, at least annually, the facilities of port and cargo operators and recommend measures for adherence to prescribed standards of safety, quality and operations;

h. Approve the sale, lease or transfer of management of vessels owned by Philippine Nationals to foreign owned or controlled enterprises;

i. Prescribe and enforce rules and regulations for the prevention of marine pollution in bays, harbors and other navigable waters of the Philippines, in coordination with the government authorities concerned;

j. Establish and maintain, in coordination with the appropriate government offices and agencies, a system of regularly and promptly producing, collating, analyzing and disseminating traffic flows, port operations, marine insurance services and other information on maritime matters;

k. Recommend such measures as may be necessary for the regulation of the importation into and exportation from the Philippines of vessels, their equipment and spare parts;

l. Implement the rules and regulations issued by the Board of Transportation;

m. Compile and codify all maritime laws, orders, rules and regulations, decisions in leasing cases of courts and the Authority’s procedures and other requirements relative to shipping and other shipping enterprises, make them available to the public, and, whenever practicable to publish such materials;

n. Delegate his powers in writing to either of the Deputy Administrators or any other ranking officials of the Authority; Provided, That he informs the Board of such delegation promptly; and

o. Perform such other duties as the Board may assign, and such acts as may be necessary and proper to implement this Decree.

With the creation of the Ministry (now Department) of Transportation and Communications by virtue of EO No. 546, MARINA was attached to the DOTC for policy and program coordination on July 23, 1979. Its regulatory function was likewise increased with the issuance of EO No. 1011 which abolished the Board of Transportation and transferred the quasi-judicial functions pertaining to water transportation to MARINA. On January 30, 1987, EO No. 125 (amended by EO No. 125-A) was issued reorganizing the DOTC. The powers and functions of the department and the agencies under its umbrella were defined, further increasing the responsibility of MARINA to the industry. Republic Act No. 9295, otherwise known as the "The Domestic Shipping Development Act of 2004,"³³ further strengthened MARINA’s regulatory powers and functions in the shipping sector.

Given the vast responsibilities and scope of administration of the Authority, we are hardly persuaded by respondents’ submission that respondent Bautista’s designation as OIC of MARINA was merely an imposition of additional duties related to her primary position as DOTC Undersecretary for Maritime Transport. It appears that the DOTC Undersecretary for Maritime Transport is not even a member of the Maritime Industry Board, which includes the DOTC Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the following as members: Executive Secretary (Office of the President), Philippine Ports Authority General Manager, Department of National Defense Secretary, Development Bank of the Philippines General Manager, and the Department of Trade and Industry Secretary.³⁴

Finally, the Court similarly finds respondents’ theory that being just a "designation," and temporary at that, respondent Bautista was never really "appointed" as OIC Administrator of MARINA, untenable. In Binamira v. Garrucho, Jr.,³⁵ we distinguished between the terms appointment and designation, as follows:

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.³⁶ [emphasis supplied.]

Clearly, respondents’ reliance on the foregoing definitions is misplaced considering that the above-cited case addressed the issue of whether petitioner therein acquired valid title to the disputed position and so had the right to security of tenure. It must be stressed though that while the designation was in the nature of an acting and temporary capacity, the words "hold the office" were employed. Such holding of office pertains to both appointment and designation because the appointee or designate performs the duties and functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible offices, refers to the holding of the office, and not to the nature of the appointment or designation, words which were not even found in Section 13, Article VII nor in Section 7, paragraph 2, Article IX-B. To "hold" an office means to "possess or occupy" the same, or "to be in possession and administration,"³⁷ which implies nothing less than the actual discharge of the functions and duties of the office.1avvphi1

The disqualification laid down in Section 13, Article VII is aimed at preventing the concentration of powers in the Executive Department officials, specifically the President, Vice-President, Members of the Cabinet and their deputies and assistants. Civil Liberties Union traced the history of the times and the conditions under which the Constitution was framed, and construed the Constitution consistent with the object sought to be accomplished by adoption of such provision, and the evils sought to be avoided or remedied. We recalled the practice, during the Marcos regime, 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 or controlled corporations. This practice of holding multiple offices or positions in the government led to abuses by unscrupulous public officials, who took advantage of this scheme for purposes of self-enrichment. 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 would draft into the proposed Constitution the provisions under consideration, which were envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment.³⁸ Our declaration in that case cannot be more explicit:

But what is indeed significant is the fact that although Section 7, Article IX-B 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.³⁹ [emphasis supplied.]

Such laudable intent of the law will be defeated and rendered sterile if we are to adopt the semantics of respondents. It would open the veritable floodgates of circumvention of an important constitutional disqualification of officials in the Executive Department and of limitations on the President’s power of appointment in the guise of temporary designations of Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-owned or controlled corporations.

As to respondents’ contention that the concurrent positions of DOTC Undersecretary for Maritime Transport and MARINA OIC Administrator are not incompatible offices, we find no necessity for delving into this matter. Incompatibility of offices is irrelevant in this case, unlike in the case of PCGG Chairman Magdangal Elma in Public Interest Center, Inc. v. Elma.⁴⁰ Therein we held that Section 13, Article VII is not applicable to the PCGG Chairman or to the Chief Presidential Legal Counsel, as he is not a cabinet member, undersecretary or assistant secretary.⁴¹

WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID.

No costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO Associate Justice	(No Part) RENATO C. CORONA^* Associate Justice
CONCHITA CARPIO MORALES Associate Justice	PRESBITERO J. VELASCO, JR. Associate Justice
ANTONIO EDUARDO B. NACHURA Associate Justice	TERESITA J. LEONARDO-DE CASTRO Associate Justice
ARTURO D. BRION Associate Justice	DIOSDADO M. PERALTA Associate Justice
LUCAS P. BERSAMIN Associate Justice	MARIANO C. DEL CASTILLO Associate Justice
ROBERTO A. ABAD Associate Justice	JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the 1987 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

Footnotes

^* No Part.

¹ Rollo, pp. 99 and 101.

² Id. at 100.

³ Id. at 102.

⁴ Id. at 103-104.

⁵ G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.

⁶ G.R. No. 138965, June 30, 2006, 494 SCRA 53.

⁷ PROVIDING FOR THE REORGANIZATION OF MARITIME FUNCTIONS IN THE PHILIPPINES, CREATING THE MARITIME INDUSTRY AUTHORITY, AND FOR OTHER PURPOSES, approved on June 1, 1974.

⁸ Approved on April 13, 1987.

⁹ Rollo, pp. 14-27.

¹⁰ G.R. No. 93023, March 13, 1991, 195 SCRA 235.

¹¹ Rollo, pp. 34-37.

¹² Id. at 38-40.

¹³ Id. at 40-42.

¹⁴ Id. at 86-87.

¹⁵ Id. at 88-89.

¹⁶ Id. at 90-93.

¹⁷ 13 Sickels 295, 58 N.Y. 295, 1874 WL 11282 (N.Y.).

¹⁸ Id. at 93-95.

¹⁹ Id. at 127-128.

²⁰ Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R. Nos. 160261-160263, 160277, 160292, 160295, 160310, 160318, 160342, 160343, 160360, 160365, 160370, 160376, 160392, 160397, 160403 and 160405, November 10, 2003, 415 SCRA 44, 133 citing Angara v. Electoral Commission, 63 Phil. 139 (1936).

²¹ Tolentino v. COMELEC, 465 Phil. 385, 402 (2004).

²² Kilosbayan, Incorporated v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663 (1962).

²³ G.R. No. 171396 and six (6) other cases, May 3, 2006, 489 SCRA 160, 220-221.

²⁴ David v. Macapagal-Arroyo, supra at 213-214, citing Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129, Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA 91; Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590, Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21 and Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.

²⁵ G.R. No. 138965, June 30, 2006, 494 SCRA 53.

²⁶ Id. at 58, citing Province of Batangas v. Romulo, supra at 757 and Chavez v. Public Estates Authority, 433 Phil. 506, 522 (2002).

²⁷ Pimentel, Jr. v. Ermita, G.R. No. 164978, October 13, 2005, 472 SCRA 587, 593, citing Tolentino v. Commission on Elections, G.R. No. 148334, January 21, 2004, 420 SCRA 438, Gil v. Benipayo, G.R. No. 148179, June 26, 2001 (Unsigned Resolution), Chief Supt. Acop v. Secretary Guingona, Jr., 433 Phil. 62 (2002), Viola v. Hon. Alunan III, 343 Phil. 184 (1997) and Alunan III v. Mirasol, 342 Phil. 467 (1997).

²⁸ Id. at 593.

²⁹ Civil Liberties Union v. Executive Secretary, supra at 328-329, 331.

³⁰ Id. at 331-332.

³¹ P.D. No. 474, Sec. 2.

³² Id., Secs. 8 and 9.

³³ AN ACT PROMOTING THE DEVELOPMENT OF PHILIPPINE DOMESTIC SHIPPING, SHIPBUILDING, SHIP REPAIR AND SHIP BREAKING, ORDAINING REFORMS IN GOVERNMENT POLICIES TOWARDS SHIPPING IN THE PHILIPPINES, AND FOR OTHER PURPOSES, approved on May 3, 2004.

³⁴ Reference: 2006 MARINA Annual Report, sourced from the Internet at http://www.marina.gov.ph/services/results.aspx?k=MARINA%20annual%20report&start1=1>.

³⁵ G.R. No. 92008, July 30, 1990, 188 SCRA 154.

³⁶ Id. at 158-159.

³⁷ BLACK’S LAW DICTIONARY, Eighth Edition, p. 749.

³⁸ Civil Liberties Union v. Executive Secretary, supra at 326-327.

³⁹ Id. at 327.

⁴⁰ Supra note 6.

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