G.R. No. 175352 – DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners, versus RICHARD J. GORDON, Respondent.

Promulgated:

July 15, 2009

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DISSENTING OPINION

NACHURA, J.:

I am constrained to register my dissent because the ponencia does not only endorse an unmistakably flagrant transgression of the Constitution but also unwittingly espouses the destruction of the Philippine National Red Cross (PNRC) as an institution. With all due respect, I disagree with the principal arguments advanced in the ponencia to justify Senator Richard J. Gordon’s unconstitutional holding of the chairmanship of the PNRC Board of Governors while concurrently sitting as a member of the Senate of the Philippines.

Procedurally, I maintain that the petition is one for prohibition and that petitioners have standing to file the same. On the merits, I remain earnestly convinced that PNRC is a government owned or controlled corporation (GOCC), if not a government instrumentality; that its charter does not violate the constitutional proscription against the creation of private corporations by special law; and that Senator Gordon’s continuous occupancy of two incompatible positions is a clear violation of the Constitution.

Allow me to elucidate.

The petition should be treated

as one for prohibition; and

petitioners have locus standi

I submit that the present petition should be treated as one for prohibition rather than for quo warranto. In the main, the petitioners seek from this Court the declaration that Senator Gordon has forfeited his seat in the Senate, and the consequent proscription from further acting or representing himself as a Senator and from receiving the salaries, emoluments, compensations, privileges and benefits thereof.[1] Hence, the remedy sought is preventive and restrictive—an injunction against an alleged continuing violation of the fundamental law. Furthermore, the petitioners raise a constitutional issue, without claiming any entitlement to either the Senate seat or the chairmanship of PNRC.

Considering that the issue involved is of fundamental constitutional significance and of paramount importance, i.e., whether the Senator continues to commit an infringement of the Constitution by holding two positions claimed to be incompatible, the Court has full authority, nay the bounden duty, to treat the vaguely worded petition as one for prohibition and assume jurisdiction.[2]

Petitioners, as citizens of the Republic and by being taxpayers, have locus standi to institute the instant case. Garcillano v. the House of Representatives Committees on Public Information, Public Order and Safety, National Defense and Security, Information and Communications Technology, and Suffrage and Electoral Reforms[3] echoes the current policy of the Court, as laid down in Chavez v. Gonzales,[4] to disallow procedural barriers to serve as impediments to addressing and resolving serious legal questions that greatly impact on public interest. This is in keeping with the Court’s responsibility under the Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws, and that they have not abused the discretion given them.[5]

Finally, as aforementioned, petitioners advance a constitutional issue which deserves the attention of this Court in view of its seriousness, novelty and weight as precedent.[6] Considering that Senator Gordon is charged with continuously violating the Constitution by holding incompatible offices, the institution of the instant action by the petitioners is proper.

II.

A brief history of the PNRC

A historical account of the PNRC’s creation is imperative in order to comprehend the nature of the institution and to put things in their proper perspective.

Even before its incorporation in 1947, the Red Cross, as an organization, was already in existence in the Philippines. Apolinario Mabini played an important role in the approval by the Malolos Republic, on February 17, 1899, of the Constitution of the National Association of the Red Cross. Appointed to serve as its president was Hilario del Rosario de Aguinaldo. On August 29, 1900, International Delegate of Diplomacy Felipe Agoncillo met with International Committee of the Red Cross (ICRC) President Gustave Moynier to lobby for the recognition of the Filipino Red Cross Society and the application of the 1864 Geneva Convention to the country during the Filipino-American war.[7] The Geneva Convention of August 22, 1864 dealt mainly on the relief to wounded soldiers without any distinction as to nationality, on the neutrality and inviolability of medical personnel and medical establishments and units; and on the adoption of the distinctive sign of the red cross on a white ground by hospitals, ambulances and evacuation parties and personnel.[8]

On August 30, 1905, a Philippine branch of the American National Red Cross (ANRC) was organized. This was later officially recognized as an ANRC chapter on December 4, 1917. In 1934, President Manuel L. Quezon initiated the establishment of an independent Philippine Red Cross, but this did not materialize because the Commonwealth Government at that time could not ratify the Geneva Convention. During the Japanese occupation, a Japanese-controlled Philippine Red Cross was created to take care of internment camps in the country. After the liberation of Manila in 1945, local Red Cross officials and the ANRC undertook to reconstitute the organization.[9] The Republic of the Philippines became an independent nation on July 4, 1946, and proclaimed its adherence to the Geneva Convention on February 14, 1947. On March 22 of that year, the PNRC was officially created when President Manuel A. Roxas signed Republic Act (R.A.) No. 95.[10]

PNRC is a GOCC

Section 16, Article XII, of the Philippine Constitution, provides the inflexible imperative for the formation or organization of private corporations, as follows:

Sec. 16. The Congress shall not, except by general law, provide for the formation, organization or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

Delineating the nature of a GOCC, compared to a private corporation, Justice Carpio explains this inviolable rule in Feliciano v. Commission on Audit[11] in this wise:

We begin by explaining the general framework under the fundamental law. The Constitution recognizes two classes of corporations. The first refers to private corporations created under a general law. The second refers to government-owned or controlled corporations created by special charters. Section 16, Article XII of the Constitution provides:

Section 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability.

The Constitution emphatically prohibits the creation of private corporations except by a general law applicable to citizens. The purpose of this constitutional provision is to ban private corporations created by special charters, which historically gave certain individuals, families or groups special privileges denied to other citizens.

In short, Congress cannot enact a law creating a private corporation with a special charter. Such legislation would be unconstitutional. Private corporations may exist only under a general law. If the corporation is private, it must necessarily exist under a general law. Stated differently, only corporations created under a general law can qualify as private corporations. Under existing laws, that general law is the Corporation Code, except that the Cooperative Code governs the incorporation of cooperatives.

The Constitution authorizes Congress to create government-owned or controlled corporations through special charters. Since private corporations cannot have special charters, it follows that Congress can create corporations with special charters only if such corporations are government-owned or controlled.[12]

Reason dictates that since no private corporation can have a special charter, it follows that Congress can create corporations with special charters only if such corporations are government-owned or controlled.[13] To hold otherwise would run directly against our fundamental law or, worse, authorize implied amendment to it, which this Court cannot allow.

The PNRC was incorporated under R.A. No 95, a special law. Following the logic in Feliciano, it cannot be anything but a GOCC.

R.A. No. 95 has undergone amendment through the years.[14] Did the amendment of the PNRC Charter have the effect of transforming it into a private corporation?

In Camporedondo v. National Labor Relations Commission,[15] we answered this in the negative. The Court’s ruling in that case, reiterated in Baluyot v. Holganza,[16] is direct, definite and clear, viz:

Resolving the issue set out in the opening paragraph of this opinion, we rule that the Philippine National Red Cross (PNRC) is a government owned and controlled corporation, with an original charter under Republic Act No. 95, as amended. The test to determine whether a corporation is government owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise of a public function, or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions, and its employees are under the jurisdiction of the Civil Service Commission, and are compulsory members of the Government Service Insurance System. The PNRC was not “impliedly converted into a private corporation” simply because its charter was amended to vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees and other charges of all kinds on all importations and purchases for its exclusive use, on donations for its disaster relief work and other services and in its benefits and fund raising drives and be allotted one lottery draw a year by the Philippine Charity Sweepstakes Office for the support of its disaster relief operation in addition to its existing lottery draws for blood programs.[17]

In an effort to avoid the inescapable command of Camporendondo, the ponencia asserts that the decision has failed to consider the definition of a GOCC under Section 2 (13) of the Introductory Provisions of Executive Order No. 292 (Administrative Code of 1987), which provides:

SEC. 2. General Terms Defined. – x x x

(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent of its capital stock: Provided, That government-owned or controlled corporations may be further categorized by the Department of the Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations.[18]

The ponencia then argues that, based on the criterion in the cited provision, PNRC is not owned or controlled by the government and, thus, is not a GOCC.

I respectfully differ. The quoted Administrative Code provision does not pronounce a definition of a GOCC that strays from Section 16, Article XII of the Constitution. As explained in Philippine National Construction Corporation v. Pabion, et al.,[19] it merely declares that a GOCC may either be a stock or non-stock corporation, or that it “may be further categorized,”[20] suggesting that the definition provided in the Administrative Code is broad enough to admit of other distinctions as to the kinds of GOCCs.[21]

Rather, crucial in this definition is the reference to the corporation being “vested with functions relating to public needs whether governmental or proprietary.” When we relate this to the PNRC Charter, as amended, we note that Section 1 of the charter starts with the phrase, “(T)here is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the Geneva Conventions x x x”.[22] It is beyond cavil that the obligations of the Republic of the Philippines set forth in the Geneva Conventions are public or governmental in character. If the PNRC is “officially designated to assist the Republic,” then the PNRC is, perforce, engaged in the performance of the government’s public functions.

PNRC is, at the very least,

a government instrumentality

Further, applying the definition of terms used in the Administrative Code of 1987, as Justice Carpio urges this Court to do, will lead to the inescapable conclusion that PNRC is an instrumentality of the government. Section 2(10) of the said code defines a government instrumentality as:

(10) Instrumentality refers to any agency of the National Government not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations.[23]

The PNRC is vested with the special function of assisting the Republic of the Philippines in discharging its obligations under the Geneva Conventions. It is endowed with corporate powers. It administers special funds—the contributions of its members, the aid given by the government, the support extended to it by the Philippine Charity Sweepstakes Office (PCSO) in terms of allotment of lottery draws.[24] It enjoys operational autonomy, as emphasized by Justice Carpio himself. And all these attributes exist by virtue of its charter.

Significantly, in the United States, the ANRC, the precursor of the PNRC and likewise a member of the International Federation of Red Cross and Red Crescent Societies,[25] is considered as a federal instrumentality. Addressing the issue of whether the ANRC was an entity exempt from paying unemployment compensation tax, the US Supreme Court, in Department of Employment v. United States,[26] characterized the Red Cross as an instrumentality of the federal government not covered by the enforcement of the tax statute and entitled to a refund of taxes paid—

On the merits, we hold that the Red Cross is an instrumentality of the United States for purposes of immunity from state taxation levied on its operations, and that this immunity has not been waived by congressional enactment. Although there is no simple test for ascertaining whether an institution is so closely related to governmental activity as to become a tax-immune instrumentality, the Red Cross is clearly such an instrumentality. See generally, Sturges, The Legal Status of the Red Cross, 56 Mich.L.Rev. 1 (1957). Congress chartered the present Red Cross in 1905, subjecting it to governmental supervision and to a regular financial audit by the Defense, then War, Department. 33 Stat. 599, as amended, 36 U.S.C. s 1 et seq. Its principal officer is appointed by the President, who also appoints seven (all government officers) of the remaining 49 Governors. 33 Stat. 601, as amended, 36 U.S.C. s 5. By statute and Executive Order there devolved upon the Red Cross the right and the obligation to meet this Nation's commitments under various Geneva Conventions, to perform a wide variety of functions indispensable to the workings of our Armed Forces around the globe, and to assist the Federal Government in providing disaster assistance to the States in time of need. Although its operations are financed primarily from voluntary private contributions, the Red Cross does receive substantial material assistance from the Federal Government. And time and time again, both the President and the Congress have recognized and acted in reliance upon the Red Cross' status virtually as an arm of the Government. In those respects in which the Red Cross differs from the usual government agency-e.g., in that its employees are not employees of the United States, and that government officials do not direct its everyday affairs-the Red Cross is like other institutions-e.g., national banks-whose status as tax-immune instrumentalities of the United States is beyond dispute.[27]

The same conclusion was reached in R.A. Barton v. American Red Cross.[28] In that case, a transfusion recipient and her family brought action against American Red Cross and its state medical director under Alabama Medical Liability Act as well as Alabama tort law for failing to properly test blood sample and failing to timely notify recipient that donor had tested positive for human immunodeficiency virus (HIV). The US District Court concluded that the Red Cross was a federal instrumentality and was so intertwined with and was essential to the operation of the federal government, both internationally and domestically;[29] thus, its personnel were exempt from tort liability if the conduct complained of were within the scope of official duties and were discretionary in nature.[30] The US Court of Appeals later affirmed the decision, and the US Supreme Court denied certiorari and rehearing on the case.[31]

Interestingly, while the United States considers the ANRC as its arm and the US courts uphold its status as a federal instrumentality, ANRC remains an independent, volunteer-led organization that works closely with the ICRC on matters of international conflict and social, political, and military unrest. There is, therefore, no sufficient basis for Justice Carpio to assume that if this Court will consider PNRC as a GOCC, then “it cannot merit the trust of all and cannot effectively carry out its mission as a National Red Cross Society.”

Let it be stressed that, in much the same way as the ANRC, the PNRC has been chartered and incorporated by the Philippine Government to aid it in the fulfillment of its obligations under the Geneva Convention. The President of the Republic appoints six of the 36 PNRC governors. Though it depends primarily on voluntary contributions for its funding, PNRC receives financial assistance not only from the National Government and the PCSO but also through the local government units. PNRC further submits to the President an annual report containing its activities and showing its financial condition, as well as the receipts and disbursements. PNRC has further been recognized by the Philippine Government to be an essential component in its international and domestic operation. There is no doubt therefore that PNRC is a GOCC or, if not, at least a government instrumentality.

The fact that the Philippine or the American National Red Cross is a governmental instrumentality does not affect its autonomy and operation in conformity with the Fundamental Principles of the International Red Cross. The PNRC, like the ANRC, remains autonomous, neutral and independent from the Government, and vice versa, consonant with the principles laid down in the Geneva Convention.

A similar standing obtains in the case of the Commission on Human Rights (CHR). While it is a governmental office, it is independent. Separatists and insurgents do not consider the CHR, or the PNRC in this case, as the enemy, but rather as the entity to turn to in the event of injury to their constitutional rights, for the CHR, or to their physical being, for the PNRC.

The PNRC Charter does not violate

the constitutional proscription

against the creation of private

corporations by special law

Considering that the PNRC is not a private corporation, but a GOCC or a government instrumentality, then its charter does not violate the constitutional provision that Congress cannot, except by a general law, provide for the formation, organization or regulation of private corporations, unless such corporations are owned or controlled by the Government.[32] We have already settled this issue in Camporedondo and in Baluyot. Let it be emphasized that, in those cases, this Court has found nothing wrong with the PNRC Charter. We have simply applied the Constitution, and in Feliciano, this Court has explained the meaning of the constitutional provision.

I respectfully submit that we are not prepared to reverse the ruling of this Court in the said cases. To rule otherwise will create an unsettling ripple effect in numerous decisions of this Court, including those dealing with the jurisdiction of the Civil Service Commission (CSC) and the authority of the Commission on Audit (COA), among others.

Furthermore, to subscribe to the proposition that Section 1 of the PNRC Charter, which deals with the creation and incorporation of the organization, is invalid for being violative of the aforesaid constitutional proscription, but the rest of the provisions in the PNRC Charter remains valid, is to reach an absurd situation in which obligations are imposed on and a framework for its operation is laid down for a legally non-existing entity. If Section 1 of the PNRC Charter were impulsively invalidated, what will remain are the following provisions, which will have no specific frame of reference─

SECTION 2. The name of this corporation shall be "The Philippine National Red Cross" and by that name shall have perpetual succession with the power to sue and be sued; to own and hold such real and personal estate as shall be deemed advisable and to accept bequests, donations and contributions of property of all classes for the purpose of this Corporation hereinafter set forth; to adopt a seal and to alter and destroy the same at pleasure; and to have the right to adopt and to use, in carrying out its purposes hereinafter designated, as an emblem and badge, a red Greek cross on a white ground, the same as has been described in the Geneva Conventions, and adopted by the several nations ratifying or adhering thereto; to ordain and establish by-laws and regulations not inconsistent with the laws of the Republic of the Philippines, and generally to do all such acts and things as may be necessary to carry into effect the provisions of this Act and promote the purposes of said organization; and the corporation hereby created is designated as the organization which is authorized to act in matters of relief under said Convention. In accordance with the Geneva Conventions, the issuance of the distinctive Red Cross emblem to medical units and establishments, personnel and materials neutralized in time of war shall be left to the military authorities. The red Greek cross on a white ground, as has been described by the Geneva Conventions is not, and shall not be construed as a religious symbol, and shall have equal efficacy and applicability to persons of all faiths, creeds and beliefs. The operational jurisdiction of the Philippine National Red Cross shall be over the entire territory of the Philippines.

SECTION 3. That the purposes of this Corporation shall be as follows:

a. To provide volunteer aid to the sick and wounded of armed forces in time of war, in accordance with the spirit of and under the conditions prescribed by the Geneva Conventions to which the Republic of the Philippines proclaimed its adherence;

b. For the purposes mentioned in the preceding sub-section, to perform all duties devolving upon the Corporation as a result of the adherence of the Republic of the Philippines to the said Convention;

c. To act in matters of voluntary relief and in accordance with the authorities of the armed forces as a medium of communication between people of the Republic of the Philippines and their Armed Forces, in time of peace and in time of war, and to act in such matters between similar national societies of other governments and the Governments and people and the Armed Forces of the Republic of the Philippines;

d. To establish and maintain a system of national and international relief in time of peace and in time of war and apply the same in meeting and emergency needs caused by typhoons, flood, fires, earthquakes, and other natural disasters and to devise and carry on measures for minimizing the suffering caused by such disasters;

e. To devise and promote such other services in time of peace and in time of war as may be found desirable in improving the health, safety and welfare of the Filipino people;

f. To devise such means as to make every citizen and/or resident of the Philippines a member of the Red Cross.

SECTION 4. In furtherance of the purposes mentioned in the preceding sub-paragraphs, the Philippine National Red Cross shall:

a. Be authorized to secure loans from any financial institution which shall not exceed its budget of the previous year.

b. Be exempt from payment of all duties, taxes, fees, and other charges of all kinds on all importations and purchases for its exclusive use, on donations for its disaster relief work and other Red Cross services, and in its benefits and fund raising drives all provisions of law to the contrary notwithstanding.

c. Be allotted by the Philippine Charity Sweepstakes Office one lottery draw yearly for the support of its disaster relief operations in addition to its existing lottery draws for the Blood Program.

SECTION 5. Membership in the Philippine National Red Cross shall be open to entire population in the Philippines regardless of citizenship. Any contribution to the Philippine National Red Cross Annual Fund Campaign shall entitle the contributor to membership for one year and said contribution shall be deductible in full for taxation purposes.

SECTION 6. The governing powers and authority shall be vested in a Board of Governors composed of thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall be elected by chapter delegates in biennial conventions and the remaining six shall be elected by the twenty-four members of the Board already chosen. At least one but not more than three of the Presidential appointees shall be chosen from the Armed Forces of the Philippines.

a. The term of office of all members of the board of Governors shall be four years. Any member of the Board of Governor who has served two consecutive full terms of four years each shall be ineligible for membership on the Board for at least two years; any term served to cover unexpired terms of office of any governor will not be considered in this prohibition in serving two consecutive full terms, and provided, however, that terms served for more than two years shall be considered a full term.

b. Vacancies in the Board of Governors caused by death or resignation shall be filled by election by the Board of Governors at its next meeting, except that vacancies among the Presidential appointees shall be filled by the President.

SECTION 7. The President of the Philippines shall be the Honorary President of the Philippine National Red Cross. The officers shall consist of a Chairman, a Vice-Chairman, a Secretary, a Treasurer, a Counselor, an Assistant Secretary and an Assistant Treasurer, all of whom shall be elected by the Board of Governors from among its membership for a term of two years and may be re-elected. The election of officers shall take place within sixty days after all the members of the Board of Governors have been chosen and have qualified.

SECTION 8. The Biennial meeting of chapter delegates shall be held on such date and such place as may be specified by the Board of Governors to elect members of the Board of Governors and advice the Board of Governors on the activities of the Philippine National Red Cross; Provided, however that during periods of great emergency, the Board of Governors in its discretion may determine that the best interest of the corporation shall be served by postponing such biennial meeting.

SECTION 9. The power to ordain, adopt and amend by-laws and regulations shall be vested in the Board of Governors.

SECTION 10. The members of the Board of Governors, as well as the officers of the corporation, shall serve without compensation. The compensation of the paid staff of the corporation shall be determined by the Board of Governors upon the recommendation of the Secretary General.

SECTION 11. As a national voluntary organization, the Philippine National Red Cross shall be financed primarily by contributions obtained through solicitation campaigns throughout the year which shall be organized by the Board of Governors and conducted by the Chapters in their respective jurisdictions. These fund raising campaigns shall be conducted independently of other fund drives and service needs.

SECTION 12. The Board of Governors shall promulgate rules and regulations for the organization of local units of the Philippine National Red Cross to be known as Chapters. Said rules and regulations shall fix the relationship of the Chapters to the Corporation, define their territorial jurisdictions, and determine the number of delegates for each chapter based on population, fund campaign potentials and service needs.

SECTION 13. The Corporation shall, at the end of every calendar year submit to the President of the Philippines an annual report containing the activities of the Corporation showing its financial condition, the receipts and disbursements.

SECTION 14. It shall be unlawful for any person to solicit, collect or receive money, materials, or property of any kind by falsely representing or pretending himself to be a member, agent or representative of the Philippine National Red Cross.

SECTION 15. The use of the name Red Cross is reserved exclusively to the Philippine National Red Cross and the use of the emblem of the red Greek cross on a white ground is reserved exclusively to the Philippine National Red Cross, medical services of the Armed Forces of the Philippines and such other medical facilities or other institutions as may be authorized by the Philippine National Red Cross as provided under Article 44 of the Geneva Conventions. It shall be unlawful for any other person or entity to use the words Red Cross or Geneva Cross or to use the emblem of the red Greek cross on a white ground or any designation, sign, or insignia constituting an imitation thereof for any purpose whatsoever.

SECTION 16. As used in this Decree, the term person shall include any legal person, group, or legal entity whatsoever nature, and any person violating any section of this Article shall, upon conviction therefore be liable to a find of not less than one thousand pesos or imprisonment for a term not exceeding one year, or both, at the discretion of the court, for each and every offense. In case the violation is committed by a corporation or association, the penalty shall devolve upon the president, director or any other officer responsible for such violation.

SECTION 17. All acts or parts of acts which are inconsistent with the provisions of this Decree are hereby repealed.

Sections 2 to 17 of R.A. No. 95, as amended, are not separable from Section 1, the provision creating and incorporating the PNRC, and cannot, by themselves, stand independently as law. The PNRC Charter obviously does not contain a separability clause.

The constitutionality of

a law is presumed

Two other important points militate against the declaration of Section 1 of the PNRC Charter as invalid and unconstitutional, namely: (1) respondent does not question the constitutionality of the said provision; and (2) every law enjoys the presumption of constitutionality.

Settled is the doctrine that all reasonable doubts should be resolved in favor of the constitutionality of a statute. [33] The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose thereof.[34] Justice Carpio, in Kapisanan ng mga Kawani ng Energy Regulatory Board v. Barin,[35] even echoes the principle that “to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution.”

Here, as in Camporedondo and Baluyot, there is no clear showing that the PNRC Charter runs counter to the Constitution. And, again in the same tone as in Montesclaros v. Commission on Elections, “[the parties] are not even assailing the constitutionality of [the PNRC Charter].” A becoming courtesy to a co-equal branch should thus impel this Court to refrain from unceremoniously invalidating a legislative act.

Deleterious effects will result

if PNRC is declared a private

corporation, among which are

its consequent destruction as

an institution and the Republic’s

shirking its obligation under

the Geneva Convention

The hypothesis that PNRC is a private corporation has far-reaching implications. As mentioned earlier, it will be a reversal of the doctrines laid down in Camporedondo and Baluyot, and it will have an unsettling ripple effect on other numerous decisions of the Court, including those dealing with the jurisdiction of the CSC and the authority of the COA.

Not only that. If PNRC is considered as a private corporation, then, this will lead to its ultimate demise as an institution. Its employees will no longer be covered by the Government Service Insurance System. It can no longer be extended tax exemptions and official immunity and it cannot anymore be given support, financial or otherwise, by the National Government, the local government units and the PCSO; because these will violate not only the equal protection clause in the Constitution, but also penal statutes.

And if PNRC is consequently obliterated, the Republic will be shirking its responsibilities and obligations under the Geneva Convention.

This Court then has to be very careful in the resolution of this case and in making a declaration that will have unintended yet deleterious consequences. The Court must not arbitrarily declare a law unconstitutional just to save a single individual from the unavoidable consequences of his transgression of the Constitution, even if it be unintentional and done in good faith.

The respondent holds two

incompatible offices

in violation of the Constitution

Section 13, Article VI of the Constitution explicitly provides that “no Senator or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency or instrumentality thereof, including [GOCCs] or their subsidiaries, during his term without forfeiting his seat.”[36] In Adaza v. Pacana, Jr.,[37] the Court, construing a parallel provision in the 1973 Constitution, has ruled that—

The language used in the above-cited section is plain, certain and free from ambiguity. The only exceptions mentioned therein are the offices of prime minister and cabinet member. The wisdom or expediency of the said provision is a matter which is not within the province of the Court to determine.

A public office is a public trust. It is created for the interest and the benefit of the people. As such, a holder thereof “is subject to such regulations and conditions as the law may impose” and “he cannot complain of any restrictions which public policy may dictate on his holding of more than one office.” It is therefore of no avail to petitioner that the system of government in other states allows a local elective official to act as an elected member of the parliament at the same time. The dictate of the people in whom legal sovereignty lies is explicit. It provides no exceptions save the two offices specifically cited in the above-quoted constitutional provision. Thus, while it may be said that within the purely parliamentary system of government no incompatibility exists in the nature of the two offices under consideration, as incompatibility is understood in common law, the incompatibility herein present is one created by no less than the constitution itself. In the case at bar, there is no question that petitioner has taken his oath of office as an elected Mambabatas Pambansa and has been discharging his duties as such. In the light of the oft-mentioned constitutional provision, this fact operated to vacate his former post and he cannot now continue to occupy the same, nor attempt to discharge its functions.[38]

There is no doubt that the language in Section 13, Article VI is unambiguous; it requires no in-depth construction. However, as the constitutional provision is worded at present, the then recognized exception adverted to in Adaza, i.e., offices of prime minister and cabinet member, no longer holds true given the reversion to the presidential system and a bicameral Congress in the 1987 Constitution. There remains, however, a single exception to the rule. Civil Liberties Union v. Executive Secretary,[39] reiterated in the fairly recent Public Interest Center, Inc. v. Elma,[40] recognizes that a position held in an ex officio capacity does not violate the constitutional proscription on the holding of multiple offices. Interpreting the equivalent section in Article VII on the Executive Department,[41] the Court has decreed in Civil Liberties that—

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex officio capacity as provided by law and as required by the primary functions of said officials’ office. The reason is that these posts do 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. x x x

x x x x

x x x x The term ex officio means “from office; by virtue of office.” It refers to an “authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position.” Ex officio likewise denotes an “act done in an official character, or as a consequence of office, and without any other appointment or authority other than that conferred by the office.” An ex officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. x x x

x x x x

The ex officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. x x x[42]

In the instant case, therefore, we must decide whether the respondent holds the chairmanship of PNRC in an ex officio capacity. Presidential Decree (P.D.) No. 1264, amending R.A. No. 95, provides for the composition of the governing authority of the PNRC and the manner of their appointment or election, thus:

Section 6. The governing powers and authority shall be vested in a Board of Governors composed of thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall be elected by chapter delegates in biennial conventions and the remaining six shall be elected by the twenty-four members of the Board already chosen. At least one but not more than three of the Presidential appointees shall be chosen from the Armed Forces of the Philippines.

Section 7. The President of the Philippines shall be the Honorary President of the Philippine National Red Cross. The officers shall consist of a Chairman, a Vice-Chairman, a Secretary, a Treasurer, a Counselor, an Assistant Secretary and an Assistant Treasurer, all of whom shall be elected by the Board of Governors from among its membership for a term of two years and may be re-elected. The election of officers shall take place within sixty days after all the members of the Board of Governors have been chosen and have qualified.

Nowhere does it say in the law that a member of the Senate can sit in an ex officio capacity as chairman of the PNRC Board of Governors. Chairmanship of the PNRC Board is neither an extension of the legislative position nor is it in aid of legislative duties.[43] Likewise, the position is neither derived from one being a member of the Senate nor is it annexed to the Senatorial position. Stated differently, the PNRC chairmanship does not flow from one’s election as Senator of the Republic. Applying Civil Liberties, we can then conclude that the chairmanship of the PNRC Board is not held in an ex officio capacity by a member of Congress.

The fact that the PNRC Chairman of the Board is not appointed by the President[44] and the fact that the former does not receive any compensation[45] do not at all give the said position an ex officio character such that the occupant thereof becomes exempt from the constitutional proscription on the holding of multiple offices. As held in Public Interest Center, the absence of additional compensation being received by virtue of the second post is not enough, what matters is that the second post is held by virtue of the functions of the first office and is exercised in an ex officio capacity.[46] Hence, Senator Gordon, in assuming the chairmanship of the PNRC Board of Governors while being a member of the Senate, is clearly violating Section 13, Article VI of the Constitution. While we can only hypothesize on the extent of the incompatibility between the two offices—as stated in petitioners’ memorandum, Senator Gordon’s holding of both offices may result in a divided focus of his legislative functions, and in a conflict of interest as when a possible amendment of the PNRC Charter is lobbied in Congress or when the PNRC and its officials become subjects of legislative inquiries.[47] Let it be stressed that, as in Adaza, the incompatibility herein present is one created by no less than the Constitution itself.[48]

I hasten to add that Senator Gordon’s chairmanship of the PNRC Board cannot be likened to the membership of several legislators in the Legislative-Executive Development Advisory Council, in the Council of State, in the Board of Regents of state universities, and in the Judiciary, Executive and Legislative Advisory and Consultative Council, because, in these bodies, the membership of the legislators is held in an ex officio capacity or as an extension of their legislative functions.[49]

IN VIEW OF THE FOREGOING, I vote to GRANT the petition.

ANTONIO EDUARDO B. NACHURA

[1] Rollo, pp. 3-5.

[2] See Del Rosario v. Montaña, G.R. No. 134433, May 28, 2004, 430 SCRA 109, 116; Del Mar v. Philippine Amusement and Gaming Corp., 400 Phil. 307, 326-327; Sen. Defensor-Santiago v. Guingona, Jr., 359 Phil. 276, 295-296 (1998).

[3] G.R. No. 170338, December 23, 2008.

[4] G.R. No. 168338, February 15, 2008, 545 SCRA 441.

[6] Garcillano v. the House of Representatives Committees on Public Information, Public Order and Safety, National Defense and Security, Information and Communications Technology, and Suffrage and Electoral Reforms, supra note 3.

[7] <http://www.redcross.org.ph/Site/PNRC/History.aspx> (visited July 9, 2009).

[10] Entitled “An Act To Incorporate the Philippine National Red Cross.”

[11] 464 Phil. 439 (2004).

[12] Id. at 454-455; citations omitted and emphasis supplied.

[14] The amendatory laws are Republic Act No. 855 (January 11, 1953), Republic Act No. 6373 (August 16, 1971) and Presidential Decree No. 1264 (December 15, 1977).

[15] 370 Phil. 901, 906 (1999).

[16] 382 Phil. 131 (2000)

[18] Emphasis supplied.

[19] 377 Phil. 1019 (1999).

[20] See for instance Proclamation No. 50, which categorized GOCCs into parent and subsidiary corporations, cited in Philippine National Construction Corporation v. Pabion, et al., supra.

[21] See also the definition of a GOCC in Section 2(a) of Administrative Order No. 59 (December 5, 1988), which provides:

“x x x

(a) Government-owned and/or controlled corporation, hereinafter referred to as GOCC or government corporation, is a corporation which is created by special law or organized under the Corporation Code in which the Government, directly or indirectly, has ownership of the majority of the capital or has voting control; Provided that an acquired asset corporation as defined in the next paragraph shall not be considered as GOCC or government corporation.”

[22] Underscoring supplied.

[23] Emphasis supplied.

[24] See Section 4(c) of R.A. No. 95, as amended.

[26] 385 U.S. 355, 358-360; 87 S.Ct. 464, 467 (1966).

[28] 829 F.Supp. 1290, 1311 (1993)

[29] 826 F.Supp. 412, 413-414 (1993).

[31] 43 F.3d 678 91994); 516 U.S. 822 (1995); 516 U.S. 1002, 116 S.Ct. 550 (1995).

[32] Section 16, Article XII, Philippine Constitution.

[33] Beltran v. Secretary of Health, G.R. Nos. 133640, 133661 and 139147, November 25, 2005, 476 SCRA 168, 199.

[34] Perez v. People, G.R. No. 164763, February 12, 2008, 544 SCRA 532, 565.

[35] G.R. No. 150974, June 29, 2007, 526 SCRA 1, 8.

[36] The full text of the provision reads:

“Section 13. No Senator or Member of the House of Representatives may 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, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.”

[37] No. L-68159, March 18, 1985, 135 SCRA 431.

[38] Id. at 434-435; emphasis supplied.

[39] G.R. No. 83896, February 22, 1991, 194 SCRA 317.

[40] G.R. No. 138965, June 30, 2006, 494 SCRA 53, 63-64.

[41] Section 13, Article VII of the Constitution provides in full:

“Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

“The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or head of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.”

[42] Civil Liberties Union v. Executive Secretary, supra note 5, at 331-335; emphasis supplied.

[43] See Cruz, Philippine Political Law, 1998 ed., p. 129.

[44] See Section 7 of P.D. No. 1264.

[45] Section 10 of P.D. No. 1264 provides:

“Section 10. The members of the Board of Governors, as well as the officers of the corporation, shall serve without compensation. The compensation of the paid staff of the corporation shall be determined by the Board of Governors upon the recommendation of the Secretary General.”

[46] Public Interest Center v. Elma, supra note 6, at 63.

[48] Adaza v. Pacana, Jr., supra note 3.

[49] See R.A. No. 7640, Executive Order (E.O.) No. 305, Series of 1987; R.A. No. 8292, R.A. No. 9500, and the JELAC Memorandum of Agreement.