G.R.
No. 184740 DENNIS A. B. FUNA versus EXECUTIVE SECRETARY EDUARDO
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 Autbority (MARINA)
Promulgated:
February
11, 2010
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CONCURRING OPINION
CARPIO MORALES, J.:
I concur with Justice Martin
Villarama, Jr. in his ponencia declaring unconstitutional the
designation of respondent Maria Elena Bautista (Bautista) as Officer-in-Charge
(OIC) of the Office of the Administrator of the Maritime Industry Authority (MARINA)
in a concurrent capacity with her position as Undersecretary for Maritime
Transport of the Department of Transportation and Communications (DOTC).
A quick rundown of the facts shows
that Bautista was appointed as DOTC Undersecretary in October 2006 and was
designated as OIC Administrator of
Bautista thus now claims mootness of
the case. 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. Aside from the formulation of controlling
principles, the grave violation of the Constitution, and the susceptibility of
recurrence as pointed out by Justice Villarama, there is the presence of practical
use or value to impel the Court to take cognizance of this case.
Its mootness
notwithstanding, the present petition which involves the issue of holding dual
positions still calls for a resolution, for there remains the practical use or
value of identifying whether one was a de facto or de jure
officer in terms of the legal signification of the public officer’s acts, remuneration
and accountability.
Bautista, during her tenure as OIC
Administrator of MARINA, cannot be considered as a de jure officer due
to the unconstitutionality of the designation.
At best, she can be regarded as a de facto officer in such
capacity from
National Amnesty Commission v.
Commission on Audit[1] espouses
the view that one who was not appointed but merely designated to act as such
cannot be considered as a de facto officer. To sustain this view, however, would place in
limbo the legal effects of a designated officer’s acts and would negate the raison
d’etre of the de facto doctrine which is basically to protect the
sanctity of dealings by the public with persons whose ostensible authority
emanates from the State.[2] To deduce that Bautista, as a designated OIC Administrator,
was not a de facto officer would effectively categorize her as an
intruder or a mere volunteer, which she was not because she had a color of right
or authority.
A de facto officer need not
show that she was elected or “appointed in its strict sense,” for a showing of
a color of right to the office suffices.
Designation may be loosely defined as
an appointment because it likewise involves the naming of a particular person
to a specified public office.[3] In fact, even without a known appointment or
election, the de facto doctrine comes into play if the duties of the
office were exercised under such circumstances of reputation or acquiescence as
were calculated to induce people,
without inquiry, to submit to or invoke his action, supposing him to be the
officer he assumed to be.[4]
I submit that the pronouncement in National Amnesty Commission comes in the
form of an obiter dictum[5] since
it was not necessary to the disposition of that case where the Court disallowed
the payment of honoraria to the representatives of the ex-officio
members of the National Amnesty Commission and ruled that the restrictions[6] covering
the ex-officio members apply with equal force to their representatives
since the representative cannot have a better right than his or her principal.
Civil
Liberties Union vis-à-vis Public Interest Center
With respect to the legal complexion
of Bautista’s position as DOTC Undersecretary, there is a need to explore the
implication of nullifying the holding of a second position.
Where a person is prohibited from
holding two offices at the same time, his appointment or election to a second
office may operate to vacate the first or he may be ineligible
for the second.[7]
The proposition that a person shall be
declared ineligible for the second position was followed in Civil
Liberties Union v. Executive Secretary[8] where
the Court ordered certain cabinet members, except those who were no longer
occupying the positions complained of, “to immediately relinquish their
other offices or employment, as herein defined, in the government,
including government-owned and controlled corporations and their subsidiaries.”[9]
Under
this principle, Bautista would only be
directed to relinquish the post of MARINA Administrator, if still being
occupied, and concentrate on her functions as DOTC Undersecretary.
The other proposition – that a person
who assumes a second and incompatible office is deemed to have resigned from
the first office – was applied in Public Interest Center, Inc. v. Elma[10] where
the Court, by Resolution of March 5, 2007, clarified that the ruling did not
render both appointments void. It held
that “[f]ollowing the common-law rule on incompatibility of offices, respondent
Elma had, in effect, vacated his first office as PCGG Chairman when
he accepted the second office”[11] as Chief
Presidential Legal Counsel.
Under
this rule, Bautista would be deemed to have vacated her first office as DOTC
Undersecretary when she accepted the post of OIC Administrator of
The Implications of the Two
Propositions
Upon
a closer examination of Public Interest Center, Inc. which espouses the ipso facto vacancy rule,
there appears a vacuity in such a situation where the Court nullifies the
appointment to a second office for being unconstitutional and likewise deems the
first office as having been vacated. In
the end, the public officer is left without an office.
In
the present case, Bautista eventually voluntarily gave up her first post
when she was subsequently appointed as MARINA Administrator,
after five months of concurrently discharging the functions of an appointed
DOTC Undersecretary and a designated MARINA Officer-in-Charge. It bears noting that what is being nullified is
her designation and not the subsequent appointment as Administrator. Her current position as MARINA Administrator
was conferred not by virtue of the assailed designation but by the subsequent appointment which effectively
stands. Thus, notwithstanding the
implication of Public Interest Center, the scenario of vacancy will not
occur in this peculiar case.
With
respect to the proposition under Civil Liberties Union – ineligibility
for the second position only – the only peculiarity of the present case is
that the reverse thing transpired in the meantime, with Bautista giving up the
Undersecretary position and accepting the subsequent regular appointment as
MARINA Administrator. The supposed
continued validity of her position as DOTC Undersecretary has been rendered
nugatory by her voluntary relinquishment of said position.
Further
quandary lies in the five-month interregnum.
On
the one hand, following the Public Interest Center rule that deems her
first office vacated upon her holding of a second position, Bautista had become
a de facto DOTC Undersecretary from September 1, 2008 (when she assumed
the position of MARINA OIC Administrator) until she resigned therefrom. On the other hand, following the Civil
Liberties Union rule that merely deems her ineligible for the second
position, Bautista remained a de jure DOTC Undersecretary during her
entire tenure as such.
IN
FINE, I submit that the two cases provide sound formulations for two distinct situations. The Civil
Liberties Union rule applies to cases involving dual or multiple
positions under Section 13 of Article VII of the Constitution[12]
while the Public Interest Center
rule covers those under Section 7 of Article IX-B of the Constitution.[13]
The
Civil Liberties Union formulation rendering the public officer
ineligible for the second position comes into play, since Bautista was a
department undersecretary, a position covered by the prohibition under Section
13, Article VII of the Constitution. This
principle underscores the primacy of the “President, Vice-President, the
Members of the Cabinet, and their deputies or assistants” as a class by itself,
necessitating the disallowance of any implied vacancy in such offices.
The
Pubic Interest Center rule of implied resignation does not apply since
it speaks of “incompatibility of office” which is irrelevant in determining a violation
of Section 13, Article VII of the Constitution.
It has also been observed that the
rule of ipso facto vacancy of a public office by acceptance of a second
public office does not apply where, under applicable constitutional or
statutory provisions, the holder of a public office is rendered ineligible for
a specified time for a second public office; under such circumstances it is the
second office which is considered vacant rather than the first office.[14]
I,
therefore, vote to GRANT the petition and further declare that Bautista was
a de facto officer during her brief stint as MARINA OIC Administrator
and a de jure DOTC Undersecretary during her entire tenure as such.
Concluding Words
The
present case, in which the constitutional question posed is no longer an
unchartered sea, should once again remind all civil servants of the rationale
behind the general rule against the holding of multiple positions.
One
manifest purpose of a restriction on multiple holdings is to prevent offices of
public trust from accumulating in a single person.[15] Indeed, no one can claim a monopoly of
skills.
Being head of an executive
department is no mean job. It is more
than a full-time job, requiring full attention, specialized knowledge, skills
and expertise. If maximum benefits are
to be derived from a department head's ability and expertise, he should be
allowed to attend to his duties and responsibilities without the distraction of
other governmental offices or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions of responsibility, which
may result in haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage
of our national and economic development, far outweigh the benefits, if any,
that may be gained from a department head spreading himself too thin and taking
in more than what he can handle.[16]
The
same norm holds true to that of a DOTC Undersecretary for Maritime Transport. Now as always, the country cannot afford to
have a public official who cannot devote full time on the crucial problems,
contemporary or longstanding, not to mention the perennial sea tragedies, that
have beleaguered the maritime industry, an industry that is “indubitably imbued
with national interest.”[17]
CONCHITA CARPIO MORALES
Associate
Justice
[1] G.R.
No. 156982,
[2] Vide
Topacio v. Ong, G.R. No. 179895,
[3] Binamira v. Garrucho, Jr., G.R. No. 92008, July 30, 1990, 188 SCRA 154, 159, where the person is merely designated and not appointed, the implication is that he shall be hold the office only in a temporary capacity and may be replaced at will by the appointing authority.
[4] Vide
Lino Luna v. Rodriguez and De
[5] An obiter dictum has been defined as an opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it. It is a remark made, or opinion expressed, by a judge, in his decision upon a cause, "by the way," that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such are not binding as precedent. (Delta Motors Corporation v. Court of Appeals, G.R. No. 121075, July 24, 1997, 276 SCRA 212, 223).
[6] With respect to the exception enunciated in the Civil Liberties Union case allowing 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.
[7] Hector De Leon & Hector De Leon, Jr., The Law on Public Officers and Election Law. 45 (2000).
[8] G.R.
No. 83896,
[9]
[10] G.R. No. 138965,
[11] G.R. No. 138965,
[12] 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. x x x.
[13] SECTION 7. No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.
[14] 63C Am. Jur. 2d §61 p. 504, that is, not merely on the ground of the incompatibility of office.
[15] Supra note 7 at 45.
[16] Civil Liberties
[17] Trans-Asia Shipping Lines, Inc.-Unlicensed
Crews Employees