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 MARINA on September 1, 2008.  On January 5, 2009, she was appointed as Administrator of MARINA, the duties and responsibilities of which position she assumed on February 2, 2009 following her relinquishment of the position of DOTC Undersecretary.         

 

          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 September 1, 2008 until she assumed her subsequent appointment as MARINA Administrator on February 2, 2009.

 

          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 MARINA.

 

 

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, September 8, 2004, 437 SCRA 655, 670.

[2]               Vide Topacio v. Ong, G.R. No. 179895, December 18, 2008, 574 SCRA 817, 830.

[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 los Angeles, 37 Phil. 186, 192 (1917).

[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, February 22, 1991, 194 SCRA 317.

[9]               Id. at 339.

[10]             G.R. No. 138965, June 30, 2006, 494 SCRA 53.

[11]             G.R. No. 138965, March 5, 2007, 517 SCRA 336, 339.   

[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 Union v. Executive Secretary, supra note 8 at 339.

[17]             Trans-Asia Shipping Lines, Inc.-Unlicensed Crews Employees Union - Assisted Labor Unions (Tasli-Alu) v. Court of Appeals, G.R. No. 145428, July 7, 2004, 433 SCRA 610, 621.