G.R. No. 184740 – 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.
VILLARAMA, JR., J.
Facts
In October 2006, PGMA appointed Bautista as DOTC Underscretary. In September 2009, Bautista was designated MARINA OIC.
On October 1, 2008, Funa filed the instant case asserting that:
- MARINA Administrator is not ex-officio to the post of DOTC Undersecretary, so the exception cannot be availed;
- Temporary designation is not a recognized exception from the constitutional prohibition that the President, VP, Cabinet members, their deputies and assistants shall not hold any other office or employment during their tenure (except as provided in the Constitution);
- The posts as DOTC Undersecretary and MARINA Administrator were incompatible; no more counter-checking;
- The issue is capable of repetition, yet evading review.
On June 5, 2009, During pendency of the petition, Bautista was appointed Administrator of MARINA.
Issues
- Does the petitioner have locus standi? (this only Judicial Review requisite questioned by respondent)
- Is the issue moot by the respondent’s appointment as MARINA Administrator and subsequent relinquishment of her post as DOTC Underscretary?
- Is respondent Bautista barred from holding another office (MARINA Administrator) by virtue of her appointment as DOTC Undersecretary?
- Will the respondent be allowed to hold the office if she is merely designated and not appointed?
Ruling and Discussion
- Yes. The petitioner has legal standing.
The petitioner in alleging a grave violation of the constitutional prohibition, filing a suit as a citizen gave him legal standing to the issue at bar.
The question on standing is whether such parties have “alleged such a personal stake in the outcome of the controversy…” - Yes. The issue was rendered moot by the respondent’s appointment as MARINA Administrator and subsequent relinquishment of her post as DOTC Underscretary. However, the mootness of the petition does not bar its resolution.
Courts will decide a question otherwise moot if it is capable of repetition yet evading review. - Yes. The respondent, being appointed as the DOTC Undersecretary is covered by the stricter prohibition under VII(13).
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. The only exceptions found in the Constitution were: (a) VII(3), par. 2; (b) VII(7), pars. 2 and 3; and (c) VIII(8), par. 1.
The respondent 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 (will fall under IX-B(7). Given the vast responsibilities and scope of administration of MARINA, the Court is not persuaded that respondent’s designation as OIC thereof was merely an imposition of additional duties related to her primary position as DOTC Undersecretary for Maritime Transport.
The general rule applicable to all elective and appointive public officials and employees is found on Sec. 7, Art. IX-B:
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.
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 (stricter because they exercise more powers – the provision is not qualified by ‘holding office in the government, as above):
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.
The ConCom, in providing another prohibition in VII(13), notwithstanding the blanket prohibition provided in IX-B(7) above, shows the intention to impose stricter prohibitions on covered officials, to prevent concentration of powers in the Executive department and abuse of said power rampant during the Marcos regime. - No. The respondent will not be allowed to hold the office if she is merely designated and not appointed.
The prohibition on holding multiple offices 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. What is relevant is the actual discharge of functions and duties of the office.
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. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official.
Dispositive
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.