CONSTI LAW

PROHIBITION/INHIBITIONS

Republic vs. Sandiganbayan, GR No. 152154, July 15, 2003

Corrected Version

Topic: Prohibitions/Inhibitions of President of the Philippines

FACTS:
One of the foremost concerns of the Aquino Government in February 1986 was the recovery
of the unexplained or ill-gotten wealth reputedly amassed by former President and Mrs.
Ferdinand E. Marcos, their relatives, friends and business associates. Thus, the very first
Executive Order (EO) issued by then President Corazon Aquino upon her assumption to office
after the ouster of the Marcoses was EO No. 1, issued on February 28, 1986. It created the
Presidential Commission on Good Government (PCGG) and charged it with the task of assisting
the President in the "recovery of all ill-gotten wealth accumulated by former President Ferdinand
E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in
the Philippines or abroad, including the takeover or sequestration of all business enterprises and
entities owned or controlled by them during his administration, directly or through nominees, by
taking undue advantage of their public office and/or using their powers, authority, influence,
connections or relationship."
In all the alleged ill-gotten wealth cases filed by the PCGG, this Court has seen fit to set
aside technicalities and formalities that merely serve to delay or impede judicious resolution.
This Court prefers to have such cases resolved on the merits at the Sandiganbayan. But
substantial justice to the Filipino people and to all parties concerned, not mere legalisms or
perfection of form, should now be relentlessly and firmly pursued. Almost two decades have
passed since the government initiated its search for and reversion of such ill-gotten wealth. The
definitive resolution of such cases on the merits is thus long overdue. If there is proof of illegal
acquisition, accumulation, misappropriation, fraud or illicit conduct, let it be brought out now.
Let the ownership of these funds and other assets be finally determined and resolved with
dispatch, free from all the delaying technicalities and annoying procedural sidetracks.

Issue:
Whether or not President Marcos committed prohibited and inhibited acts as a president during
his term of office

Held:
Yes

Ratio:
It is settled that judicial admissions may be made: (a) in the pleadings filed by the parties;
(b) in the course of the trial either by verbal or written manifestations or stipulations; or (c) in
other stages of judicial proceedings, as in the pre-trial of the case.[82] Thus, facts pleaded in the
petition and answer, as in the case at bar, are deemed admissions of petitioner and respondents,
respectively, who are not permitted to contradict them or subsequently take a position contrary to
or inconsistent with such admissions.[83]
 The sum of $304,372.43 should be held as the only known lawful income of respondents
since they did not file any Statement of Assets and Liabilities (SAL), as required by law, from
which their net worth could be determined. Besides, under the 1935 Constitution, Ferdinand E.
Marcos as President could not receive any other emolument from the Government or any of its
subdivisions and instrumentalities.[84] Likewise, under the 1973 Constitution, Ferdinand E.
Marcos as President could not receive during his tenure any other emolument from the
Government or any other source.[85] In fact, his management of businesses, like the
administration of foundations to accumulate funds, was expressly prohibited under the 1973
Constitution:
Article VII, Sec. 4(2) The President and the Vice-President shall not, during their tenure, hold
any other office except when otherwise provided in this Constitution, nor may they practice any
profession, participate directly or indirectly in the management of any business, or be financially
interested directly or indirectly in any contract with, or in any franchise or special privilege
granted by the Government or any other subdivision, agency, or instrumentality thereof,
including any government owned or controlled corporation.
Article VII, Sec. 11 No Member of the National Assembly shall appear as counsel before any
court inferior to a court with appellate jurisdiction, x x x. Neither shall he, directly or indirectly,
be interested financially in any contract with, or in any franchise or special privilege granted by
the Government, or any subdivision, agency, or instrumentality thereof including any
government owned or controlled corporation during his term of office. He shall not intervene in
any matter before any office of the government for his pecuniary benefit.
Article IX, Sec. 7 The Prime Minister and Members of the Cabinet shall be subject to the
provision of Section 11, Article VIII hereof and may not appear as counsel before any court or
administrative body, or manage any business, or practice any profession, and shall also be
subject to such other disqualification as may be provided by law.
Their only known lawful income of $304,372.43 can therefore legally and fairly serve as
basis for determining the existence of a prima facie case of forfeiture of the Swiss funds.
Respondents argue that petitioner was not able to establish a prima facie case for the
forfeiture of the Swiss funds since it failed to prove the essential elements under Section 3,
paragraphs (c), (d) and (e) of RA 1379. As the Act is a penal statute, its provisions are mandatory
and should thus be construed strictly against the petitioner and liberally in favor of respondent
Marcoses.
We hold that it was not for petitioner to establish the Marcoses other lawful income or
income from legitimately acquired property for the presumption to apply because, as between
petitioner and respondents, the latter were in a better position to know if there were such other
sources of lawful income. And if indeed there was such other lawful income, respondents should
have specifically stated the same in their answer. Insofar as petitioner Republic was concerned, it
was enough to specify the known lawful income of respondents.

Section 9 of the PCGG Rules and Regulations provides that, in determining prima
facie evidence of ill-gotten wealth, the value of the accumulated assets, properties and other
material possessions of those covered by Executive Order Nos. 1 and 2
must be out of proportion to the known lawful income of such persons. The respondent Marcos
couple did not file any Statement of Assets and Liabilities (SAL) from which their net worth
could be determined. Their failure to file their SAL was in itself a violation of law and to allow
them to successfully assail the Republic for not presenting their SAL would reward them for
their violation of the law.

Civil Liberties Union v. Executive Secretary (G.R. No. 83896)

FACTS:

The two petitions in this case sought to declare unconstitutional Executive Order No.
284 issued by President Corazon C. Aquino. The assailed law provides that:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the
Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not more than two positions in the
government and government corporations and receive the corresponding compensation therefor;
Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.

The petitioners alleged that the cited provision of EO 284 contravenes the provision of
Sec. 13, Article VII which declares:

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 petitioners maintained that the phrase “unless otherwise provided in this
Constitution” used in Section 13 of Article VII meant that the exception must be expressly
provided in the Constitution.
 Public respondents, on the other hand, maintain that the phrase “unless otherwise
provided in the Constitution” in Section 13, Article VII makes reference to Section 7, par. (2),
Article I-XB insofar as the appointive officials mentioned therein are concerned. The provision
relied upon by the respondents provides:

Sec. 7. . . . . .

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.

ISSUE No. 1 : Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made
for appointive officials in general under Section 7, par. (2), Article I-XB?

No.

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.

Although Section 7, Article I-XB 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. 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 I-XB 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.

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.

ISSUE No. 2: Does the prohibition apply to positions held in ex officio capacity?

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 no comprise “any other office” within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and functions on
said officials. The term ex-officio means “from office; by virtue of office.” Ex-officio likewise
denotes an “act done in an official character, or as a consequence of office, and without any other
appointment or authority than that conferred by the office.” The additional duties must not only
be closely related to, but must be required by the official’s primary functions. If the functions
required to be performed are merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such additional functions would fall
under the purview of “any other office” prohibited by the Constitution.

ISSUE No. 3: Can the respondents be obliged to reimburse the perquisites they have received
from the offices they have held pursuant to EO 284?

During their tenure in the questioned positions, respondents may be considered de

facto officers and as such entitled to emoluments for actual services rendered. It has been held
that “in cases where there is no de jure officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary, fees and other
compensations attached to the office. Any per diem, allowances or other emoluments received by
the respondents by virtue of actual services rendered in the questioned positions may therefore be
retained by them.

Overall, Executive Order No. 284 is unconstitutional as it actually allows a member of

the cabinet, undersecretary or assistant secretary or other appointive officials of the Executive
Department 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.

DENNIS A. B. FUNA v. EXECUTIVE SECRETARY EDUARDO R. ERMITA, GR No.

184740, 2010-02-11
Facts:
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)
Bautista was designated as Undersecretary for Maritime
Transport of the department under Special Order No. 2006-171 dated October 23, 2006
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
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
Issues:
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
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
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.
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
Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and
MARINA Administrator... 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.
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.
Ruling:
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.
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.
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.
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.
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.
Principles:
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.
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.
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.