EN BANC

[G.R. No. 184740. February 11, 2010.]

DENNIS A. B. FUNA, petitioner, vs. EXECUTIVE SECRETARY
EDUARDO R. ERMITA, Oce of the President, SEC. LEANDRO
R. MENDOZA, in his ocial capacity as Secretary of the
Department of Transportation and Communications, USEC.
MARIA ELENA H. BAUTISTA, in her ocial capacities as
Undersecretary of the Department of Transportation and
Communications and as Ocer-in-Charge of the Maritime
Industry Authority (MARINA), respondents.
DECISION
VILLARAMA, JR., J :
p

This is a petition for certiorari, prohibition and mandamus under Rule 65 with
prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction, to declare as unconstitutional the designation of respondent
Undersecretary Maria Elena H. Bautista as Ocer-in-Charge (OIC) of the Maritime
Industry Authority (MARINA).
The Antecedents
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), vice Agustin R. Bengzon. Bautista was designated as
Undersecretary for Maritime Transport of the department under Special Order No.
2006-171 dated October 23, 2006. 1
On September 1, 2008, following the resignation of then MARINA Administrator
Vicente T. Suazo, Jr., Bautista was designated as Ocer-in-Charge (OIC), Oce of
the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary. 2
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned
citizen and lawyer, led 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.
On January 5, 2009, during the pendency of this petition, Bautista was appointed
Administrator of the MARINA vice Vicente T. Suazo, Jr. 3 and she assumed her duties
and responsibilities as such on February 2, 2009. 4
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, as
interpreted and explained by this Court in Civil Liberties Union v. Executive
Secretary, 5 and reiterated in Public Interest Center, Inc. v. Elma. 6 He points out
that while it was claried in Civil Liberties Union that the prohibition does not apply
to those positions held in ex-ocio capacities, the position of MARINA Administrator
is not ex-o cio to the post of DOTC Undersecretary, as can be gleaned from the
provisions of its charter, Presidential Decree (P.D.) No. 474, 7 as amended by
Executive Order (EO) No. 125-A. 8 Moreover, the provisions on the DOTC in the
Administrative Code of 1987, specically Sections 23 and 24, Chapter 6, Title XV,
Book IV do not provide any ex-ocio role for the undersecretaries in any of the
department's attached agencies. The fact that Bautista was extended an
appointment naming her as OIC of MARINA shows that she does not occupy it in an
ex-o cio capacity since an ex-ocio position does not require any "further warrant
or appoint." 9
cTCaEA

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, citing the rationale in Achacoso v.
Macaraig. 10 Section 13 Article VII of the 1987 Constitution does not enumerate
temporariness as one (1) of the exceptions thereto. And since a temporary
designation does not have a maximum duration, it can go on for months or years. In
eect, the temporary appointment/designation can eectively circumvent the
prohibition. Allowing undersecretaries or assistant secretaries to occupy other
government posts would open a Pandora's Box as to let them feast on choice
government positions. Thus, in case of vacancy where no permanent appointment
could as yet be made, the remedy would be to designate one (1) of the two (2)
Deputy Administrators as the Acting Administrator. Such would be the logical
course, the said ocers being in a better position in terms of knowledge and
experience to run the agency in a temporary capacity. Should none of them merit
the President's condence, then the practical remedy would be for Undersecretary
Bautista to rst resign as Undersecretary in order to qualify her as Administrator of
MARINA. As to whether she in fact does not receive or has waived any
remuneration, the same does not matter because remuneration is not an element
in determining whether there has been a violation of Section 13, Article VII of the
1987 Constitution. 11
Petitioner likewise asserts the incompatibility between the posts of DOTC
Undersecretary and MARINA Administrator. The reason is that with respect to the
aairs in the maritime industry, the recommendations of the MARINA may be the
subject of counter or opposing recommendations from the Undersecretary for
Maritime Transport. In this case, the DOTC Undersecretary for Maritime Transport
and the OIC of MARINA have become one (1) and the same person. There is no
more checking and counter-checking of powers and functions, and therein lies the
danger to the maritime industry. There is no longer a person above the
Administrator of MARINA who will be reviewing the acts of said agency because the
person who should be overseeing MARINA, the Undersecretary for Maritime
Transport, has effectively been compromised. 12

Finally, petitioner contends that there is a strong possibility in this case that the
challenge herein can be rendered moot through the expediency of simply revoking
the temporary appointment/designation. But since a similar violation can be
committed in the future, there exists a possibility of "evading review," and hence
supervening events should not prevent the Court from deciding cases involving
grave violation of the 1987 Constitution, as this Court ruled in Public Interest
Center. Notwithstanding its mootness therefore, should it occur, there is a
compelling reason for this case to be decided: the issue raised being "capable of
repetition, yet evading review." 13
aSEDHC

On the other hand, the respondents argue that the requisites of a judicial inquiry
are not present in this case. In fact, there no longer exists an actual controversy that
needs to be resolved in view of the appointment of respondent Bautista as MARINA
Administrator eective February 2, 2009 and the relinquishment of her post as
DOTC Undersecretary for Maritime Transport, which rendered the present petition
moot and academic. Petitioner's prayer for a temporary restraining order or writ of
preliminary injunction is likewise moot and academic since, with this supervening
event, there is nothing left to enjoin. 14
Respondents also raise the lack of legal standing of petitioner to bring this suit.
Clear from the standard set in Public Interest Center is the requirement that the
party suing as a taxpayer must prove that he has sucient interest in preventing
illegal expenditure of public funds, and more particularly, his personal and
substantial interest in the case. Petitioner, however, has not alleged any personal or
substantial interest in this case. Neither has he claimed that public funds were
actually disbursed in connection with respondent Bautista's designation as MARINA
OIC. It is to be noted that respondent Bautista did not receive any salary while she
was MARINA OIC. As to the alleged transcendental importance of an issue, this
should not automatically confer legal standing on a party. 15
Assuming for the sake of argument that the legal question raised herein needs to be
resolved, 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. With the resignation of Vicente
T. Suazo, Jr., the position of MARINA Administrator was left vacant, and pending the
appointment of permanent Administrator, respondent Bautista was designated OIC
in a temporary capacity for the purpose of preventing a hiatus in the discharge of
ocial functions. Her case thus falls under the recognized exceptions to the rule
against multiple oces, i.e., without additional compensation (she did not receive
any emolument as MARINA OIC) and as required by the primary functions of the
oce. Besides, Bautista held the position for four (4) months only, as in fact when
she was appointed MARINA Administrator on February 2, 2009, she relinquished her
post as DOTC Undersecretary for Maritime Transport, in acknowledgment of the
proscription on the holding of multiple offices. 16
HITAEC

As to petitioner's argument that the DOTC Undersecretary for Maritime Transport

and MARINA Administrator are incompatible oces, respondents cite the test laid
down in People v. Green , 17 which held that "[T]he oces must subordinate, one
[over] the other, and they must, per se, have the right to interfere, one with the
other, before they are compatible at common law." Thus, respondents point out that
any recommendation by the MARINA Administrator concerning issues of policy and
administration go to the MARINA Board and not the Undersecretary for Maritime
Transport. The Undersecretary for Maritime Transport is, in turn, under the direct
supervision of the DOTC Secretary. Petitioner's fear that there is no longer a person
above the Administrator of MARINA who will be reviewing the acts of said agency
(the Undersecretary for Maritime Transport) is, therefore, clearly unfounded. 18
In his Reply, petitioner contends that respondents' argument on the incompatibility
of positions was made on the mere assumption that the positions of DOTC
Undersecretary for Maritime Transport and the administratorship of MARINA are
"closely related" and is governed by Section 7, paragraph 2, Article IX-B of the 1987
Constitution rather than by Section 13, Article VII. In other words, it was a mere
secondary argument. The fact remains that, incompatible or not, Section 13, Article
VII still does not allow the herein challenged designation. 19
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 oces for Cabinet Members and their deputies
and assistants.
Our Ruling
The petition is meritorious.

Requisites for Judicial Review

The courts' power of judicial review, like almost all other powers conferred by the
Constitution, is subject to several limitations, namely: (1) there must be an actual
case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have "standing" to challenge; he must have a personal and
substantial interest in the case, such that he has sustained or will sustain, direct
injury as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest possible opportunity; and (4) the issue of constitutionality
must be the very lis mota of the case. 20 Respondents assert that the second
requisite is absent in this case.
Generally, a party will be allowed to litigate only when (1) he can show that he has
personally suered some actual or threatened injury because of the allegedly illegal
conduct of the government; (2) the injury is fairly traceable to the challenged
action; and (3) the injury is likely to be redressed by a favorable action. 21 The
question on standing is whether such parties have "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for

illumination of difficult constitutional questions."

22

cETCID

In David v. Macapagal-Arroyo, 23 summarizing the rules culled from jurisprudence,

we held that taxpayers, voters, concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements are met:
(1)cases involve constitutional issues;
(2)for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3)for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4)for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled
early; and
(5)for legislators, there must be a claim that the ocial action complained of
infringes upon their prerogatives as legislators. [EMPHASIS
SUPPLIED.]

Petitioner having alleged a grave violation of the constitutional prohibition against

Members of the Cabinet, their deputies and assistants holding two (2) or more
positions in government, the fact that he led this suit as a concerned citizen
suciently confers him with standing to sue for redress of such illegal act by public
officials.
The other objection raised by the respondent is that the resolution of this case had
been overtaken by events considering the eectivity of respondent Bautista's
appointment as MARINA Administrator eective February 2, 2009 and her
relinquishment of her former position as DOTC Undersecretary for Maritime
Transport.
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. Generally, courts decline jurisdiction over such case or dismiss it on
ground of mootness. 24 However, as we held in Public Interest Center, Inc. v. Elma,
25 supervening events, whether intended or accidental, cannot prevent the Court
from rendering a decision if there is a grave violation of the Constitution. Even in
cases where supervening events had made the cases moot, this Court did not
hesitate to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar, and public. 26
As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as
an exception to the rule on mootness, courts will decide a question otherwise moot
if it is capable of repetition yet evading review. 27 In the present case, the mootness
of the petition does not bar its resolution. The question of the constitutionality of
the President's appointment or designation of a Department Undersecretary as
officer-in-charge of an attached agency will arise in every such appointment. 28
ETaHCD

Undersecretary Bautista's
designation as MARINA
OIC falls under the stricter
prohibition under Section
13, Article VII of the 1987
Constitution.
Resolution of the present controversy hinges on the correct application of Section
13, Article VII of the 1987 Constitution, which provides:
SEC. [Link] President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other oce or
employment during their tenure. They shall not, during said tenure,
directly or indirectly practice any other profession, participate in any
business, or be nancially 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 conict
of interest in the conduct of their office.

On the other hand, Section 7, paragraph (2), Article IX-B reads:

SEC. 7.. . .
Unless otherwise allowed by law or the primary functions of his
position, no appointive ocial shall hold any other oce or employment in
the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.

In Civil Liberties Union, a constitutional challenge was brought before this Court to
nullify EO No. 284 issued by then President Corazon C. Aquino on July 25, 1987,
which included Members of the Cabinet, undersecretaries and assistant secretaries
in its provisions limiting to two (2) the positions that appointive ocials of the
Executive Department may hold in government and government corporations.
Interpreting the above provisions in the light of the history and times and the
conditions and circumstances under which the Constitution was framed, this Court
struck down as unconstitutional said executive issuance, saying that it actually
allows there to hold multiple oces 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.
Noting that the prohibition imposed on the President and his ocial family is allembracing, the disqualication was held to be absolute, as the holding of "any other
oce" is not qualied by the phrase "in the Government" unlike in Section 13,
Article VI prohibiting Senators and Members of the House of Representatives from
holding "any other oce or employment in the Government"; and when compared
with other ocials and employees such as members of the armed forces and civil
service employees, we concluded thus:
TcSICH

These sweeping, all-embracing prohibitions imposed on the President and his

ocial family, which prohibitions are not similarly imposed on other public
ocials 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
ocial family as a class by itself and to impose upon said class
stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the
President and his ocial family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong noted
during the oor deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive Department.
Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more
powers and, therefore, more checks and restraints on them are called for
because there is more possibility of abuse in their case."
Thus , while all other appointive ocials in the civil service are
allowed to hold other oce 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 IX-B 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.
TcSCEa

xxx xxx xxx

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
oces 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 oces or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as intended to
be a positive and unequivocal negation. 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-ocio member of the Judicial and Bar Council by virtue of Section 8 (1),
Article VIII. 29 (EMPHASIS SUPPLIED.]

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 oce is allowed by law or the primary functions
of the position. Neither was she designated OIC of MARINA in an ex-ocio capacity,
which is the exception recognized in Civil Liberties Union.
The prohibition against holding dual or multiple oces or employment under
Section 13, Article VII of the 1987 Constitution was held inapplicable to posts
occupied by the Executive ocials specied therein, without additional
compensation in an ex-ocio capacity as provided by law and as required by the
primary functions of said oce. The reason is that these posts do not comprise "any
other oce" within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said ocials. 30 Apart
from their bare assertion that respondent Bautista did not receive any
compensation when she was OIC of MARINA, respondents failed to demonstrate
clearly that her designation as such OIC was in an ex-ocio capacity as required by
the primary functions of her office as DOTC Undersecretary for Maritime Transport.
MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand E.
Marcos on June 1, 1974. It is mandated to undertake the following:
(a)Adopt and implement a practicable and coordinated Maritime Industry
Development Program which shall include, among others, the early
replacement of obsolescent and uneconomic vessels; modernization
and expansion of the Philippine merchant eet, enhancement of
domestic capability for shipbuilding, repair and maintenance; and the
development of reservoir of trained manpower;
HITAEC

(b)Provide and help provide the necessary; (i) nancial assistance to the
industry through public and private nancing institutions and
instrumentalities; (ii) technological assistance; and (iii) in general, a
favorable climate for expansion of domestic and foreign investments
in shipping enterprises; and
(c)Provide for the eective supervision, regulation and rationalization of the
organizational management, ownership and operations of all water
transport utilities, and other maritime enterprises. 31

The management of MARINA is vested in the Maritime Administrator, who shall be

directly assisted by the Deputy Administrator for Planning and a Deputy
Administrator for Operations, who shall be appointed by the President for a term of
six (6) years. The law likewise prescribes the qualications for the oce, including
such "adequate training and experience in economics, technology, nance, law,
management, public utility, or in other phases or aspects of the maritime industry,"
and he or she is entitled to receive a xed annual salary. 32 The Administrator shall
be directly responsible to the Maritime Industry Board, MARINA's governing body,
and shall have powers, functions and duties as provided in P.D. No. 474, which
provides, under Sections 11 and 12, for his or her general and specic functions,
respectively, as follows:

SEC. [Link] Powers and Functions of the Administrator. Subject to

the general supervision and control of the Board, the Administrators shall
have the following general powers, functions and duties;
[Link] implement, enforce and apply the policies, programs, standards,
guidelines, procedures, decisions and rules and regulations issued,
prescribed or adopted by the Board pursuant to this Decree;
[Link] undertake researches, studies, investigations and other activities and
projects, on his own initiative or upon instructions of the Board, and
to submit comprehensive reports and appropriate recommendations
to the Board for its information and action;
[Link] undertake studies to determine present and future requirements for
port development including navigational aids, and improvement of
waterways and navigable waters in consultation with appropriate
agencies;
[Link] pursue continuing research and developmental programs on expansion
and modernization of the merchant eet and supporting facilities
taking into consideration the needs of the domestic trade and the
need of regional economic cooperation schemes; and
[Link] manage the aairs of the Authority subject to the provisions of this
Decree and applicable laws, orders, rules and regulations of other
appropriate government entities.
TDESCa

SEC. [Link] Powers and Functions of the Administrator. In addition to

his general powers and functions, the Administrator shall;
[Link] Certicate of Philippine Registry for all vessels being used in
Philippine waters, including shing vessels covered by Presidential
Decree No. 43 except transient civilian vessels of foreign registry,
vessels owned and/or operated by the Armed Forces of the Philippines
or by foreign governments for military purposes, and bancas,
sailboats and other watercraft which are not motorized, of less than
three gross tons;
[Link] a system of assisting various ocers, professionals, technicians,
skilled workers and seamen to be gainfully employed in shipping
enterprises, priority being given to domestic needs;
[Link] collaboration and coordination with the Department of Labor, to look
into, and promote improvements in the working conditions and terms
of employment of the ocers and crew of vessels of Philippine
registry, and of such ocers and crew members who are Philippine
citizens and employed by foreign ag vessels, as well as of personnel
of other shipping enterprises, and to assist in the settlement of
disputes between the shipowners and ship operators and such
ocers and crew members and between the owner or manager of
other shipping enterprises and their personnel;

[Link] require any public water transport utility or Philippine ag vessels to

provide shipping services to any coastal areas in the country where
such services are necessary for the development of the area, to meet
emergency sealift requirements, or when public interest so requires;
[Link] by itself or with the assistance of other appropriate
government agencies or ocials, or experts from the private sector,
any matter within its jurisdiction, except marine casualties or accidents
which shall be undertaken by the Philippine Coast Guard;
[Link], x, collect and receive in accordance with the schedules approved
by the Board, from any shipping enterprise or other persons
concerned, such fees and other charges for the payment of its
services;
[Link], at least annually, the facilities of port and cargo operators and
recommend measures for adherence to prescribed standards of
safety, quality and operations;
[Link] the sale, lease or transfer of management of vessels owned by
Philippine Nationals to foreign owned or controlled enterprises;
[Link] and enforce rules and regulations for the prevention of marine
pollution in bays, harbors and other navigable waters of the
Philippines, in coordination with the government authorities
concerned;
HSaCcE

[Link] and maintain, in coordination with the appropriate government

oces and agencies, a system of regularly and promptly producing,
collating, analyzing and disseminating trac ows, port operations,
marine insurance services and other information on maritime matters;
[Link] such measures as may be necessary for the regulation of the
importation into and exportation from the Philippines of vessels, their
equipment and spare parts;
[Link] the rules and regulations issued by the Board of Transportation;
[Link] and codify all maritime laws, orders, rules and regulations,
decisions in leasing cases of courts and the Authority's procedures
and other requirements relative to shipping and other shipping
enterprises, make them available to the public, and, whenever
practicable to publish such materials;
[Link] his powers in writing to either of the Deputy Administrators or
any other ranking ocials of the Authority; Provided, That he informs
the Board of such delegation promptly; and
[Link] such other duties as the Board may assign, and such acts as
may be necessary and proper to implement this Decree.

With the creation of the Ministry (now Department) of Transportation and

Communications by virtue of EO No. 546, MARINA was attached to the DOTC for
policy and program coordination on July 23, 1979. Its regulatory function was
likewise increased with the issuance of EO No. 1011 which abolished the Board of
Transportation and transferred the quasi-judicial functions pertaining to water
transportation to MARINA. On January 30, 1987, EO No. 125 (amended by EO No.
125-A) was issued reorganizing the DOTC. The powers and functions of the
department and the agencies under its umbrella were dened, further increasing
the responsibility of MARINA to the industry. Republic Act No. 9295, otherwise
known as the "The Domestic Shipping Development Act of 2004," 33 further
strengthened MARINA's regulatory powers and functions in the shipping sector.
Given the vast responsibilities and scope of administration of the Authority, we are
hardly persuaded by respondents' submission that respondent Bautista's
designation as OIC of MARINA was merely an imposition of additional duties related
to her primary position as DOTC Undersecretary for Maritime Transport. It appears
that the DOTC Undersecretary for Maritime Transport is not even a member of the
Maritime Industry Board, which includes the DOTC Secretary as Chairman, the
MARINA Administrator as Vice-Chairman, and the following as members: Executive
Secretary (Oce of the President), Philippine Ports Authority General Manager,
Department of National Defense Secretary, Development Bank of the Philippines
General Manager, and the Department of Trade and Industry Secretary. 34
HaIATC

Finally, the Court similarly nds respondents' theory that being just a "designation,"
and temporary at that, respondent Bautista was never really "appointed" as OIC
Administrator of MARINA, untenable. In Binamira v. Garrucho, Jr., 35 we
distinguished between the terms appointment and designation, as follows:
Appointment may be dened 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 conrmation, the appointment
results in security of tenure for the person chosen unless he is replaceable
at pleasure because of the nature of his oce. Designation, on the other
hand, connotes merely the imposition by law of additional duties on an
incumbent ocial, 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 dened as an appointment because it
likewise involves the naming of a particular person to a specied public
oce. 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 oce 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. 36 [EMPHASIS SUPPLIED.]

Clearly, respondents' reliance on the foregoing denitions is misplaced considering

that the above-cited case addressed the issue of whether petitioner therein acquired
valid title to the disputed position and so had the right to security of tenure. It must
be stressed though that while the designation was in the nature of an acting and
temporary capacity, the words "hold the oce" were employed. Such holding of
oce pertains to both appointment and designation because the appointee or
designate performs the duties and functions of the oce. The 1987 Constitution in
prohibiting dual or multiple oces, as well as incompatible oces, refers to the
holding of the oce, and not to the nature of the appointment or designation,
words which were not even found in Section 13, Article VII nor in Section 7,
paragraph 2, Article IX-B. To "hold" an oce means to "possess or occupy" the
same, or "to be in possession and administration," 37 which implies nothing less
than the actual discharge of the functions and duties of the office.
CaEIST

The disqualication laid down in Section 13, Article VII is aimed at preventing the
concentration of powers in the Executive Department ocials, specically the
President, Vice-President, Members of the Cabinet and their deputies and assistants.
Civil Liberties Union traced the history of the times and the conditions under which
the Constitution was framed, and construed the Constitution consistent with the
object sought to be accomplished by adoption of such provision, and the evils sought
to be avoided or remedied. We recalled the practice, during the Marcos regime, of
designating members of the Cabinet, their deputies and assistants as members of
the governing bodies or boards of various government agencies and
instrumentalities, including government-owned or controlled corporations. This
practice of holding multiple oces or positions in the government led to abuses by
unscrupulous public ocials, who took advantage of this scheme for purposes of
self-enrichment. The blatant betrayal of public trust evolved into one of the serious
causes of discontent with the Marcos regime. It was therefore quite inevitable and
in consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission would draft into the proposed Constitution the
provisions under consideration, which were envisioned to remedy, if not correct, the
evils that ow from the holding of multiple governmental oces and employment.
38 Our declaration in that case cannot be more explicit:
But what is indeed signicant is the fact that although Section 7, Article IX-B
already contains a blanket prohibition against the holding of multiple oces
or employment in the government subsuming both elective and appointive
public ocials, the Constitutional Commission should see it t to formulate
another provision, Sec. 13, Article VII, specically prohibiting the President,
Vice-President, members of the Cabinet, their deputies and assistants from
holding any other oce or employment during their tenure, unless
otherwise provided in the Constitution itself.
Evidently, from this move as well as in the dierent phraseologies of the
constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President
and his ocial family in so far as holding other oces or
employment in the government or elsewhere is concerned. 39
[EMPHASIS SUPPLIED.]

Such laudable intent of the law will be defeated and rendered sterile if we are to
adopt the semantics of respondents. It would open the veritable oodgates of
circumvention of an important constitutional disqualication of ocials in the
Executive Department and of limitations on the President's power of appointment
in the guise of temporary designations of Cabinet Members, undersecretaries and
assistant secretaries as officers-in-charge of government agencies, instrumentalities,
or government-owned or controlled corporations.
DCcHIS

As to respondents' contention that the concurrent positions of DOTC Undersecretary

for Maritime Transport and MARINA OIC Administrator are not incompatible oces,
we nd no necessity for delving into this matter. Incompatibility of oces is
irrelevant in this case, unlike in the case of PCGG Chairman Magdangal Elma in
Public Interest Center, Inc. v. Elma. 40 Therein we held that Section 13, Article VII is
not applicable to the PCGG Chairman or to the Chief Presidential Legal Counsel, as
he is not a cabinet member, undersecretary or assistant secretary. 41
WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena
H. Bautista as Ocer-in-Charge, Oce 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.

Puno, C.J., Carpio, Velasco, Jr., Nachura, Leonardo-de Castro, Brion, Peralta,
Bersamin, Del Castillo, Abad, Perez and Mendoza, JJ., concur.
Corona, J., took no part.
Carpio Morales, J., please see concurring opinion.

Separate Opinions
CARPIO MORALES, J., concurring:
I concur with Justice Martin Villarama, Jr. in his ponencia declaring unconstitutional
the designation of respondent Maria Elena Bautista (Bautista) as Ocer-in-Charge
(OIC) of the Oce 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 ocer 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 ocer due to the unconstitutionality of the designation. At best, she can
be regarded as a de facto ocer in such capacity from September 1, 2008 until she
assumed her subsequent appointment as MARINA Administrator on February 2,
2009.
2005jur

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 ocer. To sustain this view, however, would place in limbo
the legal eects of a designated ocer'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 eectively 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 ocer 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 dened as an appointment because it likewise involves
the naming of a particular person to a specied public oce. 3 In fact, even without
a known appointment or election, the de facto doctrine comes into play if the duties
of the oce 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-o cio members of the National Amnesty Commission and ruled that the
restrictions 6 covering the ex-ocio 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--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 oces at the same time, his
appointment or election to a second oce may operate to vacate the rst 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 oces or employment, as
herein dened, 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
oce is deemed to have resigned from the rst oce was applied in Public
Interest Center, Inc. v. Elma 10 where the Court, by Resolution of March 5, 2007,
claried that the ruling did not render both appointments void. It held that "
[f]ollowing the common-law rule on incompatibility of oces, respondent Elma had,
in eect, vacated his rst oce as PCGG Chairman when he accepted the second
office" 11 as Chief Presidential Legal Counsel.
SACTIH

Under this rule, Bautista would be deemed to have vacated her rst oce
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
nullies the appointment to a second oce for being unconstitutional and likewise
deems the rst oce as having been vacated. In the end, the public ocer is left
without an office.
In the present case, Bautista eventually voluntarily gave up her rst post when she
w a s subsequently appointed as MARINA Administrator, after ve months of
concurrently discharging the functions of an appointed DOTC Undersecretary and a
designated MARINA Ocer-in-Charge. It bears noting that what is being nullied 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 eectively 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. TheCivil 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
TCSEcI

The Civil Liberties Union formulation rendering the public ocer 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 Public Interest Center rule of implied resignation does not apply since it speaks
of "incompatibility of oce" 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 oce by
acceptance of a second public oce does not apply where, under applicable
constitutional or statutory provisions, the holder of a public oce is rendered
ineligible for a specied time for a second public oce; 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 ocer 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 oces of
public trust from accumulating in a single person. 5 Indeed, no one can claim a
monopoly of skills.
Being head of an executive department is no mean job. It is more than a fulltime job, requiring full attention, specialized knowledge, skills and expertise.
If maximum benets 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 oces or employment. He
should be precluded from dissipating his eorts, attention and energy
among too many positions of responsibility, which may result in
haphazardness and ineciency. 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 benets,
if any, that may be gained from a department head spreading himself too
thin and taking in more than what he can handle. 16
HISAET

The same norm holds true to that of a DOTC Undersecretary for Maritime Transport.
Now as always, the country cannot aord to have a public ocial 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

Footnotes

[Link], pp. 99 and 101.

[Link]. at 100.
[Link]. at 102.
[Link]. at 103-104.
5.G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.
6.G.R. No. 138965, June 30, 2006, 494 SCRA 53.
[Link] FOR THE REORGANIZATION OF MARITIME FUNCTIONS IN THE
PHILIPPINES, CREATING THE MARITIME INDUSTRY AUTHORITY, AND FOR OTHER
PURPOSES, approved on June 1, 1974.
[Link] on April 13, 1987.
[Link], pp. 14-27.
10.G.R. No. 93023, March 13, 1991, 195 SCRA 235.

[Link], pp. 34-37.

[Link]. at 38-40.
[Link]. at 40-42.
[Link]. at 86-87.
[Link]. at 88-89.
[Link]. at 90-93.
17.13 Sickels 295, 58 N.Y. 295, 1874 WL 11282 (N.Y.).
[Link]. at 93-95.
[Link]. at 127-128.
[Link], Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., G.R. Nos. 160261-160263, 160277, 160292, 160295, 160310,
160318, 160342, 160343, 160360, 160365, 160370, 160376, 160392, 160397,
160403 and 160405, November 10, 2003, 415 SCRA 44, 133 citing Angara v.
Electoral Commission, 63 Phil. 139 (1936).
[Link] v. COMELEC, 465 Phil. 385, 402 (2004).
[Link], Incorporated v. Morato , G.R. No. 118910, July 17, 1995, 246 SCRA 540,
562-563, citing Baker v. Carr, 369 U.S. 186, 7 [Link].2d 663 (1962).
23.G.R. No. 171396 and six (6) other cases, May 3, 2006, 489 SCRA 160, 220-221.
[Link] v. Macapagal-Arroyo, supra at 213-214, citing Province of Batangas v. Romulo ,
G.R. No. 152774, May 27, 2004, 429 SCRA 736, Banco Filipino Savings and
Mortgage Bank v. Tuazon, Jr. , G.R. No. 132795, March 10, 2004, 425 SCRA 129,
Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA
91; Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA
590, Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56,
January 26, 2004, 421 SCRA 21 and Lacson v. Perez, G.R. No. 147780, May 10,
2001, 357 SCRA 756.
25.G.R. No. 138965, June 30, 2006, 494 SCRA 53.
[Link]. at 58, citing Province of Batangas v. Romulo, supra at 757 and Chavez v. Public
Estates Authority, 433 Phil. 506, 522 (2002).
[Link], Jr. v. Ermita, G.R. No. 164978, October 13, 2005, 472 SCRA 587, 593, citing
Tolentino v. Commission on Elections, G.R. No. 148334, January 21, 2004, 420
SCRA 438, Gil v. Benipayo , G.R. No. 148179, June 26, 2001 (Unsigned Resolution),
Chief Supt. Acop v. Secretary Guingona, Jr., 433 Phil. 62 (2002), Viola v. Hon.
Alunan III, 343 Phil. 184 (1997) and Alunan III v. Mirasol, 342 Phil. 467 (1997).
[Link]. at 593.

[Link] Liberties Union v. Executive Secretary, supra at 328-329, 331.

[Link]. at 331-332.
31.P.D. NO. 474, SEC. 2.
[Link]., SECS. 8 and 9.
[Link] ACT PROMOTING THE DEVELOPMENT OF PHILIPPINE DOMESTIC SHIPPING,
SHIPBUILDING, SHIP REPAIR AND SHIP BREAKING, ORDAINING REFORMS IN
GOVERNMENT POLICIES TOWARDS SHIPPING IN THE PHILIPPINES, AND FOR
OTHER PURPOSES, approved on May 3, 2004.
[Link]: 2006 MARINA Annual Report, sourced
[Link]
k=MARINA%20annual%20report&start1=1>.

from

the

Internet

at

35.G.R. No. 92008, July 30, 1990, 188 SCRA 154.

[Link]. at 158-159.
[Link]'S LAW DICTIONARY, Eighth Edition, p. 749.
[Link] Liberties Union v. Executive Secretary, supra at 326-327.
[Link]. at 327.
[Link] note 6.
[Link]. at 62.
CARPIO MORALES, J., concurring:
1.G.R. No. 156982, September 8, 2004, 437 SCRA 655, 670.
[Link] Topacio v. Ong, G.R. No. 179895, December 18, 2008, 574 SCRA 817, 830.
[Link] 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 oce only in a temporary capacity and may be replaced at will by the
appointing authority.
[Link] Lino Luna v. Rodriguez and De los Angeles , 37 Phil. 186, 192 (1917).
5.A n obiter dictum has been dened 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).

[Link] respect to the exception enunciated in the Civil Liberties Union case allowing
posts occupied by the Executive ocials specied therein without additional
compensation in an ex-ocio capacity as provided by law and as required by the
primary functions of said officials' office.
[Link] 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.
[Link]. 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.
[Link] 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. . . . .
[Link] 7. No elective ocial 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 ocial shall hold any other oce 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.
[Link] note 7 at 45.
[Link] Liberties Union v. Executive Secretary, supra note 8 at 339.
[Link]-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.