CASE DIGEST: CIVIL LIBERTIES UNION vs. THE EXECUTIVE SECRETARY. G.R. No. 83896. February 22, 1991

FACTS:

This petition is about the declaration of the unconstitutionality of Executive Order No. 284 issued by President Aquino on July 25, 1987.

The said EO 284 allows members of the Cabinet, their undersecretaries, and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of 1987 Constitution, which provides as follows:

"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 professions, 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 DOJ however in its issued Opinion No. 73 construed Section 13 of Art. VII together with Sec. 7, paragraph 2 of Art. IX-B which provides that:

"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:

Whether 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 IX-B.

RULING:

No, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. 

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.

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. As compared to other prohibition found in the Constitution which provides restriction only to office or employment in the government and GOCC's or their subsidiaries, Article VII Section 13 provides absolute disqualification embracing and covers both public and private office or employment unless otherwise provided by the Constitution itself.

This prohibition is 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. The reason is that because they exercise more powers and, therefore more cheeks and restraints on them are called for because there is more possibility of abuse in their case.

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. 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 applies 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-officiomember of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

SUMMARY NOTES FOR THIS CASE:

The case of CLU vs. Executive Secretary explains Sec. 13, Article VII of the constitution as an exception to the general rule provided under Sec. 7 Article IX-B.

The general rule is that all appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure. Provided, that such holding of another employment is allowed by law or by their primary functions. The questioned appointive positions in EO 284 are Cabinets, their undersecretaries, and assistant secretaries. The latter positions are appointive in nature, thus it seems that it is also covered by Sec. 7 Article I-XB of the Constitution, but it is not. The exception now is provided under Sec. 13, Article VII of the Constitution. The provision specifically includes the appointive positions of “Cabinets, their undersecretaries, and assistant secretaries. It strictly prohibits the mentioned positions from holding any other office or employment during their tenure to avoid conflict of interest. This is a special provision because their positions are separated from the rule governing all other appointive officials under Sec. 7 of Article IX-B. They cannot hold any other office or employment by means of any law allowing them, like this one, EO 284, and by means of their primary functions because only the constitution may allow them to hold any other position. Those positions that are allowed by the Constitution are exclusive, what is excluded cannot be included. Thus cabinets, their undersecretaries, and assistant secretaries are allowed only to hold only positions that the Constitution provided.

On the contention that the position will be held in an Ex-Officio capacity and in accordance with the primary functions:

The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio  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."  

Sec. 13 of Article VII does not cover the positions held by the executives in his ex-officio capacity and without additional compensation because such positions do not comprise any other position as what the constitution prohibits. His holding of such position in an ex officio capacity imposed only additional duties and functions on the said official.

Likewise, the function of the official in his additional position must be closely related to or required by the official’s primary functions. It should not be a mere incidental, remotely related, inconsistent, incompatible, or otherwise alien to his primary function. Otherwise, it will fall under the prohibition lay down in Sec. 13 of Article VII because it will be considered as “any other office”