DOJ Opinion No. 015, s. 1996

DOJ OPINION NO. 015 , s. 1996 February 9, 1996 The Secretary of Labor Department of Labor Intramuros, Manila Sir : This has reference to the request of your Office for an interpretative ruling on the underscored portion of Section 7 of R.A. No. 7796 ("Technical Education and Skills Development Act of 1994" or the "TESDA Act of 1994") quoted hereunder: prcd "SEC. 7. Composition of the TESDA Board . The TESDA Board shall be composed of the following: The Secretary of Labor and Employment Chairperson Secretary of Education, Culture and Sports Co-Chairperson Secretary of Trade and Industry Co-Chairperson Secretary of Agriculture Member Secretary of Interior and Local Government Member Director-General of TESDA Secretariat Member In addition, the President of the Philippines shall appoint the following members of the private sector: two (2) representatives, from the employer/industry organization, one of whom shall be a woman; three (3) representatives from the labor sector, one of whom shall be a woman; and two representatives of the national associations of private technical-vocational education and training institutions, one of whom shall be a woman. As soon as all the members of the private sector are appointed, that shall so organize themselves that the term of office of one-third (1/3) of their number shall expire every year. The member from the private sector appointed thereafter to fill vacancies caused by expiration of terms shall hold office for three (3) years . The President of the Philippines may, however, revise the membership of the TESDA Board, whenever the President deems it necessary for the effective performance of the Board's function through an administrative order. The TESDA Board shall meet at least twice a year, or as frequently as may be deemed necessary by its Chairperson. In the absence of the Chairperson, a Co-Chairperson shall preside. In case any member of the Board representing the Government cannot attend the meeting, he or she shall be regularly represented by an undersecretary or deputy-director general, as the case may be, to be designated by such member for the purpose. The benefits, privileges and emoluments of the Board shall be consistent with existing laws and rules." (Emphasis supplied) The abovequoted provision defines the membership of the TESDA Board which is a mixture of public sector and private sector members. The public sector members, namely, the Secretary of Labor and Employment, the Secretary of Education, Culture and Sports, the Secretary of Trade and Industry, the Secretary of Agriculture, the Secretary of the Interior and Local Government and the Director-General of the TESDA Secretariat, are ex-officio members of the TESDA Board. Their tenure in the TESDA Board is a co-terminous with their tenure in their respective public offices. The private sector members, representing the employer/industry sector, the labor sector and the academe/education sector, shall have a fixed term of three years. However, there appears to be a divergence of views as to the term of office of the first set of appointees in view of the provision of Section 7, supra , which states that ". . . As soon as all the members of the private sector are appointed, they shall so organize themselves that the term of office of one-third (1/3) of their number shall expire every year. The member from the private sector appointed thereafter to fill vacancies caused by expiration of terms shall hold office for three (3) years" (see underscored portion, Sec. 7, supra ). You state that the private sector group has initially reached a consensus to interpret the abovequoted portion of Section 7 as conferring upon the appointees the term of "3, 4, 5 years at the initial stage of the organization" and the TESDA Board has agreed "to seek the legal interpretation of the Department of Justice on the matter". A reading of the aforequoted provision discloses the legislative intent to provide for a staggered term with respect to the private sector members of the TESDA Board. The provision envisions a rotational scheme of appointment where 1/3 of the private sector membership shall change every year. This rotational scheme of appointment ensures that there shall be full representation of all the private sector members in the TESDA Board at all times. It has been held that for the rotational scheme to work, two conditions must be met: (1) that the first set of members should start their terms at the same time; and (2) that every vacancy shall be filled only for the unexpired term of the member who caused the vacancy (Republic vs. Imperial, 96 Phil. 770; Nacionalista Party vs. De Vera, 85 Phil. 126). Membership in the Senate of the Philippines and in the three Constitutional Commissions (CSC, COMELEC and COA) follows the rotational scheme of appointment (see Sec. 2, Art. XVIII and Sec. 1[2] A, Sec. 1[2] B, Sec. 1[2] C, Art. IX, 1987 Constitution). However, unlike in the case of the private sector membership in the TESDA Board where the term of the first set of private sector members is not specified but is left to the determination of the private sector members first appointed, the initial terms of the first set of Senators elected in the 1992 elections under the 1987 Constitution shall be six years for the first twelve obtaining the highest number of votes, and three years for the remaining twelve (Sec. 2, Art. XVIII, supra ). On the other hand, the members of the Constitutional Commissions first appointed shall have staggered terms of "7, 5, 3" years (Sec. 1[2] A, Sec. 1[2] B, Sec. 1[2] C, Art. IX, supra ). The question in this case is the manner of fixing the staggered terms of the first set of private sector members of the TESDA Board. As you state, there is a view among them that it should be "3, 4, 5" years, meaning that the first group shall serve for three years; the second group, for four years; and the third group, for five years. Following this interpretation, there will be no appointment of a new set of private sector members until after the third year, which is evidently not the legislative intent since the provision mandates that "the term of office of one-third (1/3) of their number shall expire every year " and the members thereafter appointed "to fill vacancies caused by expiration of terms shall hold office for three (3) years". Clearly, the three-year term is intended for subsequent appointees and not to the first set of private sector members who shall so organize themselves such that the term of office of one-third (1/3) of their number shall expire every year." Thus, fixing a "3, 2, 1" year term for the first set of private sector members of the TESDA Board would appear to be the most consistent and faithful interpretation of the subject provision of the TESDA law. Incidentally, a very similar provision appears in Section 92 of the Corporation Code concerning the term of the board of trustees or members of non-stock corporation, to wit: "Sec. 92. Election and term of trustees . Unless otherwise provided in the articles of incorporation or the by-laws, the board of trustees of non-stock corporations, which may be more than fifteen (15) in number as may be fixed in their articles of incorporation or by-laws, shall, as soon as organized, so classify themselves that the term of office of one-third (1/3) of their number shall expire every year; and subsequent elections of trustees comprising one-third (1/3) of the board of trustees shall be held annually and trustees so elected shall have a term of three (3) years . Trustees thereafter elected to fill vacancies occurring before the expiration of a particular term shall hold once only for the unexpired period. xxx xxx xxx" (Emphasis supplied). We were informed by the Securities and Exchange Commission that the staggered term contemplated in Section 92 is being implemented on the basis of the "3-2-1" scheme for the first set of trustees considering that the law fixes the term of the subsequent trustees at three (3) years. This means that 1/3 will serve for two (2) years; and the remaining 1/3 will serve for one (1) in such a way that the term of 1/3 of all the members shall actually expire every year. We do not see why the interpretation of the same provision in Section 7 of TESDA law should be any different. To say that the private sector members should serve on the basis of "3-4-5" term will not be consistent with the spirit and intent of the law which fixes the maximum term of the private sector members at three (3) years. Please be guided accordingly. Very truly yours, (SGD.) TEOFISTO T. GUINGONA, JR. Secretary