DOJ Opinion No. 024, s. 2003

DOJ OPINION NO. 024 , s. 2003 April 8, 2003 Undersecretary Miguel G. Coronel Executive Director Dangerous Drugs Board 5th Floor, CHAMP Building Bonifacio Drive, Port Area Manila Sir : This refers to your request for opinion on "whether or not the seventeen members of the Board (3 permanent, 12 ex-officio, 2 regular members, and 2 Permanent Consultants) are entitled to collect honoraria or per diems for their attendance to the weekly Board Meetings", based on the provisions of Section 78 (not Sec. 76, as stated in the query), Article IX of the Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165) which pertinently provide, to wit: SEC. 78. Composition of the Board. . . .. xxx xxx xxx All members of the (Dangerous Drugs) Board as well as its permanent consultants shall receive a per diem for every meeting actually attended subject to the pertinent budgetary laws, rules and regulations on compensation, honoraria and allowances : Provided, That where the representative of an ex officio member or of a permanent consultant of the Board attends a meeting in behalf of the latter, such representative shall be entitled to receive the per diem. xxx xxx xxx (emphasis ours) The query, it appears, is raised in the light of the Opinion (No. 121, s. 1994) rendered by this Department in connection with the ruling of the Supreme Court in Civil Liberties Union vs. Executive Secretary (194 SCRA 317) and the provision of Section 13, Article VII of the present Constitution which, inter alia , prohibits the government officials named therein from holding dual or multiple positions in both public and private sectors. Section 13, Article VII of the 1987 Constitution provides: Sec. 13. The President, the 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. (Emphasis supplied) Interpreting the said provision, the Supreme Court, in the aforementioned Civil Liberties Union vs. Executive Secretary case explained, thus: The prohibition against the holding of 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 not comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials . . . xxx xxx xxx It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor . ( id ., at pp. 331332 and 335) (italics provided) The said doctrinal pronouncement, appears to have been the basis of Senate Committee Report No. 509 which urges the Commission on Audit (COA), among others, "(t)o immediately cause the disallowance of any payment of any form of additional compensation or remuneration to cabinet secretaries, their deputies and assistants, or their representatives, in violation of the rule on multiple positions, and to effect the refund of any and all such additional compensation given to and received by the officials concerned, or their representatives, from the time of the finality of the Supreme Court ruling in Civil Liberties Union v . Executive Secretary to the present." aHSTID In this connection, we invite attention to Circular Letter No. 2002-2 (Grant of Personnel Benefits to Members and Ex-Officio Members of the Board of Directors) issued by the Department of Budget and Management (DBM), which pertinently provide: 1. The Department of Budget and Management has been receiving numerous requests and queries from GOCCs and GFIs on the grant of personnel benefits to Members and Ex-officio Members of the Board of Directors, such as Year-End Benefits (YEB), Personnel Economic Relief Allowance (PERA), Additional Compensation (ADCOM) and retirement benefits notwithstanding the policies and rules issued therefor. 1.0 To clarify and address issues/requests concerning the same, the following compensation policies are hereby reiterated: 2.1 PERA, ADCOM, YEB and retirement benefits, are personnel benefits granted in addition to salaries. As fringe benefits, these shall be paid only when the basic salary is also paid. 2.2 Members of the Board of Directors of agencies are not salaried officials of the government. 2.2 As non-salaried officials they are not entitled to PERA, ADCOM, YEB and retirement benefits unless expressly provided by law. 2.3 Department Secretaries, Undersecretaries and Assistant Secretaries who serve as Ex-officio Members of the Board of Directors are not entitled to any remuneration in line with the Supreme Court ruling that their services in the Board are already paid for and covered by the remuneration attached to their office . (italics supplied) The earlier-quoted provision of R.A. No. 9165 expressly provides that members of the Dangerous Drugs Board, shall receive a per diem for each meeting actually attended. A per diem is one form of compensation granted to public officers, which is fixed not as ordinarily by the year or by the month but by the day, and given for the days actually spent in the performance of official duties (Sec. of Justice Op. No. 242, s. 1947, citing 43 Am. Jur. 147, 148; see also Peralta vs. Mathay , 38 SCRA 256, 260, and Lexal Laboratories vs. National Chemical Industries Workers Union , 25 SCRA 668, 669). It is elementary in the rules of statutory construction that when the language of the law is clear and unequivocal, the law must be taken to mean exactly what it says. As oft repeated, when the law is clear, interpretation does not lie only application (Sec. of Justice Op. Nos. 78, 43 and 19, s. 2002; Ramos vs. Court of Appeals , 108 SCRA 728; Pascual vs. Pascual-Bautista , 207 SCRA 561). Applied to the instant case, it appears indubitable that save for the members of the Dangerous Drugs Board who, pursuant to the Constitution and the above-stated DBM Circular-Letter, are prohibited from receiving "any remuneration in line with the Supreme Court ruling", we believe that the other board members not covered by the constitutional prohibition may collect and receive said per diem which is specifically allowed and authorized by law to be received by them. IEHTaA Very truly yours, (SGD.) SIMEON A. DATUMANONG Secretary