DOJ Opinion No. 043, s. 1993

DOJ OPINION NO. 043 , s. 1993 March 19, 1993 Ms. Leonora Vasquez-de Jesus Presidential Management Staff PMS Bldg., Malacaang Annex Arlegui St., Manila M a d a m: This refers to your request for opinion as to which entity has jurisdiction and supervision over the Philippine Society for the Prevention of Cruelty to Animals (PSPCA). The query is being raised in connection with the complaint of Ms. Tina Testa who is seeking a formal investigation of the present Board of Directors of the PSPCA for allegedly perpetuating violations of the PSPCA Charter. prcd It appears that the Office of the Solicitor General, through its Assistant Solicitor General Pio C. Guerrero, has declined to render an opinion on the aforesaid query for the reason that it is not within its mandate to "render opinions or give legal advice to government entities or to private individuals". However, he gave his personal view that "the PSPCA is a government agency, and that it is the Office of the President of the Republic of the Philippines which has the power of supervision over said society". On the other hand, the Securities and Exchange Commission (SEC), through its Chairman Rosario N. Lopez, has rendered an opinion stating that the SEC has no jurisdiction over the PSPCA considering that the latter was created by a special law (Act No. 1285, as amended) and is not registered with the said Commission. When the matter was referred to the Office of the Government Corporate Counsel (OGCC), the said Office rendered an opinion (Opinion No. 274, s. 1990) stating that the OGCC has no jurisdiction over the affairs of the PSPCA since the latter is not a government-owned or controlled corporation notwithstanding its creation by a special law, citing the Administrative Code of 1987's definition of government-owned or controlled corporation as referring to "any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51%) per cent of its capital stock . . ." (Sec. 2[3], Introductory Provisions, E.O. No. 292). We take it that the issue we are called upon to resolve first is whether or not PSPCA is a government-owned or controlled corporation (GOCC). The PSPCA was created and incorporated by Act No. 1285 on January 19, 1905 as a body politic and corporate at law, the objective of which, is to enforce laws relating to cruelty to animals or the protection of animals in the Philippines and generally to do and perform all things to alleviate the suffering of animals and promote their welfare. Subject to the extended discussion hereinbelow, we are of the opinion that the PSPCA, having been created by a special law, falls within the ambit of the term "government-owned or controlled corporation" as defined in P.D. No. 2029 (approved on February 4, 1986) with reads as follows: "Sec. 2. Definition. A government owned or controlled corporation is a stock or a non-stock corporation whether performing governmental or proprietary functions, which directly chartered by special law or if organized under the general corporation law is owned or controlled by the government directly, or indirectly through a parent corporation or subsidiary corporation, to the extent of at least a majority of its outstanding capital stock or of its outstanding voting capital stock. (Emphasis supplied) prcd xxx xxx xxx In a similar vein, Administrative Order No. 59 dated February 16, 1988 defines a GOCC as one "created by special law or organized under the Corporation Code in which the Government, directly or indirectly, has ownership of the majority of the capital or has voting control" (Sec. 2[a]). Apparently, the definition of a GOCC under P.D. No. 2029, and reiterated in A.O. No. 59, is different from that provided under E.O. No. 292 (Administrative Code of 1987). It is noted that P.D. No. 2029 is a specific legislation which defines GOCCs and identifies their role in national development, whereas, E.O. No. 292 is a general law which covers all government agencies. The rule is well-settled that - "The enactment of a general law broad enough in its scope and application to cover the field of operation of a special statute will not repeal a statute which limits its operation to a particular phase of the subject covered by the general law and where the latter general law does conflict with the prior special statute, the prior special statute will be sustained as remaining in effect as a qualification of, or exception to, the general law". (Opn. No. 58, s. 1971 of the Secretary of Justice and the cases cited therein) "In case of conflict between a statute which deals with a subject in general terms and another which deals with the same subject in a more specific manner, the latter shall prevail regardless of their respective dates of enactment" (op. No. 127, s. 1978, ibid ; see also Op. No. 48, s. 1981). Moreover, under the called "charter test", if a government entity (a) is created by special law, (b) acquires a juridical personality exclusively on the basis of that special law, and (c) is endowed under that special law with the corporate form of organization, then such entity may automatically be considered a government corporation" (Sec. of Justice Opn. No. 79, s. 1975). Indeed, PSPCA can be considered a government corporation as it meets the above-mentioned three requirements of the charter test. prcd Parenthetically, the rationale for applying the "charter test" is found in the Constitution itself which provides that Congress can only provide for the formation, organization or regulation of private corporations by general law. However, it may provide for the creation of a corporation by special law or charter if such corporation is owned or controlled by the government (see Sec. 16, Article XII, 1987 Constitution; Sec. 4, Art. XIV, 1973 Constitution; Sec. 7, Art. XIV, 1935 Constitution). With respect to the issue as to which entity has supervision over the PSPCA, it is believed that it is the Office of the President which has supervision over the said body based on the provisions of Section 23, Book III of the Administrative Code of 1987 which provides: "Sec. 23. The Agencies under the Office of the President. The agencies under the Office of the President refer to those offices placed under the chairmanship of the President, those under the supervision and control of the Office of the President, those under the administrative supervision of the Office of the President, those attached to it for policy and program coordination, and those that are not placed by law or order creating them under any special department ." (Emphasis supplied.) The PSPCA is an agency of the government under the definition provided in Section 2, Introductory Provisions, of the same Code, to wit: "(4) Agency of the Government-refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein". (Emphasis supplied.) Since the Charter of PSPCA does not place the PSPCA under any particular Department, it is deemed to be under the Office of the President by virtue of the aforequoted provision of Section 23 of the Administrative Code of 1987. prcd Please be guided accordingly. Very truly yours, (SGD.) FRANKLIN M. DRILON Secretary