DOJ Opinion No. 048, s. 2004

DOJ OPINION NO. 048, s. 2004 May 14, 2004 Ms. Leticia V. Ibay Acting Chairman Energy Regulatory Commission Pacific Center Building San Miguel Avenue, Pasig City M a d a m : Reference is made to your request for confirmatory opinion on whether Commissioner Carlos R. Alindada, a member of the Energy Regulatory Commission (ERC), is not violating any law, rules or regulations for being at the same time a member of the Permanent Rehabilitation Receiver of the Philippine Airlines (PRR-PAL). We are informed that the PRR-PAL was constituted and its members appointed by the Securities and Exchange Commission (SEC), pursuant to its power under Presidential Decree No. 902-A, as amended (PD reorganizing the SEC), when the airline company filed a petition for suspension of payments with the SEC. It is your position that there is no legal impediment to Commissioner Alindada's holding of both positions at the same time. In support thereof, you quote from: two Secretary of Justice Opinions (No. 49, s. 1989; and No. 40, s. 2002), the rulings of the Supreme Court in Civil Liberties Union vs. Executive Secretary (194 SCRA 317) and in Quimzon vs. Ozaeta (98 Phil. 705), the deliberations on Senate Bill No. 139 (which became Republic Act No. 6713 [Code of Conduct and Ethical Standards for Public Officers and Employees]), and the provisions of Section 17 of Act No. 4187 and Section 1, Rule IX of R.A. No. 6713, which purport to show that there is no legal or constitutional provision that prohibits a public officer from holding any other office or employment in any private business or enterprise, that what is prohibited is additional or double compensation and not dual/multiple appointments or positions, and, that the prohibition on double or additional compensation applies only where compensation is also paid without express legal authority for the other public positions which the public officer may be legally permitted to hold in a concurrent capacity. Section 7, Article IX-B of the 1987 Constitution, insofar as pertinent, states: SEC. 7. . . . 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. (Stress ours.) In the Opinion cited (No. 49, s. 1989), we said that " (t)he prohibition in Section 7, Article IX-B of the 1987 Constitution enjoins any appointive .. . official from holding any other government office or position " and " (i)t does not, therefore, proscribe the holding of a private office or position ." Upon the other hand, Republic Act No. 9136 (Electric Power Industry Reform Act of 2001), which, among others, created the Energy Regulatory Commission (ERC) and abolished the Energy Regulatory Board (ERB), pertinently provides, to wit: DAEcIS SEC. 80. Applicability and Repealing Clause . The applicability of the provisions of . . . Executive Order No . 172, as amended, creating the ERB ; . . . shall continue to have force and effect except insofar as they are inconsistent with this Act. xxx xxx xxx. (Stress ours.) Among the provisions of Executive Order No. 172 (Creating the Energy Regulatory Board), as amended, which are deemed to be still applicable for not being inconsistent with the provisions of R.A. No. 9136 is Section 1 thereof which provides, to wit: SEC. 1. Energy Regulatory Board . . . .. The Chairman and the Board Members shall devote their full time to the Board and shall not accept any other employment . iatdc2004 xxx xxx xxx (Emphasis supplied.) The above-quoted provision of Executive Order No. 172, construed in relation to Section 7, Article IX-B of the Constitution quoted earlier, tends to show that the prohibition contained in the said Executive Order applies only to an "office or employment in the Government or any subdivision, agency or instrumentality thereof", which is the prohibited position under the said provision of the Constitution. A contrary interpretation would render the provision of Section 1 of Executive Order No. 172 unconstitutional, as it would prohibit something that the fundamental law allows. The basic, elementary and universal rule of statutory construction, applied when considering constitutional issues, states that when a law is susceptible to two constructions, one constitutional and the other unconstitutional, that construction in favor of its constitutionality shall be adopted (Agpalo, Statutory Construction, p. 191, citing cases). It should be given a construction that is in harmony with the tenets of the fundamental law ( id .). The issue, consequently, boils down to whether the PRR-PAL is a government office, agency or instrumentality such that employment therein would fall within the ambit of the constitutional prohibition, and/or whether PRR-PAL is a public office and that the person appointed as such is a public officer. The Administrative Code of 1987, [E.O. No. 292], insofar as pertinent, reads: SEC. 2. General Terms Defined . Unless the specific words of the text, or the context as a whole, or a particular statute, shall require a different meaning: TAacHE xxx xxx xxx (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; xxx xxx xxx (9) Office refers, within the framework of governmental organization, to any functional unit of a department, or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation . (Sec. 2, Introductory Provisions, E.O. No. 292) (Stress ours) It may also be of importance to define what constitutes a public office. "A public office is the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is so invested with some portion of the sovereign functions of the state to be exercised by him for the benefit of the body politic. The individual so invested is a public officer". ( Carlo Cruz, Law of Public Officers, 1992 Edition, p . 1, citing Mechem, A Treatise on the Law of Public Offices ad Officers, Chapter I, Section I ) The elements of a public office are: 1. It must be created by law or by authority of the law; 2. It must posses a delegation of the sovereign powers of government, to be exercised for the benefit of the public; 3. The powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; 4. The duties must be performed independently and without the control of a superior power other than the law unless those of an inferior or subordinate office created or authorized by the legislature, and by it placed under the general control of a superior office or body; and 5. It must have some permanence and continuity and not only temporary or occasional ( Barney v . Hawkins, 357 Pac . 411, 53 ALR . 583, cited in Martin, Administrative Law, Law of Public Officers and Election Laws, 1983 ed . , pp . 135136 ). In the light of the foregoing, it is believed that PRR-PAL is neither an agency, office or instrumentality of the government. It is not among those covered as an "agency" of the government; neither could it be considered as an "office" as PRR-PAL is not within the framework of government organization, or is a functional unit of a department or office. A receiver is a representative of the court appointing him for the purpose of preserving and conserving the property under receivership and preventing its possible destruction or dissipation ( Saliente vs. Intermediate Appellate Court , 244 SCRA 395). The receiver is not the representative of any of the parties but all of them to the end that their interest may be equally protected with the least possible convenience and expense. The purpose for which receivership is established is to preserve the property during the pendency of the litigation or to dispose of it according to the judgment when it is finally rendered or otherwise to carry the judgment into effect. The appointment of a receiver by the SEC is not an appointment to a public office although the receiver becomes an officer of the SEC. While the 1st, 3rd and 4th elements of a public office can be said to be present in a receiver, the 2nd and 5th elements are not present. It can be clearly seen that a receiver is not a delegate of "a portion of sovereign powers of government", and the appointment is merely temporal and occasional, there being no permanence and continuity in the function. The receiver does not discharge or is invested with a sovereign function of the state. He does not enforce or administer any laws or regulations. He is merely a representative of the SEC and the relationship is for a special and limited purpose only, that is preserving and conserving the property under receivership and preventing its possible destruction or dissipation. In several opinions, this Department has held that "public office" connotes service that is permanent in nature, and not merely ad hoc , transient or occasional (Secretary of Justice Op. No. 61, s. 1995), meaning, "(i)f the position involves the performance of a special, transient, occasional or incidental duty, then it is not a public office or position" ( Ibid ., No. 156, s. 1994) for "it is of the nature of an 'office' that its duties be continuous or that it involves the ideas of tenure, duration or continuance." ( id ., No. 182, s. 1988) In another Opinion (No. 106, s. 1992), this Department, citing Opinion No. 15, s. 1987, stated that "(t)here is jurisprudence to the effect that to constitute a public office, it is essential that the position be created by law, with duties cast upon the incumbent which involve some portion of the sovereign power and in the performance of which the public is concerned and not occasional or intermittent." Furthermore, while the exercise of the functions of a receiver is imbued with trust in the person appointed as a receiver, there is very little discretion in the exercise of the powers vested by the court or the law. The receiver, as an officer of the court or the SEC, merely carries out faithfully the instructions of the appointing power and, absent a higher degree of diligence imposed upon him by the relevant statute, performs his duties with diligence of a good father of a family. CSHcDT This Department therefore, is of the considered opinion that there is no legal impediment for Commissioner Alindada to serve as Commissioner for ERC and as member of PRR-PAL at the same time. Very truly yours, (SGD.) MA. MERCEDITAS N. GUTIERREZ Acting Secretary