PESIGAN vs ANGELES

ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,

vs.

JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting for REGIONAL TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V. ZENAROSA, ET AL., respondents.

AQUINO, J.:

Facts:

Anselmo and Marcelo Pesigan transported in the evening of April 2, 1982 twenty-six carabaos and a calf from Camarines Sur to Batangas. They were provided with three certificates:

1) Health certificate from the provincial veterinarian

2) Permit to transfer/transport from the provincial commander; and

3) Three certificates of inspections

In spite of the permit to transport and the said certificates, the carabaos, while passing at Basud, Camarines Norte, were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's police station commander, and by Doctor Bella S. Miranda, provincial veterinarian. The confiscation was based on E.O. No. 626-A which provides "that henceforth, no carabao, regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabaos or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government to be distributed ... to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos"

Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a farmer from the Vinzons municipal nursery. Thereafter, the Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the recovery of the carabaos.

Issue:

Whether or not E.O. 626-A dated October 25, 1980 may be enforced before its publication in the Official Gazette (June 14, 1982)

Held:

No.

The Executive order should not be enforced against the Pesigans on April 2, 1982 because, as already noted, it is a penal regulation published more than two months later in the Official Gazette dated June 14, 1982. It became effective only fifteen days thereafter as provided in article 2 of the Civil Code and section 11 of the Revised Administrative Code.

The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations which prescribe penalties. Publication is necessary to apprise the public of the contents of the regulations and make the said penalties binding on the persons affected thereby.

Executive Order No. 626-A, because its confiscation and forfeiture provision or sanction, makes it a penal statute. Justice and fairness dictate that the public must be informed of that provision by means of publication in the Gazette before violators of the executive order can be bound thereby.

The summary confiscation was not in order. The recipients of the carabaos should return them to the Pesigans. However, they cannot transport the carabaos to Batangas because they are now bound by the said executive order. Neither can they recover damages. Doctor Miranda and Zenarosa acted in good faith in ordering the forfeiture and dispersal of the carabaos.

WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the carabaos are reversed and set aside. Respondents Miranda and Zenarosa are ordered to restore the carabaos, with the requisite documents, to the petitioners, who as owners are entitled to possess the same, with the right to dispose of them in Basud or Sipocot, Camarines Sur. No costs.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. HON. MAXIMO A. MACEREN CFI, Sta. Cruz, Laguna, JOSE BUENAVENTURA, GODOFREDO REYES, BENJAMIN R

G.R. No. L-32166 October 18, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.

HON. MAXIMO A. MACEREN CFI, Sta. Cruz, Laguna, JOSE BUENAVENTURA, GODOFREDO REYES, BENJAMIN REYES, NAZARIO AQUINO and CARLO DEL ROSARIO, accused-appellees.

AQUINO, J.:

Facts:

Jose Buenaventura, Godofredo Reyes, Benjamin Reyes, Nazario Aquino and Carlito del Rosario were charged with having violated Fisheries Administrative Order No. 84-1.

It alleged that the five accused resorted to electro fishing in the waters of Barrio San Pablo Norte, Sta. Cruz by using their own motor banca, equipped with motor and electrocuting device locally known as sensored with a somewhat webbed copper wire on the tip or other end of a bamboo pole with electric wire attachment which was attached to the dynamo direct and with the use of these devices or equipments catches fish thru electric current, which destroy any aquatic animals within its cuffed reach, to the detriment and prejudice of the populace.

Sec. 11 of the Fisheries Law prohibits "the use of any obnoxious or poisonous substance" in fishing.

Section 76 of the same law punishes any person who uses an obnoxious or poisonous substance in fishing with a fine of not more than five hundred pesos nor more than five thousand, and by imprisonment for not less than six months or more than five years.

It is noteworthy that the Fisheries Law does not expressly punish electro fishing. Notwithstanding the silence of the law, the Secretary of Agriculture and Natural Resources, upon the recommendation of the Commissioner of Fisheries, promulgated Fisheries Administrative Order No. 84 (62 O.G. 1224), prohibiting electro fishing in all Philippine waters

On June 28, 1967 the Secretary of Agriculture and Natural Resources, upon the recommendation of the Fisheries Commission, issued Fisheries Administrative Order No. 84-1, amending section 2 of Administrative Order No. 84, by restricting the ban against electro fishing to fresh water fisheries (63 O.G. 9963).

Thus, the phrase "in any portion of the Philippine waters" found in section 2, was changed by the amendatory order to read as follows: "in fresh water fisheries in the Philippines, such as rivers, lakes, swamps, dams, irrigation canals and other bodies of fresh water."

Issue:

Whether or not Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries exceeded their authority in issuing Fisheries Administrative Orders Nos. 84 and 84-1

Held:

Yes. They exceeded their authority.

The rule-making power confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute

The Fisheries Law does not expressly prohibit electro fishing .As electro fishing is not banned under that law. Hence, the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries are powerless to penalize it. Had the lawmaking body intended to punish electro fishing, a penal provision to that effect could have been easily embodied in the old Fisheries Law. Nowhere in the said law is electro fishing specifically punished. Administrative agents are clothed with rule-making powers because the lawmaking body finds it impracticable, if not impossible, to anticipate and provide for the multifarious and complex situations that may be encountered in enforcing the law. All that is required is that the regulation should be germane to the defects and purposes of the law and that it should conform to the standards that the law prescribes.

BELGIAN OVERSEAS CHARTERING AND SHIPPING N.V. and JARDINE DAVIES TRANSPORT SERVICES, INC., petitioners, vs. PHILIPPINE FIRST INSURANCE CO., INC

THIRD DIVISION

[G.R. No. 143133. June 5, 2002]

BELGIAN OVERSEAS CHARTERING AND SHIPPING N.V. and JARDINE DAVIES TRANSPORT SERVICES, INC., petitioners, vs. PHILIPPINE FIRST INSURANCE CO., INC., respondent.

D E C I S I O N

PANGANIBAN, J.:

Facts:

CMC Trading A.G. shipped on board the MN ‘Anangel Sky’ at Hamburg, Germany 242 coils of various Prime Cold Rolled Steel sheets for transportation to Manila consigned to the Philippine Steel Trading Corporation. On July 28, 1990, MN Anangel Sky arrived at the port of Manila and, within the subsequent days, discharged the subject cargo. Four (4) coils were found to be in bad order B.O. Tally sheet No. 154974. Finding the four (4) coils in their damaged state to be unfit for the intended purpose, the consignee Philippine Steel Trading Corporation declared the same as total loss.

Despite receipt of a formal demand, Phil. First insurance refused to submit to the consignee’s claim. Consequently, Belgian Overseas paid the consignee P506,086.50, and was subrogated to the latter’s rights and causes of action against defendants-appellees. Subsequently, plaintiff-appellant instituted this complaint for recovery of the amount paid by them, to the consignee as insured.

Impugning the propriety of the suit against them, defendants-appellees imputed that the damage and/or loss was due to pre-shipment damage, to the inherent nature, vice or defect of the goods, or to perils, danger and accidents of the sea, or to insufficiency of packing thereof, or to the act or omission of the shipper of the goods or their representatives. In addition thereto, defendants-appellees argued that their liability, if there be any, should not exceed the limitations of liability provided for in the bill of lading and other pertinent laws. Finally, defendants-appellees averred that, in any event, they exercised due diligence and foresight required by law to prevent any damage/loss to said shipment.”

Issue: Whether or not petitioners have overcome the presumption of negligence of a common carrier

Held:

No.

Petitioners contend that the presumption of fault imposed on common carriers should not be applied on the basis of the lone testimony offered by private respondent. The contention is untenable.

Well-settled is the rule that common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence and vigilance with respect to the safety of the goods and the passengers they transport. Thus, common carriers are required to render service with the greatest skill and foresight and “to use all reasonable means to ascertain the nature and characteristics of the goods tendered for shipment, and to exercise due care in the handling and stowage, including such methods as their nature requires.” The extraordinary responsibility lasts from the time the goods are unconditionally placed in the possession of and received for transportation by the carrier until they are delivered, actually or constructively, to the consignee or to the person who has a right to receive them.

Owing to this high degree of diligence required of them, common carriers, as a general rule, are presumed to have been at fault or negligent if the goods they transported deteriorated or got lost or destroyed. That is, unless they prove that they exercised extraordinary diligence in transporting the goods. In order to avoid responsibility for any loss or damage, therefore, they have the burden of proving that they observed such diligence.

However, the presumption of fault or negligence will not arise if the loss is due to any of the following causes: (1) flood, storm, earthquake, lightning, or other natural disaster or calamity; (2) an act of the public enemy in war, whether international or civil; (3) an act or omission of the shipper or owner of the goods; (4) the character of the goods or defects in the packing or the container; or (5) an order or act of competent public authority. This is a closed list. If the cause of destruction, loss or deterioration is other than the enumerated circumstances, then the carrier is liable therefor.

Corollary to the foregoing, mere proof of delivery of the goods in good order to a common carrier and of their arrival in bad order at their destination constitutes a prima facie case of fault or negligence against the carrier. If no adequate explanation is given as to how the deterioration, the loss or the destruction of the goods happened, the transporter shall be held responsible.

That petitioners failed to rebut the prima facie presumption of negligence is revealed in the case at bar by a review of the records and more so by the evidence adduced by respondent

FGU INSURANCE CORPORATION, petitioner, vs. G.P. SARMIENTO TRUCKING CORPORATION and LAMBERT M. EROLES

FIRST DIVISION

[G.R. No. 141910. August 6, 2002]

FGU INSURANCE CORPORATION, petitioner, vs. G.P. SARMIENTO TRUCKING CORPORATION and LAMBERT M. EROLES, respondents.

D E C I S I O N

VITUG, J.:

Facts:

G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June 1994 thirty (30) units of Condura S.D. white refrigerators aboard one of its Isuzu truck, driven by Lambert Eroles, from the plant site of Concepcion Industries, Inc., along South Superhighway in Alabang, Metro Manila, to the Central Luzon Appliances in Dagupan City. While the truck was traversing the north diversion road along McArthur highway in Barangay Anupol, Bamban, Tarlac, it collided with an unidentified truck, causing it to fall into a deep canal, resulting in damage to the cargoes.

FGU Insurance Corporation (FGU), an insurer of the shipment, paid to Concepcion Industries, Inc., the value of the covered cargoes in the sum of P204,450.00. FGU, in turn, being the subrogee of the rights and interests of Concepcion Industries, Inc., sought reimbursement of the amount it had paid to the latter from GPS. Since the trucking company failed to heed the claim, FGU filed a complaint for damages and breach of contract of carriage against GPS and its driver Lambert Eroles with the Regional Trial Court, Branch 66, of Makati City. In its answer, respondents asserted that GPS was the exclusive hauler only of Concepcion Industries, Inc., since 1988, and it was not so engaged in business as a common carrier. Respondents further claimed that the cause of damage was purely accidental.

Issues:

1. Whether or not GPS may be considered as a common carrier
2. Whether or not GPS, either as a common carrier or a private carrier, may be presumed to have been negligent when the goods it undertook to transport safely were subsequently damaged while in its protective custody and possession

Held:

GPS, being an exclusive contractor and hauler of Concepcion Industries, Inc., rendering or offering its services to no other individual or entity, cannot be considered a common carrier. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for hire or compensation, offering their services to the public, whether to the public in general or to a limited clientele in particular, but never on an exclusive basis. The true test of a common carrier is the carriage of passengers or goods, providing space for those who opt to avail themselves of its transportation service for a fee. Given accepted standards, GPS scarcely falls within the term “common carrier.”

The above conclusion nothwithstanding, GPS cannot escape from liability.

In culpa contractual, upon which the action of petitioner rests as being the subrogee of Concepcion Industries, Inc., the mere proof of the existence of the contract and the failure of its compliance justify,prima facie, a corresponding right of relief. The law, recognizing the obligatory force of contracts, will not permit a party to be set free from liability for any kind of misperformance of the contractual undertaking or a contravention of the tenor thereof. A breach upon the contract confers upon the injured party a valid cause for recovering that which may have been lost or suffered. The remedy serves to preserve the interests of the promisee that may include his “expectation interest,” which is his interest in having the benefit of his bargain by being put in as good a position as he would have been in had the contract been performed, or his “reliance interest,” which is his interest in being reimbursed for loss caused by reliance on the contract by being put in as good a position as he would have been in had the contract not been made; or his “restitution interest,” which is his interest in having restored to him any benefit that he has conferred on the other party. Indeed, agreements can accomplish little, either for their makers or for society, unless they are made the basis for action.

Respondent trucking corporation recognizes the existence of a contract of carriage between it and petitioner’s assured, and admits that the cargoes it has assumed to deliver have been lost or damaged while in its custody. In such a situation, a default on, or failure of compliance with, the obligation – in this case, the delivery of the goods in its custody to the place of destination - gives rise to a presumption of lack of care and corresponding liability on the part of the contractual obligor the burden being on him to establish otherwise. GPS has failed to do so.

Respondent driver, on the other hand, without concrete proof of his negligence or fault, may not himself be ordered to pay petitioner. The driver, not being a party to the contract of carriage between petitioner’s principal and defendant, may not be held liable under the agreement. A contract can only bind the parties who have entered into it or their successors who have assumed their personality or their juridical position. Consonantly with the axiom res inter alios acta aliis neque nocet prodest, such contract can neither favor nor prejudice a third person. Petitioner’s civil action against the driver can only be based on culpa aquiliana, which, unlike culpa contractual, would require the claimant for damages to prove negligence or fault on the part of the defendant.

QUINTO vs COMELEC

G.R. No. 189698 February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS, Respondent.

R E S O L U T I O N

PUNO, C.J.:

• ETO DIGEST NG CASE PRIOR TO THE MOTION FOR RECONSIDERATION. RESOLUTION YUNG ASSIGNED CASE SA ATIN

Facts:

Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued Resolution No. 8678, the Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:

SEC. 4. Effects of Filing Certificates of Candidacy.—a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.

Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive positions in the government and who intend to run in the coming elections, filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as null and void. Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, contains two conflicting provisions. These must be harmonized or reconciled to give effect to both and to arrive at a declaration that they are not ipso facto resigned from their positions upon the filing of their CoCs.

Issue: whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369 and Section 4(a) of COMELEC Resolution No. 8678 are violative of the equal protection clause

Held: Yes.

In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment.

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely:

(1) It must be based upon substantial distinctions;

(2) It must be germane to the purposes of the law;

(3) It must not be limited to existing conditions only; and

(4) It must apply equally to all members of the class.

The first requirement means that there must be real and substantial differences between the classes treated differently. As illustrated in the fairly recent Mirasol v. Department of Public Works and Highways, a real and substantial distinction exists between a motorcycle and other motor vehicles sufficient to justify its classification among those prohibited from plying the toll ways. Not all motorized vehicles are created equal—a two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.

Nevertheless, the classification would still be invalid if it does not comply with the second requirement—if it is not germane to the purpose of the law.

The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. And, under the last requirement, the classification would be regarded as invalid if all the members of the class are not treated similarly, both as to rights conferred and obligations imposed.

Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one’s candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work.

If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their CoCs for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.

As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for.

There is thus no valid justification to treat appointive officials differently from the elective ones. The classification simply fails to meet the test that it should be germane to the purposes of the law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause.

WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL.

MOTION FOR RECONSIDERATION

Facts:

This is a motion for reconsideration filed by the Commission on Elections. The latter moved to question an earlier decision of the Supreme Court declaring the second proviso in the third paragraph of Section 13 of R.A. No. 9369, the basis of the COMELEC resolution, and Section 4(a) of COMELEC Resolution No. 8678 unconstitutional. The resolution provides that, “Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.” RA 9369 provides that

“For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.

Issue: Issue: whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369 and Section 4(a) of COMELEC Resolution No. 8678 are violative of the equal protection clause and therefore unconstitutional

Held: No

To start with, the equal protection clause does not require the universal application of the laws to all persons or things without distinction. What it simply requires is equality among equals as determined according to a valid classification. The test developed by jurisprudence here and yonder is that of reasonableness, which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain."

In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? There is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’ Motions for Reconsideration; REVERSE and SET ASIDE this Court’s December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

==============

Note: Not applicable sa barangay office: Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office.

Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail.

Funa vs Executive Secretary with Notes

G.R. No. 184740 February 11, 2010

DENNIS A. B. FUNA, Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC. LEANDRO R. MENDOZA, in his official capacity as Secretary of the Department of Transportation and Communications, USEC. MARIA ELENA H. BAUTISTA, in her official capacities as Undersecretary of the Department of Transportation and Communications and as Officer-in-Charge of the Maritime Industry Authority (MARINA), Respondents.

D E C I S I O N

VILLARAMA, JR., J.:

Facts:

This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, to declare as unconstitutional the designation of respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA).

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC).

On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary.

On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of Bautista’s appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment.

On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA and she assumed her duties and responsibilities as such on February 2, 2009.

Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution .

On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present petition moot and academic. Petitioner’s prayer for a temporary restraining order or writ of preliminary injunction is likewise moot and academic since, with this supervening event, there is nothing left to enjoin.

Issue: Whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members and their deputies and assistants.

Held:

The petition is meritorious.

Petitioner having alleged a grave violation of the constitutional prohibition against Members of the Cabinet, their deputies and assistants holding two (2) or more positions in government, the fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for redress of such illegal act by public officials.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. But even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public. In the present case, the mootness of the petition does not bar its resolution.

Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution, which provides:

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 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.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

On the other hand, Section 7, paragraph (2), Article IX-B reads:

Sec. 7. x x x

Unless otherwise allowed by law or 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.

Noting that the prohibition imposed on the President and his official family is all-embracing, the disqualification was held to be absolute, as the holding of "any other office" is not qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting Senators and Members of the House of Representatives from holding "any other office or employment in the Government"; and when compared with other officials and employees such as members of the armed forces and civil service employees, we concluded thus:

These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are 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.

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 IX-B 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 applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 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-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another office is allowed by law or the primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union.

WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID.

Note:

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.