DOJ OPINION NO. 155 , s.

1992
October 28, 1992

Undersecretary Romeo B. Bernardo

Department of Finance
Manila

Sir :
This has reference to your request for responses to the following queries:
1. "Is there a prohibition on the appointment of senior DOF officials in
corporate boards in a non-ex officio capacity as in the case of NPC?
2. If none, is there a limit to the number of appointments for any one official
for non-ex officio positions, or for ex-officio positions?"

You raise the above questions in connection with the desire of your Department
to take a more active role in the management of government corporations through
representations in the governing boards of these entities. You feel such representation
can address your Department's concern on the judicious management of government
corporations, which use a significant amount of public resources.
With respect to the rst query, the pertinent provisions of the 1987 Constitution
read:
"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." (Art. VII)
prcd

"Section 7. No elective official shall be eligible for appointment or designation

in any capacity to any public office or position during his tenure."

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." (Article IX-B; Emphases
supplied)

I n Civil Liberties Union vs. Executive Secretary (GR. No. 83896) and Anti-Graft
League vs. Philip Ella Juico, et. al., (G.R. No. 83815) promulgated February 22, 1991, the
Supreme Court ruled that under Section 13, Article VII of the Constitution, abovequoted,
no department secretary, undersecretary or assistant secretary may hold any other
of ce or employment in both the public and private sectors. The only exception to this
sweeping injunction is when it is otherwise authorized by the charter itself. The reason
is the manifest intention of the constitutional framers "to impose a stricter prohibition
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 on the President, Vice-President, members of the Cabinet, their deputies and assistants
with respect to holding multiple of ces or employment in the government during their
tenure".
However, as regards other appointive of cials of the executive branch, the court
declared that they "are allowed to hold other of ce or employment in the government
during their tenure when such is allowed by law or by the primary functions of their
position". The court stressed that "Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public of cials and employees,
while Section 13, Article VII is meant to be exception applicable only to the President,
the Vice-president, members of the Cabinet, their deputies and assistants."
Applying the abovestated jurisprudential principles, it is believed that the DOF
secretary, undersecretaries and assistant secretaries may not be appointed to the
governing boards of public corporations in a non-ex of cio capacity. However, less
senior DOF of cials may be so appointed if such appointment is allowed by law or the
primary functions of their respective positions. prcd

As regards the second query, the relevant provisions of Executive Order No. 284
state:
"SECTION 1. Even if allowed by law or by the primary functions of his
position, a member of the Cabinet, undersecretary, assistant secretary or other
appointive official of the Executive Department may, in addition to his primary
position, hold not more than two positions in the government and government
corporations and receive the corresponding compensation therefor: Provided, that
this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.

"SECTION 2. If a member of the Cabinet, undersecretary, assistant secretary

or other appointive official of the Executive Department holds more positions
than what is allowed in Section 1 hereof, they must relinquish the excess
positions in favor of a subordinate official who is next in rank, but in no case
shall any official hold more than two positions other than his primary position.
(Emphases supplied)

The above discussed Supreme Court ruling declared the aforesaid E.O.
unconstitutional since it in effect allows a department secretary, undersecretary and
assistant secretary to hold multiple positions in the government, although under
Section 13, Article VII, supra, such of cials can hold other positions in the government
only when explicitly allowed by the fundamental law. However, in a resolution dated
August 2, 1991, in response to a motion for clari cation led by the Solicitor-General,
the Court held that —
". . . The persons cited in the constitutional provision are the 'Members of the
Cabinet, their deputies or assistants.' These terms must be given their common
and general acceptation as referring to the heads of the executive departments,
their undersecretaries and assistant secretaries. Public officials given the rank
equivalent to a Secretary, Undersecretary or Assistant Secretary are not covered
by the prohibition, nor is the Solicitor General affected thereby. The prohibition,
however, applies to chairmanship and membership in the boards of sequestered
corporations."

The court added that "[o]ther appointive of cials below the rank of assistant
secretary are not covered by the constitutional prohibition under consideration." Thus,
the court conclude that E.O. No. 284 remains valid and enforceable insofar as it relates
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 to such other appointive officials of the executive department.
Based upon E.O. No. 284, it is believed that senior DOF of cials below the rank of
assistant secretary may be appointed to the governing boards of government
corporations in both ex-officio and non-ex of cio capacities, but such appointment
shall be limited to two (2) of such boards. prcd

The queries are answered accordingly.

Very truly yours,

(SGD.) FRANKLIN M. DRILON

Secretary

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