DAY 9

Prohibitions:
1. holding of incompatible office
2. appointment of presidential relatives

n Officers covered by Sec. 13:

1. President
2. Vice President
3. Members of the cabinet
4. Their deputies and assistants

n Extent of prohibition (Sec. 13)

A. Incompatible Office:
I. Cannot hold any other office or employment, unless provided in the Constitution
(CLU Case) [No Senator or Member of the House of Representatives may 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,
during his term without forfeiting his seat.]
II. Cannot directly or indirectly
a. Practice any profession
b. Participate in business
c. Be interested in contracts with the government
III. Shall strictly avoid conflict of interest

2004, No. 3: JAR faces a dilemma: Should he accept a Cabinet appointment now or run later for
Senator? Having succeeded in law practice as well as prospered in private business where he
and his wife have substantial investments, he now contemplates public service but without
losing the flexibility to engage in corporate affairs or participate in professional activities within
ethical bounds.

Taking into account the prohibitions and inhibitions of public office whether as Senator or
Secretary, he turns to you for advice to resolve his dilemma. What is your advice? [If JAR
accepts a cabinet post, which of the following will not violate the Constitution?]

n When “allowed by the Constitution”

1. 1. Vice-Pres. As member of the Cabinet
2. 2. Secretary of Justice as member of Judicial and Bar Council
3. 3. Others in an ex officio capacity

n Requisites for ex officio function

1. 1. In accordance with law
2. 2. Without additional compensation
3. 3. Related to primary function
 Questions
1. May a law be passed allowing them to hold 2 positions not in ex oficio capacity? [CLU
case)
2. If they hold another in ex oficio capacity can they receive compensation? [Bitonio and
NAC cases] “per diem, honorarium or allowance or some other euphemism”

3. What about their representative attending meetings on their behalf?

n Highest Paid in 2018
1. BSP Governor – P21M
2. DBP President –P15.8M --
3. BSP Dep Gov – P14.4M
4. BSP Dep Gov – P13.8M
5. BSP Dep Gov – P13.5M
6. Solicitor General – P12.4M
7. BSP Ass/Gov- P11.3M
8. GSIS President – P11.1M
9. Chief Justice – P10.9M
10. BSP Ass/Gov – P10.8M

n Cabinet Members: 2018 but reported only on May 2019

1. DOST Secretary -P4.1M
2. DepEd Secretary -P3.9M
3. Health Secretary –P3.7M
4. Finance Secretary – P3.7M
5. Energy Secretary – P3.5M
6. Transportation Secretary – P3.5M
7. Executive/Labor Secretary –P3.4M
8. Agriculture Secretary – P3.4M
9. Legal Adviser/Spokesman – P3.4M

2002, No. 6: M is the Secretary of Finance. He is also an ex oficio member of the Monetary
Board of the Bangko Sentral ng Pilipinas from which he receives additional compensation for
every Board meeting attended.
A. Can he hold both positions?
B. Is he entitled to compensation?

1996, No. 7:
(1) Can the Judge Advocate General of the AFP be appointed as Trustee of the GSIS?
(2) Can the Secretary of Finance be elected as Chairman of the Board of Directors of San Miguel
Corporation?

What about other lesser officials?

Art. IX, B, Sec. 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 provided 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. (Baguio City Mayor as Contact Tracing Czar – July 13, 2020) See Flores v. Drilon,
June 22, 1993

Public Interest Center v. Elma, 494 SCRA 53 (2006)

PCGG Chair and Presidential Legal Counsel

1. Which prohibition applies?
2. Will he forfeit both?

Funa v. Ermita, (2010) Undersecretary of the DOTC designated as OIC Administrator of MARINA
(Maritime Industry Authority)

Funa v. Acting Secretary, 691 SCRA 196 (2013)

On March 1, 2010, President Arroyo appointed Agra as the Acting Secretary of Justice following
the resignation of Secretary Devanadera. On March 5, 2010, President Arroyo designated Agra
as the Acting Solicitor General in a concurrent capacity. Since both appointments are only
acting capacities, is there a violation of Sec. 13, Art. VII, of the Constitution which prohibits
members of the Cabinet from holding any other office during their tenure?

Prohibitions on presidential appointments- SCOPE

-Spouse, relatives within the 4th civil degree by affinity or consaguinity
1. Members of the Constitutional Commissions
2. Ombudsman
3. Secretaries or undersecretaries
4. Chairmen or heads of bureaus or office including gov-owned or controlled corporations

Other similar prohibitions:

1. Civil Service Law (nepotism)
2. Local Government Code (Sec. 79)

Types of Appointments (Sec. 14-16)

1. Those made by the acting President
2. Midnight appointments
3. Regular Appointments
4. Ad Interim Appointments
5. [Acting Appointments?]

Sec. 14. Appointments extended by an Acting President shall remain effective, unless revoked
by the elected President within ninety days from his assumption of reassumption of office.
Sec. 15. Two months immediately before the next Presidential elections and up to the end of
his term. A President or acting President shall not make appointments except temporary
appointments to executive positions when continued vacancy therein will prejudice public
service or endanger public safety.

Villanueva and De Rama Cases-

Midnight Appointments
1. How long is the prohibition?
2. What are the exceptions?

A.
(1) Temporary appointments
(2) executive positions
(3) if continued vacancy will prejudice public service or endanger public safety

B. Supreme Court Justices-

De Castro v. JBC, 615 SCRA 666 (2010)
Velicaria-Garafil v. Office, 758 SCRA 414 (2015)

1. Can someone appointed before the prohibition take his oath and assume during the
“midnight” period? (To be valid, the entire process –appointment, transmittal, oath-taking and
acceptance must take place before the commencement of the ban on “midnight
appointments.” )

2. Can one be appointed to an office before the ban takes effect to an office that will become
vacant only after the ban?

2014, VII. Margie has been in the judiciary for a long time, starting from the lowest court.
Twenty (20) years from her first year in the judiciary, she was nominated as a Justice in the
Court of Appeals. Margie also happens to be a first-degree cousin of the President. The Judicial
and Bar Council included her in the short-list submitted to the President whose term of office
was about to end – it was a month before the next presidential elections. Can the President still
make appointments to the judiciary during the so-called midnight appointment ban period?
Assuming that he can still make appointments, could he appoint Margie, his cousin? (4%)

Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the courts, or in
the heads of departments, agencies, commissions, or boards.