G.R. No.
145368            April 12, 2002 dated
SALVADOR H. LAUREL, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as
Ombudsman, respondent.
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued
Administrative Order No. 223 "constituting a Committee for the
preparation of the National Centennial Celebration in 1998." The
Committee was mandated "to take charge of the nationwide
preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress."1
Subsequently, President Fidel V. Ramos issued Executive Order
No. 128, "reconstituting the Committee for the preparation of the
National Centennial Celebrations in 1988." It renamed the
Committee as the "National Centennial Commission." Appointed
to chair the reconstituted Commission was Vice-President
Salvador H. Laurel. Presidents Diosdado M. Macapagal and
Corazon C. Aquino were named Honorary Chairpersons.2
Characterized as an "i body," the existence of the Commission
"shall terminate upon the completion of all activities related to
the Centennial Celebrations."3 Like its predecessor Committee,
the Commission was tasked to "take charge of the nationwide
preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress."
Per Section 6 of the Executive Order, the Commission was also
charged with the responsibility to "prepare, for approval of the
President, a Comprehensive Plan for the Centennial Celebrations
within six (6) months from the effectivity of" the Executive
Order.
E.O. No. 128 also contained provisions for staff support and
funding:
Sec. 3. The Commission shall be provided with technical
and administrative staff support by a Secretariat to be
composed of, among others, detailed personnel from
the Presidential Management Staff, the National
Commission for Culture and the Arts, and the National
Historical Institute. Said Secretariat shall be headed by
a full time Executive Director who shall be designated by
the President.
Sec. 4. The Commission shall be funded with an initial
budget to be drawn from the Department of Tourism
and the president’s Contingent Fund, in an amount to be
recommended by the Commission, and approved by the
President. Appropriations for succeeding years shall be
incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial
Expo ’98 Corporation (Expocorp) was created.4 Petitioner was
among the nine (9) Expocorp incorporators, who were also its
first nine (9) directors. Petitioner was elected Expocorp Chief
Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a
privilege speech in the Senate denouncing alleged anomalies in
the construction and operation of the Centennial Exposition
Project at the Clark Special Economic Zone. Upon motion of
Senator Franklin Drilon, Senator Coseteng’s privilege speech was
referred to the Committee on Accountability of Public Officers and
Investigation (The Blue Ribbon Committee) and several other
Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued
Administrative Order No. 35, creating an ad hoc and independent
citizens’ committee to investigate all the facts and circumstances
surrounding the Philippine centennial projects, including its
component activities. Former Senator Rene A.V. Saguisag was
appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with
the Secretary of the Senate its Committee Final Report No. 30
February 26, 1999. Among the Committee’s
recommendations was "the prosecution by the Ombudsman/DOJ
of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for
violating the rules on public bidding, relative to the award of
centennial contracts to AK (Asia Construction & Development
Corp.); for exhibiting manifest bias in the issuance of the NTP
(Notice to Proceed) to AK to construct the FR (Freedom Ring)
even in the absence of a valid contract that has caused material
injury to government and for participating in the scheme to
preclude audit by COA of the funds infused by the government
for the implementation of the said contracts all in violation… of
the anti-graft law."5
Later, on November 5, 1999, the Saguisag Committee issued its
own report. It recommended "the further investigation by the
Ombudsman, and indictment, in proper cases of," among others,
NCC Chair Salvador H. Laurel for violations of Section 3(e) of
R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No.
6713, and Article 217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag
Committee were apparently referred to the Fact-finding and
Intelligence Bureau of the Office of the Ombudsman. On January
27, 2000, the Bureau issued its Evaluation Report,
recommending:
1. that a formal complaint be filed and preliminary
investigation be conducted before the Evaluation and
Preliminary Investigation Bureau (EPIB), Office of the
Ombudsman against former NCC and EXPOCORP chair
Salvador H. Laurel, former EXPOCORP President
Teodoro Q. Peña and AK President Edgardo H. Angeles
for violation of Sec. 3(e) and (g) of R.A. No. 3019, as
amended in relation to PD 1594 and COA Rules and
Regulations;
2. That the Fact Finding and Intelligence Bureau of this
Office, act as the nominal complainant.6
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-
Director of the Evaluation and Preliminary Investigation Bureau,
directed petitioner to submit his counter-affidavit and those of
his witnesses.
On April 24, 2000, petitioner filed with the Office of the
Ombudsman a Motion to Dismiss questioning the jurisdiction of
said office.
In an Order dated June 13, 2000, the Ombudsman denied
petitioner’s motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the
June 13, 2000 Order but the motion was denied in an Order
dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for
certiorari.
On November 14, 2000, the Evaluation and Preliminary
Investigation Bureau issued a resolution finding "probable cause
to indict respondents SALVADOR H. LAUREL and TEODORO Q.
PEÑA before the Sandiganbayan for conspiring to violate Section
3(e) of Republic Act No. 3019, in relation to Republic Act No.
1594." The resolution also directed that an information for
violation of the said law be filed against Laurel and Peña.
Ombudsman Aniano A. Desierto approved the resolution with
respect to Laurel but dismissed the charge against Peña.
In a Resolution dated September 24, 2001, the Court issued a
temporary restraining order, commanding respondents to desist
from filing any information before the Sandiganbayan or any
court against petitioner for alleged violation of Section 3(e) of the
Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner,
heard the parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the
ground that he is not a public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER
LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN
CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT
AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS
A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR
CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A
PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF
EXPOCORP WAS NOT A "PUBLIC OFFICER" AS DEFINED UNDER
THE ANTI-GRAFT & CORRUPT PRACTICES ACT.7
In addition, petitioner in his reply8 invokes this Court’s decision
in Uy vs. Sandiganbayan,9 where it was held that the jurisdiction
of the Ombudsman was limited to cases cognizable by the
Sandiganbayan, i.e., over public officers of Grade 27 and higher.
As petitioner’s position was purportedly not classified as Grade
27 or higher, the Sandiganbayan and, consequently, the
Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Court’s decision in
Uy, we held that "it is the prosecutor, not the Ombudsman, who
has the authority to file the corresponding information/s against
petitioner in the regional trial court. The Ombudsman exercises
prosecutorial powers only in cases cognizable by the
Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize
the authority of the State and regular provincial and city
prosecutors under the Department of Justice to have
control over prosecution of cases falling within the
jurisdiction of the regular courts. The investigation and
prosecutorial powers of the Ombudsman relate to cases
rightfully falling within the jurisdiction of the
Sandiganbayan under Section 15 (1) of R.A. 6770 ("An
Act Providing for the Functional and Structural
Organization of the Office of the Ombudsman, and for
other purposes") which vests upon the Ombudsman
"primary jurisdiction over cases cognizable by the
Sandiganbayan…" And this is further buttressed by
Section 11 (4a) of R.A. 6770 which emphasizes that the
Office of the Special Prosecutor shall have the power to
"conduct preliminary investigation and prosecute
criminal cases within the jurisdiction of the
Sandiganbayan." Thus, repeated references to the
Sandiganbayan’s jurisdiction clearly serve to limit the
Ombudsman’s and Special Prosecutor’s authority to
cases cognizable by the Sandiganbayan. [Emphasis in
the original.]
The foregoing ruling in Uy, however, was short-lived. Upon
motion for clarification by the Ombudsman in the same case, the
Court set aside the foregoing pronouncement in its Resolution
dated March 20, 2001. The Court explained the rationale for this
reversal:
The power to investigate and to prosecute granted by
law to the Ombudsman is plenary and unqualified. It
pertains to any act or omission of any public officer or
employee when such act or omission appears to be
illegal, unjust, improper or inefficient. The law does not
make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts.
It has been held that the clause "any illegal act or
omission of any public official" is broad enough to
embrace any crime committed by a public officer or
employee.
The reference made by RA 6770 to cases cognizable by
the Sandiganbayan, particularly in Section 15(1) giving
the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11(4)
granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases
within the jurisdiction of the Sandiganbayan, should not
be construed as confining the scope of the investigatory
and prosecutory power of the Ombudsman to such
cases.
Section 15 of RA 6770 gives the Ombudsman primary
jurisdiction over cases cognizable by the
Sandiganbayan. The law defines such primary
jurisdiction as authorizing the Ombudsman "to take
over, at any stage, from any investigatory agency of the
government, the investigation of such cases." The grant
of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public
officers and employees by other courts. The exercise by
the Ombudsman of his primary jurisdiction over cases
cognizable by the Sandiganbayan is not incompatible
with the discharge of his duty to investigate and
prosecute other offenses committed by public officers
and employees. Indeed, it must be stressed that the
powers granted by the legislature to the Ombudsman
are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public
officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the
Ombudsman should not be equated with the limited
authority of the Special Prosecutor under Section 11 of
RA 6770. The Office of the Special Prosecutor is merely
a component of the Office of the Ombudsman and may
only act under the supervision and control and upon
authority of the Ombudsman. Its power to conduct
preliminary investigation and to prosecute is limited to
criminal cases within the jurisdiction of the
Sandiganbayan. Certainly, the lawmakers did not intend
to confine the investigatory and prosecutory power of
the Ombudsman to these types of cases. The
Ombudsman is mandated by law to act on all complaints
against officers and employees of the government and
to enforce their administrative, civil and criminal liability
in every case where the evidence warrants. To carry out
this duty, the law allows him to utilize the personnel of
his office and/or designate any fiscal, state prosecutor
or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation
and prosecution of certain cases. Those designated or
deputized to assist him work under his supervision and
control. The law likewise allows him to direct the Special
Prosecutor to prosecute cases outside the
Sandiganbayan’s jurisdiction in accordance with Section
11 (4c) of RA 6770.
The prosecution of offenses committed by public officers
and employees is one of the most important functions of
the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power
to make him a more active and effective agent of the
people in ensuring accountability in public office. A
review of the development of our Ombudsman law
reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal
grounds upon which petitioner relies. We first address the
argument that petitioner, as Chair of the NCC, was not a public
officer.
The Constitution10 describes the Ombudsman and his Deputies
as "protectors of the people," who "shall act promptly on
complaints filed in any form or manner against public officials or
employees of the government, or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations." Among the awesome powers, functions,
and duties vested by the Constitution11 upon the Office of the
Ombudsman is to "[i]nvestigate… any act or omission of any
public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient."
The foregoing constitutional provisions are substantially
reproduced in R.A. No. 6770, otherwise known as the
"Ombudsman Act of 1989." Sections 13 and 15(1) of said law
respectively provide:
SEC. 13. Mandate. – The Ombudsman and his Deputies,
as protectors of the people shall act promptly on
complaints file in any form or manner against officers or
employees of the Government, or of any subdivision,
agency or instrumentality thereof, including
 government-owned or controlled corporations, and
enforce their administrative, civil and criminal liability in
every case where the evidence warrants in order to
promote efficient service by the Government to the
people.
SEC. 15. Powers, Functions and Duties. – The Office of
the Ombudsman shall have the following powers,
functions and duties:
(1) Investigate and prosecute on its own or on
complaint by any person, any act or omission of any
public officer or employee, office or agency, when such
act or omission appears to be illegal unjust, improper or
inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of
this primary jurisdiction, it may take over, at any stage,
from any investigatory agency of Government, the
investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section
16, in relation to Section 13, supra:
SEC 16. Applicability. – The provisions of this Act shall
apply to all kinds of malfeasance, misfeasance and non-
feasance that have been committed by any officer or
employee as mentioned in Section 13 hereof, during his
tenure of office.
In sum, the Ombudsman has the power to investigate any
malfeasance, misfeasance and non-feasance by a public officer or
employee of the government, or of any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations.12
Neither the Constitution nor the Ombudsman Act of 1989,
however, defines who public officers are. A definition of public
officers cited in jurisprudence13 is that provided by Mechem, a
recognized authority on the subject:
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 invested with some
portion of the sovereign functions of the government, to
be exercised by him for the benefit of the public. The
individual so invested is a public officer.14
The characteristics of a public office, according to Mechem,
include the delegation of sovereign functions, its creation by law
and not by contract, an oath, salary, continuance of the position,
scope of duties, and the designation of the position as an
office.15
Petitioner submits that some of these characteristics are not
present in the position of NCC Chair, namely: (1) the delegation
of sovereign functions; (2) salary, since he purportedly did not
receive any compensation; and (3) continuance, the tenure of
the NCC being temporary.
Mechem describes the delegation to the individual of some of the
sovereign functions of government as "[t]he most important
characteristic" in determining whether a position is a public office
or not.
The most important characteristic which distinguishes
an office from an employment or contract is that the
creation and conferring of an office involves a delegation
to the individual of some of the sovereign functions of
government, to be exercised by him for the benefit of
the public; – that some portion of the sovereignty of the
country, either legislative, executive or judicial,
attaches, for the time being, to be exercised for the
public benefit. Unless the powers conferred are of this
nature, the individual is not a public officer.16
Did E.O. 128 delegate the NCC with some of the sovereign
functions of government? Certainly, the law did not delegate
upon the NCC functions that can be described as legislative or
judicial. May the functions of the NCC then be described as
executive?
We hold that the NCC performs executive functions. The
executive power "is generally defined as the power to enforce
and administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance."17 The
executive function, therefore, concerns the implementation of the
policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and
Technology, Arts, Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of
the State. The State shall conserve, promote, and
popularize the nation’s historical and cultural heritage
and resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the
creation of the Committee for the National Centennial
Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is
to be celebrated in 1998, and the centennial presents an
important vehicle for fostering nationhood and a strong
sense of Filipino identity;
Whereas, the centennial can effectively showcase
Filipino heritage and thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations
may be insured only through long-range planning and
continuous developmental programming;
Whereas, the active participation of the private sector in
all areas of special expertise and capability, particularly
in communication and information dissemination, is
necessary for long-range planning and continuous
developmental programming;
Whereas, there is a need to create a body which shall
initiate and undertake the primary task of harnessing
the multisectoral components from the business,
cultural, and business sectors to serve as effective
instruments from the launching and overseeing of this
long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National
Centennial Celebrations in 1998, cited the "need to strengthen
the said Committee to ensure a more coordinated and
synchronized celebrations of the Philippine Centennial and wider
participation from the government and non-government or
private organizations." It also referred to the "need to rationalize
the relevance of historical links with other countries."
The NCC was precisely created to execute the foregoing policies
and objectives, to carry them into effect. Thus, the Commission
was vested with the following functions:
(a) To undertake the overall study, conceptualization,
formulation and implementation of programs and
projects on the utilization of culture, arts, literature and
media as vehicles for history, economic endeavors, and
reinvigorating the spirit of national unity and sense of
accomplishment in every Filipino in the context of the
Centennial Celebrations. In this regard, it shall include a
Philippine National Exposition ’98 within Metro Manila,
the original eight provinces, and Clark Air Base as its
major venues;
(b) To act as principal coordinator for all the activities
related to awareness and celebration of the Centennial;
(c) To serve as the clearing house for the preparation
and dissemination of all information about the plans and
events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake
the implementation of the programs and projects;
 (e) To prioritize the refurbishment of historical sites and
structures nationwide. In this regard, the Commission
shall formulate schemes (e.g. lease-maintained-and-
transfer, build-operate-transfer, and similar
arrangements) to ensure the preservation and
maintenance of the historical sites and structures;
(f) To call upon any government agency or
instrumentality and corporation, and to invite private
individuals and organizations to assist it in the
performance of its tasks; and,
(g) Submit regular reports to the President on the plans,
programs, projects, activities as well as the status of the
preparations for the Celebration.18
It bears noting the President, upon whom the executive power is
vested,19 created the NCC by executive order. Book III (Office of
the President), Chapter 2 (Ordinance Power), Section 2 describes
the nature of executive orders:
SEC. 2. Executive Orders. – Acts of the President
providing for rules of a general or permanent character
in implementation or execution of constitutional or
statutory powers shall be promulgated in executive
orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the country’s
economic development, especially in Central Luzon. Petitioner
himself admitted as much in the oral arguments before this
Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former
President Ramos, don’t you agree that the task
of the centennial commission was also to focus
on the long term over all socio economic
development of the zone and Central Luzon by
attracting investors in the area because of the
eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because
that is something I wanted to touch on by lack
of material time I could not but that is a very
important point. When I was made Chairman I
wanted the Expo to be in Batangas because I
am a Batangeño but President Ramos said Mr.
Vice President the Central Luzon is suffering,
suffering because of the eruption of Mt.
Pinatubo let us try to catalize [sic] economic
recovery in that area by putting this Expo in
Clark Field and so it was done I agreed and
Your Honor if I may also mention we wanted to
generate employment aside from attracting
business investments and employment. And
the Estrada administration decided to junk this
project there 48, 40 thousand people who lost
job, they were employed in Expo. And our
target was to provide 75 thousand jobs. It
would have really calibrated, accelerated the
development of Central Luzon. Now, I think
they are going back to that because they had
the airport and there are plan to revive the
Expo site into key park which was the original
plan.
There can hardly be any dispute that the promotion of
industrialization and full employment is a fundamental state
policy.20
Petitioner invokes the ruling of this Court in Torio vs.
Fontanilla21 that the holding by a municipality of a town fiesta is
a proprietary rather than a governmental function. Petitioner
argues that the "holding of a nationwide celebration which
marked the nation’s 100th birthday may be likened to a national
fiesta which involved only the exercise of the national
government’s proprietary function."22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the
Revised Administrative Code] simply gives authority to
the municipality to [celebrate] a yearly fiesta but it does
not impose upon it a duty to observe one. Holding a
fiesta even if the purpose is to commemorate a religious
or historical event of the town is in essence an act for
the special benefit of the community and not for the
general welfare of the public performed in pursuance of
a policy of the state. The mere fact that the celebration,
as claimed, was not to secure profit or gain but merely
to provide entertainment to the town inhabitants is not
a conclusive test. For instance, the maintenance of
parks is not a source of income for the town,
nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools,
jails, and the like which are for public service.
As stated earlier, there can be no hard and fast rule for
purposes of determining the true nature of an
undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be
considered and will be decisive. The basic element,
however beneficial to the public the undertaking may
be, is that it is government in essence, otherwise, the
function becomes private or propriety in character.
Easily, no governmental or public policy of the state is
involved in the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing
doctrine. Note that the Court cautioned that "there can be no
hard and fast rule for purposes of determining the true nature of
an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will
be decisive." Thus, in footnote 15 of Torio, the Court, citing an
American case, illustrated how the "surrounding circumstances
plus the political, social, and cultural backgrounds" could produce
a conclusion different from that in Torio:
We came across an interesting case which shows that
surrounding circumstances plus the political, social, and
cultural backgrounds may have a decisive bearing on
this question. The case of Pope v. City of New Haven, et
al. was an action to recover damages for personal
injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have
been caused by defendants’ negligence. The defendants
demurred to the complaint invoking the defense that the
city was engaged in the performance of a public
governmental duty from which it received no pecuniary
benefit and for negligence in the performance of which
no statutory liability is imposed. This demurrer was
sustained by the Superior Court of New Haven Country.
Plaintiff sought to amend his complaint to allege that
the celebration was for the corporate advantage of the
city. This was denied. In affirming the order, the
Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the
negligent performance of purely public governmental
duties, unless made liable by statute….
A municipality corporation, which under permissive
authority of its charter or of statute, conducted a public
Fourth of July celebration, including a display of
fireworks, and sent up a bomb intended to explode in
the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the
performance of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while
two dissented.
At any rate the rationale of the Majority Opinion is
evident from [this] excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is
made a public holiday, called Independence Day, by our
statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making
a similar provision, the different departments of the
government recognize, and have recognized since the
government was established, July 4th as a national
holiday. Throughout the country it has been recognized
and celebrated as such. These celebrations, calculated
to entertain and instruct the people generally and to
arouse and stimulate patriotic sentiments and love of
country, frequently take the form of literary exercises
 consisting of patriotic speeches and the reading of the
Constitution, accompanied by a musical program
including patriotic air sometimes preceded by the firing
of cannon and followed by fireworks. That such
celebrations are of advantage to the general public and
their promotion a proper subject of legislation can
hardly be questioned. x x x"
Surely, a town fiesta cannot compare to the National Centennial
Celebrations. The Centennial Celebrations was meant to
commemorate the birth of our nation after centuries of struggle
against our former colonial master, to memorialize the liberation
of our people from oppression by a foreign power. 1998 marked
100 years of independence and sovereignty as one united nation.
The Celebrations was an occasion to reflect upon our history and
reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle
for fostering nationhood and a strong sense of Filipino identity,"
an opportunity to "showcase Filipino heritage and thereby
strengthen Filipino values." The significance of the Celebrations
could not have been lost on petitioner, who remarked during the
hearing:
Oh, yes, certainly the State is interested in the unity of
the people, we wanted to rekindle the love for freedom,
love for country, that is the over-all goal that has to
make everybody feel proud that he is a Filipino, proud of
our history, proud of what our forefather did in their
time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a
public office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during
his tenure is of little consequence. A salary is a usual but not a
necessary criterion for determining the nature of the position. It
is not conclusive. The salary is a mere incident and forms no part
of the office. Where a salary or fees is annexed, the office is
provided for it is a naked or honorary office, and is supposed to
be accepted merely for the public good.23 Hence, the office of
petitioner as NCC Chair may be characterized as an honorary
office, as opposed to a lucrative office or an office of profit, i.e.,
one to which salary, compensation or fees are attached.24 But it
is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No.
128 as an "ad-hoc body" make said commission less of a public
office.
The term office, it is said, embraces the idea of tenure
and duration, and certainly a position which is merely
temporary and local cannot ordinarily be considered an
office. "But," says Chief Justice Marshall, "if a duty be a
continuing one, which is defined by rules prescribed by
the government and not by contract, which an individual
is appointed by government to perform, who enters on
the duties pertaining to his station without any contract
defining them, if those duties continue though the
person be changed, -- it seems very difficult to
distinguish such a charge or employment from an office
of the person who performs the duties from an officer."
At the same time, however, this element of continuance
can not be considered as indispensable, for, if the other
elements are present "it can make no difference," says
Pearson, C.J., "whether there be but one act or a series
of acts to be done, -- whether the office expires as soon
as the one act is done, or is to be held for years or
during good behavior."25
Our conclusion that petitioner is a public officer finds support in
In Re Corliss.26 There the Supreme Court of Rhode Island ruled
that the office of Commissioner of the United States Centennial
Commission is an "office of trust" as to disqualify its holder as
elector of the United States President and Vice-President. (Under
Article II of the United States Constitution, a person holding an
office of trust or profit under the United States is disqualified
from being appointed an elector.)
x x x. We think a Commissioner of the United States
Centennial Commission holds an office of trust under
the United States, and that he is therefore disqualified
for the office of elector of President and Vice-President
of the United States.
The commission was created under a statute of the
United States approved March 3, 1871. That statute
provides for the holding of an exhibition of American
and foreign arts, products, and manufactures, "under
the auspices of the government of the United States,"
and for the constitution of a commission, to consist of
more than one delegate from each State and from each
Territory of the United States, "whose functions shall
continue until close of the exhibition," and "whose duty
it shall be to prepare and superintend the execution of
the plan for holding the exhibition." Under the statute
the commissioners are appointed by the President of the
United States, on the nomination of the governor of the
States and Territories respectively. Various duties were
imposed upon the commission, and under the statute
provision was to be made for it to have exclusive control
of the exhibit before the President should announce, by
proclamation, the date and place of opening and holding
the exhibition. By an act of Congress approved June 1st,
1872, the duties and functions of the commission were
further increased and defined. That act created a
corporation, called "The Centennial Board of Finance," to
cooperate with the commission and to raise and
disburse the funds. It was to be organized under the
direction of the commission. The seventh section of the
act provides "that the grounds for exhibition shall be
prepared and the buildings erected by the corporation,
in accordance with plans which shall have been adopted
by the United States Centennial Commission; and the
rules and regulations of said corporation, governing
rates for entrance and admission fees, or otherwise
affecting the rights, privileges, or interests of the
exhibitors, or of the public, shall be fixed and
established by the United States Centennial
Commission; and no grant conferring rights or privileges
of any description connected with said grounds or
buildings, or relating to said exhibition or celebration,
shall be made without the consent of the United States
Centennial Commission, and said commission shall have
power to control, change, or revoke all such grants, and
shall appoint all judges and examiners and award all
premiums." The tenth section of the act provides that "it
shall be the duty of the United States Centennial
Commission to supervise the closing up of the affairs of
said corporation, to audit its accounts, and submit in a
report to the President of the United States the financial
results of the centennial exhibition."
It is apparent from this statement, which is but partial,
that the duties and functions of the commission were
various, delicate, and important; that they could be
successfully performed only by men of large experience
and knowledge of affairs; and that they were not merely
subordinate and provisional, but in the highest degree
authoritative, discretionary, and final in their character.
We think that persons performing such duties and
exercising such functions, in pursuance of statutory
direction and authority, are not to be regarded as mere
employees, agents, or committee men, but that they
are, properly speaking, officers, and that the places
which they hold are offices. It appears, moreover, that
they were originally regarded as officers by Congress;
for the act under which they were appointed declares,
section 7, that "no compensation for services shall be
paid to the commissioners or other officers, provided for
in this act, from the treasury of the United States." The
only other officers provided for were the "alternates"
appointed to serve as commissioners when the
commissioners were unable to attend.
Having arrived at the conclusion that the NCC performs executive
functions and is, therefore, a public office, we need no longer
delve at length on the issue of whether Expocorp is a private or a
public corporation. Even assuming that Expocorp is a private
corporation, petitioner’s position as Chief Executive Officer (CEO)
of Expocorp arose from his Chairmanship of the NCC.
Consequently, his acts or omissions as CEO of Expocorp must be
viewed in the light of his powers and functions as NCC Chair.27
Finally, it is contended that since petitioner supposedly did not
receive any compensation for his services as NCC or Expocorp
Chair, he is not a public officer as defined in Republic Act No.
3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore,
beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 police personnel, whether or not they receive
(e) of said law, which reads: compensation, regardless of amount.

SEC. 3. Corrupt practices of public officers. – In addition Which of these definitions should apply, if at all?
to acts or omissions of public officers already penalized
by existing law, the following shall constitute corrupt
Assuming that the definition of public officer in R.A. No. 3019 is
practices of any public officer and are hereby declared
exclusive, the term "compensation," which is not defined by said
to be unlawful:
law, has many meanings.

xxx
Under particular circumstances, "compensation" has
been held to include allowance for personal expenses,
(e) Causing any undue injury to any party, including the commissions, expenses, fees, an honorarium, mileage
Government, or giving any private party any or traveling expenses, payments for services, restitution
unwarranted benefits, advantage or preference in the or a balancing of accounts, salary, and wages.30
discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith
How then is "compensation," as the term is used in Section 2 (b)
or gross inexcusable negligence. This provision shall
of R.A. No. 3019, to be interpreted?
apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions. Did petitioner receive any compensation at all as NCC Chair?
Granting that petitioner did not receive any salary, the records
do not reveal if he received any allowance, fee, honorarium, or
A "public officer," under R.A. No. 3019, is defined by Section 2 of
some other form of compensation. Notably, under the by-laws of
said law as follows:
Expocorp, the CEO is entitled to per diems and compensation.31
Would such fact bear any significance?
SEC. 2. Definition of terms. – As used in this Act, the
term –
Obviously, this proceeding is not the proper forum to settle these
issues lest we preempt the trial court from resolving them.
xxx
WHEREFORE, the petition is DISMISSED. The preliminary
(b) "Public officer" includes elective and appointive injunction issued in the Court’s Resolution dated September 24,
officials and employees, permanent or temporary, 2001 is hereby LIFTED.
whether in the classified or unclassified or exemption
service receiving compensation, even nominal, from the
SO ORDERED.
government as defined in the preceding paragraph.
[Emphasis supplied.]
Puno, and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., (Chairman), no part due to close relation to a
It is clear from Section 2 (b), above, that the definition of a
party.
"public officer" is expressly limited to the application of R.A. No.
3019. Said definition does not apply for purposes of determining
the Ombudsman’s jurisdiction, as defined by the Constitution and
the Ombudsman Act of 1989.

Moreover, the question of whether petitioner is a public officer

under the Anti-Graft and Corrupt Practices Act involves the
appreciation of evidence and interpretation of law, matters that
are best resolved at trial.

To illustrate, the use of the term "includes" in Section 2 (b)

indicates that the definition is not restrictive.28 The Anti-Graft
and Corrupt Practices Act is just one of several laws that define
"public officers." Article 203 of the Revised Penal Code, for
example, provides that a public officer is:

x x x any person who, by direct provision of law,

popular election or appointment by competent authority,
takes part in the performance of public functions in the
Government of Philippines, or performs in said
Government or in any of its branches public duties as an
employee, agent or subordinate official, of any rank or
class.

Section 2 (14) of the Introductory Provisions of the

Administrative Code of 1987,29 on the other hand, states:

Officer – as distinguished from "clerk" or "employee",

refers to a person whose duties not being of a clerical or
manual nature, involves the exercise of discretion in the
performance of the functions of the government. When
used with reference to a person having authority to do a
particular act or perform a particular person in the
exercise of governmental power, "officer" includes any
government employee, agent or body having authority
to do the act or exercise that function.

It bears noting that under Section 3 (b) of Republic Act No. 6713
(The Code of Conduct and Ethical Standards for Public Officials
and Employees), one may be considered a "public official"
whether or not one receives compensation, thus:

"Public Officials" include elective and appointive officials

and employees, permanent or temporary, whether in
the career or non-career service including military and