Liban vs. Gordon (2009)

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610 Phil. 476

EN BANC

[ G.R. No. 175352, July 15, 2009 ]

DANTE V. LIBAN, REYNALDO M. BERNARDO, AND SALVADORM. VIARI, PETITIONERS, VS. RICHARD J. GORDON,

RESPONDENT.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition to declare Senator Richard J. Gordon (respondent) as havingforfeited his seat in the Senate.

The Facts

Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari(petitioners) filed with this Court a Petition to Declare Richard J. Gordon asHaving Forfeited His Seat in the Senate. Petitioners are officers of the Board ofDirectors of the Quezon City Red Cross Chapter while respondent is Chairman ofthe Philippine National Red Cross (PNRC) Board of Governors.

During respondent's incumbency as a member of the Senate of the Philippines,[1]

he was elected Chairman of the PNRC during the 23 February 2006 meeting ofthe PNRC Board of Governors. Petitioners allege that by accepting thechairmanship of the PNRC Board of Governors, respondent has ceased to be amember of the Senate as provided in Section 13, Article VI of the Constitution,which reads:

SEC. 13. No Senator or Member of the House of Representatives mayhold any other office or employment in the Government, or anysubdivision, agency, or instrumentality thereof, including governmentowned or controlled corporations or their subsidiaries, during his termwithout forfeiting his seat. Neither shall he be appointed to any officewhich may have been created or the emoluments thereof increasedduring the term for which he was elected.



Petitioners cite Camporedondo v. NLRC,[2] which held that the PNRC is agovernmentowned or controlled corporation. Petitioners claim that in acceptingand holding the position of Chairman of the PNRC Board of Governors,respondent has automatically forfeited his seat in the Senate, pursuant to Floresv. Drilon,[3] which held that incumbent national legislators lose their electiveposts upon their appointment to another government office.

In his Comment, respondent asserts that petitioners have no standing to file thispetition which appears to be an action for quo warranto, since the petition allegesthat respondent committed an act which, by provision of law, constitutes aground for forfeiture of his public office. Petitioners do not claim to be entitled tothe Senate office of respondent. Under Section 5, Rule 66 of the Rules of CivilProcedure, only a person claiming to be entitled to a public office usurped orunlawfully held by another may bring an action for quo warranto in his ownname. If the petition is one for quo warranto, it is already barred by prescriptionsince under Section 11, Rule 66 of the Rules of Civil Procedure, the action shouldbe commenced within one year after the cause of the public officer's forfeiture ofoffice. In this case, respondent has been working as a Red Cross volunteer forthe past 40 years. Respondent was already Chairman of the PNRC Board ofGovernors when he was elected Senator in May 2004, having been electedChairman in 2003 and reelected in 2005.

Respondent contends that even if the present petition is treated as a taxpayer'ssuit, petitioners cannot be allowed to raise a constitutional question in theabsence of any claim that they suffered some actual damage or threatened injuryas a result of the allegedly illegal act of respondent. Furthermore, taxpayers areallowed to sue only when there is a claim of illegal disbursement of public funds,or that public money is being diverted to any improper purpose, or wherepetitioners seek to restrain respondent from enforcing an invalid law that resultsin wastage of public funds.

Respondent also maintains that if the petition is treated as one for declaratoryrelief, this Court would have no jurisdiction since original jurisdiction fordeclaratory relief lies with the Regional Trial Court.

Respondent further insists that the PNRC is not a governmentowned orcontrolled corporation and that the prohibition under Section 13, Article VI of theConstitution does not apply in the present case since volunteer service to thePNRC is neither an office nor an employment.

In their Reply, petitioners claim that their petition is neither an action for quowarranto nor an action for declaratory relief. Petitioners maintain that the presentpetition is a taxpayer's suit questioning the unlawful disbursement of funds,considering that respondent has been drawing his salaries and other



compensation as a Senator even if he is no longer entitled to his office.Petitioners point out that this Court has jurisdiction over this petition since itinvolves a legal or constitutional issue which is of transcendental importance.

The Issues

Petitioners raise the following issues:

1. Whether the Philippine National Red Cross (PNRC) is agovernment owned or controlled corporation;

2. Whether Section 13, Article VI of the Philippine Constitutionapplies to the case of respondent who is Chairman of the PNRCand at the same time a Member of the Senate;

3. Whether respondent should be automatically removed as aSenator pursuant to Section 13, Article VI of the PhilippineConstitution; and

4. Whether petitioners may legally institute this petition againstrespondent.[4]

The substantial issue boils down to whether the office of the PNRC Chairman is agovernment office or an office in a governmentowned or controlled corporationfor purposes of the prohibition in Section 13, Article VI of the Constitution.

The Court's Ruling

We find the petition without merit.

Petitioners Have No Standing to File this Petition

A careful reading of the petition reveals that it is an action for quo warranto.Section 1, Rule 66 of the Rules of Court provides:

Section 1. Action by Government against individuals. An action forthe usurpation of a public office, position or franchise may becommenced by a verified petition brought in the name of theRepublic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or



exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which byprovision of law, constitutes a ground for the forfeiture of hisoffice; or

(c) An association which acts as a corporation within the Philippineswithout being legally incorporated or without lawful authority so toact. (Emphasis supplied)

Petitioners allege in their petition that:

4. Respondent became the Chairman of the PNRC when he waselected as such during the First Regular LuncheonMeeting of theBoard of Governors of the PNRC held on February 23, 2006, theminutes of which is hereto attached and made integral part hereof asAnnex "A."

5. Respondent was elected as Chairman of the PNRC Board ofGovernors, during his incumbency as a Member of the House ofSenate of the Congress of the Philippines, having been elected as suchduring the national elections last May 2004.

6. Since his election as Chairman of the PNRC Board of Governors,which position he duly accepted, respondent has been exercising thepowers and discharging the functions and duties of said office, despitethe fact that he is still a senator.

7. It is the respectful submission of the petitioner[s] that byaccepting the chairmanship of the Board of Governors of thePNRC, respondent has ceased to be a Member of the House ofSenate as provided in Section 13, Article VI of the PhilippineConstitution, x x x

x x x x

10. It is respectfully submitted that in accepting the position ofChairman of the Board of Governors of the PNRC on February23, 2006, respondent has automatically forfeited his seat in theHouse of Senate and, therefore, has long ceased to be aSenator, pursuant to the ruling of this Honorable Court in the case ofFLORES, ET AL. VS. DRILON AND GORDON, G.R. No. 104732, x x x

11. Despite the fact that he is no longer a senator, respondent



continues to act as such and still performs the powers, functions andduties of a senator, contrary to the constitution, law andjurisprudence.

12. Unless restrained, therefore, respondent will continue to falsely actand represent himself as a senator or member of the House of Senate,collecting the salaries, emoluments and other compensations, benefitsand privileges appertaining and due only to the legitimate senators, tothe damage, great and irreparable injury of the Government and theFilipino people.[5] (Emphasis supplied)

Thus, petitioners are alleging that by accepting the position of Chairman of thePNRC Board of Governors, respondent has automatically forfeited his seat in theSenate. In short, petitioners filed an action for usurpation of public office againstrespondent, a public officer who allegedly committed an act which constitutes aground for the forfeiture of his public office. Clearly, such an action is for quowarranto, specifically under Section 1(b), Rule 66 of the Rules of Court.

Quo warranto is generally commenced by the Government as the proper partyplaintiff. However, under Section 5, Rule 66 of the Rules of Court, an individualmay commence such an action if he claims to be entitled to the public officeallegedly usurped by another, in which case he can bring the action in his ownname. The person instituting quo warranto proceedings in his own behalf mustclaim and be able to show that he is entitled to the office in dispute, otherwisethe action may be dismissed at any stage.[6] In the present case, petitioners donot claim to be entitled to the Senate office of respondent. Clearly, petitionershave no standing to file the present petition.

Even if the Court disregards the infirmities of the petition and treats it as ataxpayer's suit, the petition would still fail on the merits.

PNRC is a Private Organization Performing Public Functions

On 22 March 1947, President Manuel A. Roxas signed Republic Act No. 95,[7]

otherwise known as the PNRC Charter. The PNRC is a nonprofit, donorfunded,voluntary, humanitarian organization, whose mission is to bring timely, effective,and compassionate humanitarian assistance for the most vulnerable withoutconsideration of nationality, race, religion, gender, social status, or politicalaffiliation.[8] The PNRC provides six major services: Blood Services, DisasterManagement, Safety Services, Community Health and Nursing, Social Servicesand Voluntary Service.[9]

The Republic of the Philippines, adhering to the Geneva Conventions, establishedthe PNRC as a voluntary organization for the purpose contemplated in the



Geneva Convention of 27 July 1929.[10] The Whereas clauses of the PNRCCharter read:

WHEREAS, there was developed at Geneva, Switzerland, on August22, 1864, a convention by which the nations of the world were invitedto join together in diminishing, so far lies within their power, the evilsinherent in war;

WHEREAS, more than sixty nations of the world have ratified oradhered to the subsequent revision of said convention, namely the"Convention of Geneva of July 29 [sic], 1929 for the Amelioration ofthe Condition of the Wounded and Sick of Armies in the Field"(referred to in this Charter as the Geneva Red Cross Convention);

WHEREAS, the Geneva Red Cross Convention envisages theestablishment in each country of a voluntary organization toassist in caring for the wounded and sick of the armed forcesand to furnish supplies for that purpose;

WHEREAS, the Republic of the Philippines became anindependent nation on July 4, 1946 and proclaimed itsadherence to the Geneva Red Cross Convention on February14, 1947, and by that action indicated its desire to participatewith the nations of the world in mitigating the suffering causedby war and to establish in the Philippines a voluntaryorganization for that purpose as contemplated by the GenevaRed Cross Convention;

WHEREAS, there existed in the Philippines since 1917 a Charter of theAmerican National Red Cross which must be terminated in view of theindependence of the Philippines; and

WHEREAS, the volunteer organizations established in the othercountries which have ratified or adhered to the Geneva Red CrossConvention assist in promoting the health and welfare of their peoplein peace and in war, and through their mutual assistance andcooperation directly and through their international organizationspromote better understanding and sympathy among the peoples ofthe world. (Emphasis supplied)

The PNRC is a member National Society of the International Red Cross and RedCrescent Movement (Movement), which is composed of the InternationalCommittee of the Red Cross (ICRC), the International Federation of Red Crossand Red Crescent Societies (International Federation), and the National Red



Cross and Red Crescent Societies (National Societies). The Movement is unitedand guided by its seven Fundamental Principles:

1. HUMANITY The International Red Cross and Red CrescentMovement, born of a desire to bring assistance without discriminationto the wounded on the battlefield, endeavors, in its international andnational capacity, to prevent and alleviate human suffering wherever itmay be found. Its purpose is to protect life and health and to ensurerespect for the human being. It promotes mutual understanding,friendship, cooperation and lasting peace amongst all peoples.

2. IMPARTIALITY It makes no discrimination as to nationality, race,religious beliefs, class or political opinions. It endeavors to relieve thesuffering of individuals, being guided solely by their needs, and to givepriority to the most urgent cases of distress.

3. NEUTRALITY In order to continue to enjoy the confidenceof all, the Movement may not take sides in hostilities or engageat any time in controversies of a political, racial, religious orideological nature.

4. INDEPENDENCE The Movement is independent. TheNational Societies, while auxiliaries in the humanitarianservices of their governments and subject to the laws of theirrespective countries, must always maintain their autonomy sothat they may be able at all times to act in accordance with theprinciples of the Movement.

5. VOLUNTARY SERVICE It is a voluntary relief movement notprompted in any manner by desire for gain.

6. UNITY There can be only one Red Cross or one Red CrescentSociety in any one country. It must be open to all. It must carry on itshumanitarian work throughout its territory.

7. UNIVERSALITY The International Red Cross and Red CrescentMovement, in which all Societies have equal status and share equalresponsibilities and duties in helping each other, is worldwide.(Emphasis supplied)

The Fundamental Principles provide a universal standard of reference for allmembers of the Movement. The PNRC, as a member National Society of theMovement, has the duty to uphold the Fundamental Principles and ideals of theMovement. In order to be recognized as a National Society, the PNRC has to be



autonomous and must operate in conformity with the Fundamental Principles ofthe Movement.[11]

The reason for this autonomy is fundamental. To be accepted by warringbelligerents as neutral workers during international or internal armed conflicts,the PNRC volunteers must not be seen as belonging to any side of the armedconflict. In the Philippines where there is a communist insurgency and a Muslimseparatist rebellion, the PNRC cannot be seen as governmentowned orcontrolled, and neither can the PNRC volunteers be identified as governmentpersonnel or as instruments of government policy. Otherwise, the insurgents orseparatists will treat PNRC volunteers as enemies when the volunteers tend tothe wounded in the battlefield or the displaced civilians in conflict areas.

Thus, the PNRC must not only be, but must also be seen to be, autonomous,neutral and independent in order to conduct its activities in accordance with theFundamental Principles. The PNRC must not appear to be an instrument oragency that implements government policy; otherwise, it cannot merit the trustof all and cannot effectively carry out its mission as a National Red Cross Society.[12] It is imperative that the PNRC must be autonomous, neutral, andindependent in relation to the State.

To ensure and maintain its autonomy, neutrality, and independence, the PNRCcannot be owned or controlled by the government. Indeed, the Philippinegovernment does not own the PNRC. The PNRC does not have government assetsand does not receive any appropriation from the Philippine Congress.[13] ThePNRC is financed primarily by contributions from private individuals and privateentities obtained through solicitation campaigns organized by its Board ofGovernors, as provided under Section 11 of the PNRC Charter:

SECTION 11. As a national voluntary organization, the PhilippineNational Red Cross shall be financed primarily by contributionsobtained through solicitation campaigns throughout the yearwhich shall be organized by the Board of Governors andconducted by the Chapters in their respective jurisdictions.These fund raising campaigns shall be conducted independently ofother fund drives by other organizations. (Emphasis supplied)

The government does not control the PNRC. Under the PNRC Charter, asamended, only six of the thirty members of the PNRC Board of Governorsare appointed by the President of the Philippines. Thus, twentyfourmembers, or fourfifths (4/5), of the PNRC Board of Governors are not appointedby the President. Section 6 of the PNRC Charter, as amended, provides:



SECTION 6. The governing powers and authority shall be vested in aBoard of Governors composed of thirty members, six of whom shall beappointed by the President of the Philippines, eighteen shall be electedby chapter delegates in biennial conventions and the remaining sixshall be selected by the twentyfour members of the Board alreadychosen. x x x.

Thus, of the twentyfour members of the PNRC Board, eighteen are elected bythe chapter delegates of the PNRC, and six are elected by the twentyfourmembers already chosen a select group where the private sector membershave threefourths majority. Clearly, an overwhelming majority of fourfifths of the PNRC Board are elected or chosen by the private sectormembers of the PNRC.

The PNRC Board of Governors, which exercises all corporate powers of the PNRC,elects the PNRC Chairman and all other officers of the PNRC. The incumbentChairman of PNRC, respondent Senator Gordon, was elected, as all PNRCChairmen are elected, by a private sectorcontrolled PNRC Board fourfifthsof whom are private sector members of the PNRC. The PNRC Chairman is notappointed by the President or by any subordinate government official.

Under Section 16, Article VII of the Constitution,[14] the Presidentappoints all officials and employees in the Executive branch whoseappointments are vested in the President by the Constitution or bylaw. The President also appoints those whose appointments are nototherwise provided by law. Under this Section 16, the law may alsoauthorize the "heads of departments, agencies, commissions, orboards" to appoint officers lower in rank than such heads ofdepartments, agencies, commissions or boards.[15] In Rufino v.Endriga,[16] the Court explained appointments under Section 16 inthis wise:

Under Section 16, Article VII of the 1987 Constitution, the Presidentappoints three groups of officers. The first group refers to the heads ofthe Executive departments, ambassadors, other public ministers andconsuls, officers of the armed forces from the rank of colonel or navalcaptain, and other officers whose appointments are vested in thePresident by the Constitution. The second group refers to those whomthe President may be authorized by law to appoint. The third grouprefers to all other officers of the Government whose appointments arenot otherwise provided by law.

Under the same Section 16, there is a fourth group of lowerranked



officers whose appointments Congress may by law vest in the heads ofdepartments, agencies, commissions, or boards. x x x

x x x

In a department in the Executive branch, the head is the Secretary.The law may not authorize the Undersecretary, acting as suchUndersecretary, to appoint lowerranked officers in the Executivedepartment. In an agency, the power is vested in the head of theagency for it would be preposterous to vest it in the agency itself. In acommission, the head is the chairperson of the commission. In aboard, the head is also the chairperson of the board. In the last threesituations, the law may not also authorize officers other than theheads of the agency, commission, or board to appoint lowerrankedofficers.

x x x

The Constitution authorizes Congress to vest the power to appointlowerranked officers specifically in the "heads" of the specifiedoffices, and in no other person. The word "heads" refers to thechairpersons of the commissions or boards and not to their members,for several reasons.

The President does not appoint the Chairman of the PNRC. Neither does the headof any department, agency, commission or board appoint the PNRC Chairman.Thus, the PNRC Chairman is not an official or employee of the Executive branchsince his appointment does not fall under Section 16, Article VII of theConstitution. Certainly, the PNRC Chairman is not an official or employee of theJudiciary or Legislature. This leads us to the obvious conclusion that the PNRCChairman is not an official or employee of the Philippine Government. Not beinga government official or employee, the PNRC Chairman, as such, doesnot hold a government office or employment.

Under Section 17, Article VII of the Constitution,[17] the President exercisescontrol over all government offices in the Executive branch. If an office islegally not under the control of the President, then such office is not partof the Executive branch. In Rufino v. Endriga,[18] the Court explained thePresident's power of control over all government offices as follows:

Every government office, entity, or agency must fall under theExecutive, Legislative, or Judicial branches, or must belong to one ofthe independent constitutional bodies, or must be a quasijudicialbody or local government unit. Otherwise, such government office,



entity, or agency has no legal and constitutional basis for itsexistence.

The CCP does not fall under the Legislative or Judicial branches ofgovernment. The CCP is also not one of the independent constitutionalbodies. Neither is the CCP a quasijudicial body nor a localgovernment unit. Thus, the CCP must fall under the Executive branch.Under the Revised Administrative Code of 1987, any agency "notplaced by law or order creating them under any specific department"falls "under the Office of the President."

Since the President exercises control over "all the executivedepartments, bureaus, and offices," the President necessarilyexercises control over the CCP which is an office in the Executivebranch. In mandating that the President "shall have control of allexecutive . . . offices," Section 17, Article VII of the 1987 Constitutiondoes not exempt any executive office one performing executivefunctions outside of the independent constitutional bodies from thePresident's power of control. There is no dispute that the CCPperforms executive, and not legislative, judicial, or quasijudicialfunctions.

The President's power of control applies to the acts or decisions of allofficers in the Executive branch. This is true whether such officers areappointed by the President or by heads of departments, agencies,commissions, or boards. The power of control means the power to reviseor reverse the acts or decisions of a subordinate officer involving theexercise of discretion.

In short, the President sits at the apex of the Executive branch, andexercises "control of all the executive departments, bureaus, andoffices." There can be no instance under the Constitution where anofficer of the Executive branch is outside the control of the President.The Executive branch is unitary since there is only one Presidentvested with executive power exercising control over the entireExecutive branch. Any office in the Executive branch that is not underthe control of the President is a lost command whose existence iswithout any legal or constitutional basis. (Emphasis supplied)

An overwhelming fourfifths majority of the PNRC Board are private sectorindividuals elected to the PNRC Board by the private sector members of thePNRC. The PNRC Board exercises all corporate powers of the PNRC. The PNRC iscontrolled by private sector individuals. Decisions or actions of the PNRC Board



are not reviewable by the President. The President cannot reverse or modifythe decisions or actions of the PNRC Board. Neither can the Presidentreverse or modify the decisions or actions of the PNRC Chairman. It is thePNRC Board that can review, reverse or modify the decisions or actions of thePNRC Chairman. This proves again that the office of the PNRC Chairman is aprivate office, not a government office.

Although the State is often represented in the governing bodies of a NationalSociety, this can be justified by the need for proper coordination with the publicauthorities, and the government representatives may take part in decisionmaking within a National Society. However, the freelyelected representatives ofa National Society's active members must remain in a large majority in a NationalSociety's governing bodies.[19]

The PNRC is not governmentowned but privately owned. The vast majority ofthe thousands of PNRC members are private individuals, includingstudents. Under the PNRC Charter, those who contribute to the annual fundcampaign of the PNRC are entitled to membership in the PNRC for one year.Thus, any one between 6 and 65 years of age can be a PNRC member for oneyear upon contributing P35, P100, P300, P500 or P1,000 for the year.[20] Evenforeigners, whether residents or not, can be members of the PNRC. Section 5 ofthe PNRC Charter, as amended by Presidential Decree No. 1264,[21] reads:

SEC. 5. Membership in the Philippine National Red Cross shall be opento the entire population in the Philippines regardless of citizenship.Any contribution to the Philippine National Red Cross Annual FundCampaign shall entitle the contributor to membership for one year andsaid contribution shall be deductible in full for taxation purposes.

Thus, the PNRC is a privately owned, privately funded, and privately runcharitable organization. The PNRC is not a governmentowned or controlledcorporation.

Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC,[22]

which ruled that the PNRC is a governmentowned or controlled corporation. Inruling that the PNRC is a governmentowned or controlled corporation, the simpletest used was whether the corporation was created by its own special charter forthe exercise of a public function or by incorporation under the generalcorporation law. Since the PNRC was created under a special charter, the Courtthen ruled that it is a government corporation. However, the Camporedondoruling failed to consider the definition of a governmentowned or controlledcorporation as provided under Section 2(13) of the Introductory Provisions of theAdministrative Code of 1987:



SEC. 2. General Terms Defined. x x x

(13) Governmentowned or controlled corporation refers toany agency organized as a stock or nonstock corporation,vested with functions relating to public needs whethergovernmental or proprietary in nature, and owned by theGovernment directly or through its instrumentalities eitherwholly, or where applicable as in the case of stockcorporations, to the extent of at least fiftyone (51) percent ofits capital stock: Provided, That governmentowned or controlledcorporations may be further categorized by the Department of theBudget, the Civil Service Commission, and the Commission on Auditfor purposes of the exercise and discharge of their respective powers,functions and responsibilities with respect to such corporations.(Boldfacing and underscoring supplied)

A governmentowned or controlled corporation must be owned by thegovernment, and in the case of a stock corporation, at least a majority of itscapital stock must be owned by the government. In the case of a nonstockcorporation, by analogy at least a majority of the members must be governmentofficials holding such membership by appointment or designation by thegovernment. Under this criterion, and as discussed earlier, the government doesnot own or control PNRC.

The PNRC Charter is Violative of the Constitutional Proscription againstthe Creation of Private Corporations by Special Law

The 1935 Constitution, as amended, was in force when the PNRC was created byspecial charter on 22 March 1947. Section 7, Article XIV of the 1935 Constitution,as amended, reads:

SEC. 7. The Congress shall not, except by general law, provide for theformation, organization, or regulation of private corporations, unlesssuch corporations are owned or controlled by the Government or anysubdivision or instrumentality thereof.

The subsequent 1973 and 1987 Constitutions contain similar provisionsprohibiting Congress from creating private corporations except by general law.Section 1 of the PNRC Charter, as amended, creates the PNRC as a "bodycorporate and politic," thus:



SECTION 1. There is hereby created in the Republic of thePhilippines a body corporate and politic to be the voluntaryorganization officially designated to assist the Republic of thePhilippines in discharging the obligations set forth in theGeneva Conventions and to perform such other duties as areinherent upon a National Red Cross Society. The nationalheadquarters of this Corporation shall be located in MetropolitanManila. (Emphasis supplied)

In Feliciano v. Commission on Audit,[23] the Court explained the constitutionalprovision prohibiting Congress from creating private corporations in this wise:

We begin by explaining the general framework under the fundamentallaw. The Constitution recognizes two classes of corporations. The firstrefers to private corporations created under a general law. The secondrefers to governmentowned or controlled corporations created byspecial charters. Section 16, Article XII of the Constitution provides:

Sec. 16. The Congress shall not, except by general law, provide forthe formation, organization, or regulation of private corporations.Governmentowned or controlled corporations may be created orestablished by special charters in the interest of the common goodand subject to the test of economic viability.

The Constitution emphatically prohibits the creation of privatecorporations except by general law applicable to all citizens. Thepurpose of this constitutional provision is to ban private corporationscreated by special charters, which historically gave certain individuals,families or groups special privileges denied to other citizens.

In short, Congress cannot enact a law creating a privatecorporation with a special charter. Such legislation would beunconstitutional. Private corporations may exist only under ageneral law. If the corporation is private, it must necessarilyexist under a general law. Stated differently, only corporationscreated under a general law can qualify as private corporations. Underexisting laws, the general law is the Corporation Code, except that theCooperative Code governs the incorporation of cooperatives.

The Constitution authorizes Congress to create governmentowned orcontrolled corporations through special charters. Since privatecorporations cannot have special charters, it follows that Congress cancreate corporations with special charters only if such corporations aregovernmentowned or controlled.[24] (Emphasis supplied)



In Feliciano, the Court held that the Local Water Districts are governmentownedor controlled corporations since they exist by virtue of Presidential Decree No.198, which constitutes their special charter. The seed capital assets of the LocalWater Districts, such as waterworks and sewerage facilities, were public propertywhich were managed, operated by or under the control of the city, municipalityor province before the assets were transferred to the Local Water Districts. TheLocal Water Districts also receive subsidies and loans from the Local WaterUtilities Administration (LWUA). In fact, under the 2009 General AppropriationsAct,[25] the LWUA has a budget amounting to P400,000,000 for its subsidyrequirements.[26] There is no private capital invested in the Local WaterDistricts. The capital assets and operating funds of the Local Water Districts allcome from the government, either through transfer of assets, loans, subsidies orthe income from such assets or funds.

The government also controls the Local Water Districts because the municipal orcity mayor, or the provincial governor, appoints all the board directors of theLocal Water Districts. Furthermore, the board directors and other personnel ofthe Local Water Districts are government employees subject to civil service lawsand antigraft laws. Clearly, the Local Water Districts are considered governmentowned or controlled corporations not only because of their creation by specialcharter but also because the government in fact owns and controls the LocalWater Districts.

Just like the Local Water Districts, the PNRC was created through a specialcharter. However, unlike the Local Water Districts, the elements ofgovernment ownership and control are clearly lacking in the PNRC. Thus,although the PNRC is created by a special charter, it cannot be considered agovernmentowned or controlled corporation in the absence of the essentialelements of ownership and control by the government. In creating the PNRC as acorporate entity, Congress was in fact creating a private corporation. However,the constitutional prohibition against the creation of private corporations byspecial charters provides no exception even for nonprofit or charitablecorporations. Consequently, the PNRC Charter, insofar as it creates the PNRC asa private corporation and grants it corporate powers,[27] is void for beingunconstitutional. Thus, Sections 1,[28] 2,[29] 3,[30] 4(a),[31] 5,[32] 6,[33] 7,[34] 8,[35] 9,[36] 10,[37] 11,[38] 12,[39] and 13[40] of the PNRC Charter, as amended,are void.

The other provisions[41] of the PNRC Charter remain valid as they can beconsidered as a recognition by the State that the unincorporated PNRC is thelocal National Society of the International Red Cross and Red CrescentMovement, and thus entitled to the benefits, exemptions and privileges set forthin the PNRC Charter. The other provisions of the PNRC Charter implement the



Philippine Government's treaty obligations under Article 4(5) of the Statutes ofthe International Red Cross and Red Crescent Movement, which provides that tobe recognized as a National Society, the Society must be "duly recognized by thelegal government of its country on the basis of the Geneva Conventions and ofthe national legislation as a voluntary aid society, auxiliary to the publicauthorities in the humanitarian field."

In sum, we hold that the office of the PNRC Chairman is not a government officeor an office in a governmentowned or controlled corporation for purposes of theprohibition in Section 13, Article VI of the 1987 Constitution. However, since thePNRC Charter is void insofar as it creates the PNRC as a private corporation, thePNRC should incorporate under the Corporation Code and register with theSecurities and Exchange Commission if it wants to be a private corporation.

WHEREFORE, we declare that the office of the Chairman of the PhilippineNational Red Cross is not a government office or an office in a governmentowned or controlled corporation for purposes of the prohibition in Section 13,Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5,6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross,or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643,are VOID because they create the PNRC as a private corporation or grant itcorporate powers.

SO ORDERED.

Puno, C.J., Quisumbing, Carpio, Carpio Morales, ChicoNazario, Velasco, Jr., andLeonardoDe Castro, JJ., concur.YnaresSantiago, Brion, Peralta, and Bersamin, JJ., joins dissenting opinion of J.Nachura.Corona, J., no part.Nachura, J., please see dissent.

[1] Respondent was elected as a Senator during the May 2004 elections.

[2] 370 Phil. 901 (1999).

[3] G.R. No. 104732, 22 June 1993, 223 SCRA 568.

[4] Rollo, p. 181.

[5] Id. at 35.

[6] The Secretary of Justice Cuevas v. Atty. Bacal, 400 Phil. 1115 (2000); Garcia



v. Perez, 188 Phil. 43 (1980).

[7] An Act to Incorporate the Philippine National Red Cross, as amended byPresidential Decree No. 1264.

[8] PNRC Website, HYPERLINK"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspx" HYPERLINK"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspx"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspxHYPERLINK"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspx" (visited 25March 2009).

[9] PNRC Website,HYPERLINK"http://www.redcross.org.ph/Site/PNRC/StrategicDirections.aspx" HYPERLINK"http://www.redcross.org.ph/Site/PNRC/About.aspx"http://www.redcross.org.ph/Site/PNRC/About.aspx (visited 25 March 2009).

[10] Convention for the Amelioration of the Condition of the Wounded and Sick inArmies in the Field.

[11] Article 4 of the Statutes of the International Red Cross and Red CrescentMovement reads:

Article 4Conditions for Recognition of National Societies

In order to be recognized in terms of Article 5, paragraph 2 b) as aNational Society, the Society shall meet the following conditions:

1. Be constituted on the territory of an independent State where theGeneva Convention for the Amelioration of the Condition of theWounded and Sick in Armed Forces in the Field is in force.

2. Be the only National Red Cross or Red Crescent Society of the saidState and be directed by a central body which shall alone becompetent to represent it in its dealings with other components of theMovement.

3. Be duly recognized by the legal government of its country on thebasis of the Geneva Conventions and of the national legislation as avoluntary aid society, auxiliary to the public authorities in thehumanitarian field.



4. Have an autonomous status which allows it to operation inconformity with the Fundamental Principles of the Movement.

5. Use a name and distinctive emblem in conformity with the GenevaConventions and their Additional Protocols.

6. Be so organized as to be able to fulfill the tasks defined in its ownstatutes, including the preparation in peace time for its statutory tasksin case of armed conflicts.

7. Extend its activities to the entire territory of the State.

8. Recruit its voluntary members and its staff without consideration ofrace, sex, class, religion or political opinions.

9. Adhere to the present Statutes, share in the fellowship which unitesthe components of the Movement and cooperate with them.

10. Respect the Fundamental Principles of the Movement andbe guided in its work by the principles of internationalhumanitarian law. (Emphasis supplied)

[12] The Fundamental Principles of the Red Cross and Red Crescent, ICRCPublication, p. 17.

[13] Although under Section 4(c) of the PNRC Charter, as amended, the PNRC isallotted one lottery draw yearly by the Philippine Charity Sweepstakes for thesupport of its disaster relief operations, in addition to its existing lottery draws forthe Blood Program, such allotments are donations given to most charitableorganizations.

[14] Section 16, Article VII of the Constitution provides:

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

The President shall have the power to make appointments during the recess of



the Congress, whether voluntary or compulsory, but such appointments shall beeffective only until after disapproval by the Commission on Appointments or untilthe next adjournment of the Congress.

[15] Endriga v. Rufino, G.R. Nos. 139554 & 139565, 21 July 2006, 496 SCRA 13.

[16] Id. at 5057.

[17] Section 17, Article VII of the Constitution provides:

The President shall have control of all the executive departments, bureaus, andoffices. He shall ensure that the laws be faithfully executed.

[18] Supra note 15 at 6365.

[19] See note 12 at 20.

[20] PNRC Website, http://202.57.124.158/Site/PNRC/membershipInfo.aspx#5(visited 15 June 2009).

[21] Issued on 15 December 1977.

[22] Supra note 2.

[23] 464 Phil. 439 (2004).

[24]Id. at 454455.

[25] Republic Act No. 9524.

[26] DBM Website,HYPERLINK "http://www.dbm.gov.ph/GAA09/bsgc/C1.pdf"HYPERLINK "http://www.dbm.gov.ph/GAA09/bsgc/C1.pdf"http://www.dbm.gov.ph/GAA09/bsgc/C1.pdf (visited 25 June 2009).

[27] Section 36 of the Corporation Code enumerates the general powers of acorporation:

SEC. 36. Corporate powers and capacity. Every corporation incorporated underthis Code has the power and capacity:

1. To sue and be sued in its corporate name;2. Of succession by its corporate name for the period of time stated in thearticles of incorporation and the certificate of incorporation;



3. To adopt and use a corporate seal;4. To amend its articles of incorporation in accordance with the provisions ofthis Code;

5. To adopt bylaws, not contrary to law, morals or public policy, and toamend or repeal the same in accordance with this Code;

6. In case of stock corporations, to issue or sell stocks to subscribers and tosell treasury stocks in accordance with the provisions of this Code; and toadmit members to the corporation if it be a nonstock corporation;

7. To purchase, receive, take or grant, hold, convey, sell, lease, pledge,mortgage and otherwise deal with such real and personal property,including securities and bonds of other corporations, as the transaction ofthe lawful business of the corporation may reasonably and necessarilyrequire, subject to the limitations prescribed by law and the Constitution;

8. To adopt any plan of merger or consolidation as provided in this Code;9. To make reasonable donations, including those for the public welfare or forhospital, charitable, cultural, scientific, civic, or similar purposes: Provided,That no corporation, domestic or foreign, shall give donations in aid of anypolitical party or candidate or for purposes of partisan political activity;

10. To establish pension, retirement and other plans for the benefit of itsdirectors, trustees, officers and employees; and

11. To exercise such other powers as may be essential or necessary to carryout its purpose or purposes as stated in its articles of incorporation.

[28] SECTION 1. There is hereby created in the Republic of the Philippines a bodycorporate and politic to be the voluntary organization officially designated toassist the Republic of the Philippines in discharging the obligations set forth in theGeneva Conventions and to perform such other duties as are inherent upon anational Red Cross Society. The national headquarters of this Corporation shall belocated in Metro Manila.

[29] SEC. 2. The name of this corporation shall be "The Philippine National RedCross" and by that name shall have perpetual succession with the power to sueand be sued; to own and hold such real and personal estate as shall be deemedadvisable and to accept bequests, donations and contributions of property of allclasses for the purpose of this Corporation hereinafter set forth; to adopt a sealand to alter and destroy the same at pleasure; and to have the right to adopt andto use, in carrying out its purposes hereinafter designated, as an emblem andbadge, a red Greek cross on a white ground, the same as has been described inthe Geneva Conventions, and adopted by the several nations ratifying oradhering thereto; to ordain and establish bylaws and regulations notinconsistent with the laws of the Republic of the Philippines, and generally to doall such acts and things as may be necessary to carry into effect the provisions ofthis Act and promote the purposes of said organization; and the corporationhereby created is designated as the organization which is authorized to act in



matters of relief under said Convention. In accordance with the GenevaConventions, the issuance of the distinctive Red Cross emblem to medical unitsand establishments, personnel and materials neutralized in time of war shall beleft to the military authorities. The red Greek cross on a white ground, as hasbeen described by the Geneva Conventions is not, and shall not be construed asa religious symbol, and shall have equal efficacy and applicability to persons of allfaiths, creeds and beliefs. The operational jurisdiction of the Philippine NationalRed Cross shall be over the entire territory of the Philippines.

[30] SEC. 3. That the purposes of this Corporation shall be as follows:

a. To provide volunteer aid to the sick and wounded of the armed forces intime of war, in accordance with the spirit of and under the conditionsprescribed by the Geneva Conventions to which the Republic of thePhilippines proclaimed its adherence;

b. For the purposes mentioned in the preceding subsection, to perform allduties devolving upon the Corporation as a result of the adherence of theRepublic of the Philippines to the said Convention;

c. To act in matters of voluntary relief and in accordance with theauthorities of the armed forces as a medium of communication between thepeople of the Republic of the Philippines and their Armed Forces, in time ofpeace and in time of war, and to act in such matters between similarnational societies of other governments and the Government and peopleand the Armed Forces of the Republic of the Philippines;

d. To establish and maintain a system of national and international relief intime of peace and in time of war and apply the same in meeting theemergency needs caused by typhoons, flood, fires, earthquakes, and othernatural disasters and to devise and carry on measures for minimizing thesuffering caused by such disasters;

e. To devise and promote such other services in time of peace and in timeof war as may be found desirable in improving the health, safety andwelfare of the Filipino people;

f. To devise such means as to make every citizen and/or resident of thePhilippines a member of the Red Cross.

[31] SEC. 4. In furtherance of the purposes mentioned in the preceding subparagraphs, the Philippine National Red Cross shall:

a. Be authorized to secure loans from any financial institution which shall notexceed its budget of the previous year.



[32] SEC. 5. Membership in the Philippine National Red Cross shall be open to theentire population in the Philippines regardless of citizenship. Any contribution tothe Philippine National Red Cross Annual Fund Campaign shall entitle thecontributor to membership for one year and said contribution shall be deductiblein full for taxation purposes.

[33] SEC. 6. The governing powers and authority shall be vested in the Board ofGovernors composed of thirty members, six of whom shall be appointed by thePresident of the Philippines, eighteen shall be elected by chapter delegates inbiennial conventions and the remaining six shall be selected by the twentyfourmembers of the Board already chosen. At least one but not more than three ofthe Presidential appointees shall be chosen from the Armed Forces of thePhilippines.

a. The term of office of all members of the Board shall be four years,including those appointed by the President of the Philippines, renewable atthe pleasure of the appointing power or elective bodies.

b. Vacancies in the Board of Governors caused by death or resignation shallbe filled by election by the Board of Governors at its next meeting, exceptthat vacancies among the Presidential appointees shall be filled by thePresident.

[34] SEC. 7. The President of the Philippines shall be the Honorary President ofthe Philippine National Red Cross. The officers shall consist of a Chairman, a ViceChairman, a Secretary, a Treasurer, a Counselor, an Assistant Secretary and anAssistant Treasurer, all of whom shall be elected by the Board of Governors fromamong its membership for a term of two years and may be reelected. Theelection of officers shall take place within sixty days after all the members of theBoard of Governors have been chosen and have qualified.

[35] SEC. 8. The Biennial meeting of chapter delegates shall be held on such dateand such place as may be specified by the Board of Governors to elect membersof the Board of Governors and advice the Board of Governors on the activities ofthe Philippine National Red Cross; Provided, however, that during periods ofgreat emergency, the Board of Governors in its discretion may determine that thebest interest of the corporation shall be served by postponing such biennialmeeting.

[36] SEC. 9. The power to ordain, adopt and amend bylaws and regulations shallbe vested in the Board of Governors.

[37] SEC. 10. The members of the Board of Governors, as well as the officers of



the corporation, shall serve without compensation. The compensation of the paidstaff of the corporation shall be determined by the Board of Governors upon therecommendation of the Secretary General.

[38] SEC. 11. As a national voluntary organization, the Philippine National RedCross shall be financed primarily by contributions obtained through solicitationcampaigns throughout the year which shall be organized by the Board ofGovernors and conducted by the Chapters in their respective jurisdictions. Thesefund raising campaigns shall be conducted independently of other fund drives byother organizations.

[39] SEC. 12. The Board of Governors shall promulgate rules and regulations forthe organization of local units of the Philippine National Red Cross to be known asChapters. Said rules and regulations shall fix the relationship of the Chapters tothe Corporation, define their territorial jurisdictions, and determine the number ofdelegates for each chapter based on population, fund campaign potentials andservice needs.

[40] SEC. 13. The Corporation shall, at the end of every calendar year submit tothe President of the Philippines an annual report containing the activities of theCorporation showing its financial condition, the receipts and disbursements.

[41] The valid provisions are Sections 4(b) and (c), 14, 15, 16, and 17:

SEC. 4. In furtherance of the purposes mentioned in the preceding subparagraphs, the Philippine National Red Cross shall:

x x x

b. Be exempt from payment of all duties, taxes, fees, and other charges of allkinds on all importations and purchases for its exclusive use, on donations for itsdisaster relief work and other Red Cross services, and in its benefits and fundraising drives all provisions of law to the contrary notwithstanding.

c. Be allotted by the Philippine Charity Sweepstakes Office one lottery drawyearly for the support of its disaster relief operations in addition to its existinglottery draws for the Blood Program.

SEC. 14. It shall be unlawful for any person to solicit, collect or receive money,materials, or property of any kind by falsely representing or pretending himself tobe a member, agent or representative of the Philippine National Red Cross.

SEC. 15. The use of the name Red Cross is reserved exclusively to the PhilippineNational Red Cross and the use of the emblem of the red Greek cross on a whiteground is reserved exclusively to the Philippine National Red Cross, medical



services of the Armed Forces of the Philippines and such other medical facilitiesor other institutions as may be authorized by the Philippine National Red Cross asprovided under Article 44 of the Geneva Conventions. It shall be unlawful for anyother person or entity to use the words Red Cross or Geneva Cross or to use theemblem of the red Greek cross on a white ground or any designation, sign, orinsignia constituting an imitation thereof for any purpose whatsoever.

SEC. 16. As used in this Decree, the term person shall include any legal person,group, or legal entity whatsoever nature, and any person violating any section ofthis Article shall, upon conviction therefore be liable to a fin[e] of not less thanone thousand pesos or imprisonment for a term not exceeding one year, or both,at the discretion of the court, for each and every offense. In case the violation iscommitted by a corporation or association, the penalty shall devolve upon thepresident, director or any other officer responsible for such violation.

SEC. 17. All acts or parts of acts which are inconsistent with the provisions of thisDecree are hereby repealed.

DISSENTING OPINION

NACHURA, J.:

I am constrained to register my dissent because the ponencia does not onlyendorse an unmistakably flagrant transgression of the Constitution but alsounwittingly espouses the destruction of the Philippine National Red Cross (PNRC)as an institution. With all due respect, I disagree with the principal argumentsadvanced in the ponencia to justify Senator Richard J. Gordon's unconstitutionalholding of the chairmanship of the PNRC Board of Governors while concurrentlysitting as a member of the Senate of the Philippines.

Procedurally, I maintain that the petition is one for prohibition and thatpetitioners have standing to file the same. On the merits, I remain earnestlyconvinced that PNRC is a government owned or controlled corporation (GOCC), ifnot a government instrumentality; that its charter does not violate theconstitutional proscription against the creation of private corporations by speciallaw; and that Senator Gordon's continuous occupancy of two incompatiblepositions is a clear violation of the Constitution.

Allow me to elucidate.

I.



The petition should be treatedas one for prohibition; andpetitioners have locus standi

I submit that the present petition should be treated as one for prohibition ratherthan for quo warranto. In the main, the petitioners seek from this Court thedeclaration that Senator Gordon has forfeited his seat in the Senate, and theconsequent proscription from further acting or representing himself as a Senatorand from receiving the salaries, emoluments, compensations, privileges andbenefits thereof.[1] Hence, the remedy sought is preventive and restrictivean injunction against an alleged continuing violation of the fundamentallaw. Furthermore, the petitioners raise a constitutional issue, without claimingany entitlement to either the Senate seat or the chairmanship of PNRC.

Considering that the issue involved is of fundamental constitutional significanceand of paramount importance, i.e., whether the Senator continues to commit aninfringement of the Constitution by holding two positions claimed to beincompatible, the Court has full authority, nay the bounden duty, to treatthe vaguely worded petition as one for prohibition and assumejurisdiction.[2]

Petitioners, as citizens of the Republic and by being taxpayers, have locus standito institute the instant case. Garcillano v. the House of RepresentativesCommittees on Public Information, Public Order and Safety, National Defense andSecurity, Information and Communications Technology, and Suffrage andElectoral Reforms[3] echoes the current policy of the Court, as laid down inChavez v. Gonzales,[4] to disallow procedural barriers to serve as impediments toaddressing and resolving serious legal questions that greatly impact on publicinterest. This is in keeping with the Court's responsibility under the Constitutionto determine whether or not other branches of government have kept themselveswithin the limits of the Constitution and the laws, and that they have not abusedthe discretion given them.[5]

Finally, as aforementioned, petitioners advance a constitutional issue whichdeserves the attention of this Court in view of its seriousness, novelty and weightas precedent.[6] Considering that Senator Gordon is charged with continuouslyviolating the Constitution by holding incompatible offices, the institution of theinstant action by the petitioners is proper.

II.



A brief history of the PNRC

A historical account of the PNRC's creation is imperative in order to comprehendthe nature of the institution and to put things in their proper perspective.

Even before its incorporation in 1947, the Red Cross, as an organization, wasalready in existence in the Philippines. Apolinario Mabini played an important rolein the approval by the Malolos Republic, on February 17, 1899, of theConstitution of the National Association of the Red Cross. Appointed to serve asits president was Hilario del Rosario de Aguinaldo. On August 29, 1900,International Delegate of Diplomacy Felipe Agoncillo met with InternationalCommittee of the Red Cross (ICRC) President Gustave Moynier to lobby for therecognition of the Filipino Red Cross Society and the application of the 1864Geneva Convention to the country during the FilipinoAmerican war.[7] TheGeneva Convention of August 22, 1864 dealt mainly on the relief to woundedsoldiers without any distinction as to nationality, on the neutrality andinviolability of medical personnel and medical establishments and units; and onthe adoption of the distinctive sign of the red cross on a white ground byhospitals, ambulances and evacuation parties and personnel.[8]

On August 30, 1905, a Philippine branch of the American National Red Cross(ANRC) was organized. This was later officially recognized as an ANRC chapter onDecember 4, 1917. In 1934, President Manuel L. Quezon initiated theestablishment of an independent Philippine Red Cross, but this did not materializebecause the Commonwealth Government at that time could not ratify the GenevaConvention. During the Japanese occupation, a Japanesecontrolled PhilippineRed Cross was created to take care of internment camps in the country. After theliberation of Manila in 1945, local Red Cross officials and the ANRC undertook toreconstitute the organization.[9] The Republic of the Philippines became anindependent nation on July 4, 1946, and proclaimed its adherence to the GenevaConvention on February 14, 1947. On March 22 of that year, the PNRC wasofficially created when President Manuel A. Roxas signed Republic Act (R.A.) No.95.[10]

PNRC is a GOCC

Section 16, Article XII, of the Philippine Constitution, provides the inflexibleimperative for the formation or organization of private corporations, as follows:

Sec. 16. The Congress shall not, except by general law, provide forthe formation, organization or regulation of private corporations.Governmentowned or controlled corporations may be created orestablished by special charters in the interest of the common goodand subject to the test of economic viability.



Delineating the nature of a GOCC, compared to a private corporation, JusticeCarpio explains this inviolable rule in Feliciano v. Commission on Audit[11] in thiswise:

We begin by explaining the general framework under the fundamentallaw. The Constitution recognizes two classes of corporations. The firstrefers to private corporations created under a general law. The secondrefers to governmentowned or controlled corporations created byspecial charters. Section 16, Article XII of the Constitution provides:

Section 16. The Congress shall not, except by general law, provide forthe formation, organization, or regulation of private corporations.Governmentowned or controlled corporations may be created orestablished by special charters in the interest of the common goodand subject to the test of economic viability.

The Constitution emphatically prohibits the creation of privatecorporations except by a general law applicable to citizens. Thepurpose of this constitutional provision is to ban private corporationscreated by special charters, which historically gave certain individuals,families or groups special privileges denied to other citizens.

In short, Congress cannot enact a law creating a privatecorporation with a special charter. Such legislation would beunconstitutional. Private corporations may exist only under ageneral law. If the corporation is private, it must necessarily existunder a general law. Stated differently, only corporations createdunder a general law can qualify as private corporations. Underexisting laws, that general law is the Corporation Code, except thatthe Cooperative Code governs the incorporation of cooperatives.

The Constitution authorizes Congress to create governmentowned orcontrolled corporations through special charters. Since privatecorporations cannot have special charters, it follows thatCongress can create corporations with special charters only ifsuch corporations are governmentowned or controlled.[12]

Reason dictates that since no private corporation can have a special charter, itfollows that Congress can create corporations with special charters only if suchcorporations are governmentowned or controlled.[13] To hold otherwise wouldrun directly against our fundamental law or, worse, authorize implied amendmentto it, which this Court cannot allow.



The PNRC was incorporated under R.A. No 95, a special law. Following the logic inFeliciano, it cannot be anything but a GOCC.

R.A. No. 95 has undergone amendment through the years.[14] Did theamendment of the PNRC Charter have the effect of transforming it into a privatecorporation?

In Camporedondo v. National Labor Relations Commission,[15] we answered thisin the negative. The Court's ruling in that case, reiterated in Baluyot v. Holganza,[16] is direct, definite and clear, viz:

Resolving the issue set out in the opening paragraph of this opinion,we rule that the Philippine National Red Cross (PNRC) is a governmentowned and controlled corporation, with an original charter underRepublic Act No. 95, as amended. The test to determine whether acorporation is government owned or controlled, or private in nature issimple. Is it created by its own charter for the exercise of a publicfunction, or by incorporation under the general corporation law? Thosewith special charters are government corporations subject to itsprovisions, and its employees are under the jurisdiction of the CivilService Commission, and are compulsory members of the GovernmentService Insurance System. The PNRC was not "impliedly convertedinto a private corporation" simply because its charter was amended tovest in it the authority to secure loans, be exempted from payment ofall duties, taxes, fees and other charges of all kinds on all importationsand purchases for its exclusive use, on donations for its disaster reliefwork and other services and in its benefits and fund raising drives andbe allotted one lottery draw a year by the Philippine CharitySweepstakes Office for the support of its disaster relief operation inaddition to its existing lottery draws for blood programs.[17]

In an effort to avoid the inescapable command of Camporendondo, the ponenciaasserts that the decision has failed to consider the definition of a GOCC underSection 2 (13) of the Introductory Provisions of Executive Order No. 292(Administrative Code of 1987), which provides:

SEC. 2. General Terms Defined. x x x

(13) Governmentowned or controlled corporation refers to anyagency organized as a stock or nonstock corporation, vested withfunctions relating to public needs whether governmental or proprietaryin nature, and owned by the Government directly or through its



instrumentalities either wholly, or, where applicable as in the case ofstock corporations, to the extent of at least fiftyone (51) per cent ofits capital stock: Provided, That governmentowned or controlledcorporations may be further categorized by the Department ofthe Budget, the Civil Service Commission, and the Commission onAudit for purposes of the exercise and discharge of their respectivepowers, functions and responsibilities with respect to suchcorporations.[18]

The ponencia then argues that, based on the criterion in the cited provision,PNRC is not owned or controlled by the government and, thus, is not a GOCC.

I respectfully differ. The quoted Administrative Code provision does notpronounce a definition of a GOCC that strays from Section 16, Article XII of theConstitution. As explained in Philippine National Construction Corporation v.Pabion, et al.,[19] it merely declares that a GOCC may either be a stock or nonstock corporation, or that it "may be further categorized,"[20] suggesting that thedefinition provided in the Administrative Code is broad enough to admit of otherdistinctions as to the kinds of GOCCs.[21]

Rather, crucial in this definition is the reference to the corporation being "vestedwith functions relating to public needs whether governmental orproprietary." When we relate this to the PNRC Charter, as amended, we notethat Section 1 of the charter starts with the phrase, "(T)here is herebycreated in the Republic of the Philippines a body corporate and politic tobe the voluntary organization officially designated to assist the Republicof the Philippines in discharging the obligations set forth in the GenevaConventions x x x".[22] It is beyond cavil that the obligations of theRepublic of the Philippines set forth in the Geneva Conventions arepublic or governmental in character. If the PNRC is "officially designated toassist the Republic," then the PNRC is, perforce, engaged in the performance ofthe government's public functions.

PNRC is, at the very least, a government instrumentality

Further, applying the definition of terms used in the Administrative Code of 1987,as Justice Carpio urges this Court to do, will lead to the inescapable conclusionthat PNRC is an instrumentality of the government. Section 2(10) of the saidcode defines a government instrumentality as:

(10) Instrumentality refers to any agency of the National Governmentnot integrated within the department framework, vested with



special functions or jurisdiction by law, endowed with some ifnot all corporate powers, administering special funds, andenjoying operational autonomy, usually through a charter. Thisterm includes regulatory agencies, chartered institutions andgovernmentowned or controlled corporations.[23]

The PNRC is vested with the special function of assisting the Republic of thePhilippines in discharging its obligations under the Geneva Conventions. It isendowed with corporate powers. It administers special fundsthe contributions ofits members, the aid given by the government, the support extended to it by thePhilippine Charity Sweepstakes Office (PCSO) in terms of allotment of lotterydraws.[24] It enjoys operational autonomy, as emphasized by Justice Carpiohimself. And all these attributes exist by virtue of its charter.

Significantly, in the United States, the ANRC, the precursor of the PNRC andlikewise a member of the International Federation of Red Cross and Red CrescentSocieties,[25] is considered as a federal instrumentality. Addressing the issueof whether the ANRC was an entity exempt from paying unemploymentcompensation tax, the US Supreme Court, in Department of Employment v.United States,[26] characterized the Red Cross as an instrumentality of thefederal government not covered by the enforcement of the tax statute andentitled to a refund of taxes paid

On the merits, we hold that the Red Cross is an instrumentality of theUnited States for purposes of immunity from state taxation levied onits operations, and that this immunity has not been waived bycongressional enactment. Although there is no simple test forascertaining whether an institution is so closely related togovernmental activity as to become a taximmune instrumentality, theRed Cross is clearly such an instrumentality. See generally, Sturges,The Legal Status of the Red Cross, 56 Mich.L.Rev. 1 (1957). Congresschartered the present Red Cross in 1905, subjecting it togovernmental supervision and to a regular financial audit by theDefense, then War, Department. 33 Stat. 599, as amended, 36 U.S.C.s 1 et seq. Its principal officer is appointed by the President, who alsoappoints seven (all government officers) of the remaining 49Governors. 33 Stat. 601, as amended, 36 U.S.C. s 5. By statute andExecutive Order there devolved upon the Red Cross the right and theobligation to meet this Nation's commitments under various GenevaConventions, to perform a wide variety of functions indispensable tothe workings of our Armed Forces around the globe, and to assist theFederal Government in providing disaster assistance to the States intime of need. Although its operations are financed primarily from



voluntary private contributions, the Red Cross does receive substantialmaterial assistance from the Federal Government. And time and timeagain, both the President and the Congress have recognized and actedin reliance upon the Red Cross' status virtually as an arm of theGovernment. In those respects in which the Red Cross differs from theusual government agencye.g., in that its employees are notemployees of the United States, and that government officials do notdirect its everyday affairsthe Red Cross is like other institutionse.g.,national bankswhose status as taximmune instrumentalities of theUnited States is beyond dispute.[27]

The same conclusion was reached in R.A. Barton v. American Red Cross.[28] Inthat case, a transfusion recipient and her family brought action against AmericanRed Cross and its state medical director under Alabama Medical Liability Act aswell as Alabama tort law for failing to properly test blood sample and failing totimely notify recipient that donor had tested positive for humanimmunodeficiency virus (HIV). The US District Court concluded that the RedCross was a federal instrumentality and was so intertwined with and wasessential to the operation of the federal government, both internationally anddomestically;[29] thus, its personnel were exempt from tort liability if the conductcomplained of were within the scope of official duties and were discretionary innature.[30] The US Court of Appeals later affirmed the decision, and the USSupreme Court denied certiorari and rehearing on the case.[31]

Interestingly, while the United States considers the ANRC as its arm and the UScourts uphold its status as a federal instrumentality, ANRC remains anindependent, volunteerled organization that works closely with the ICRC onmatters of international conflict and social, political, and military unrest. There is,therefore, no sufficient basis for Justice Carpio to assume that if this Court willconsider PNRC as a GOCC, then "it cannot merit the trust of all and cannoteffectively carry out its mission as a National Red Cross Society."

Let it be stressed that, in much the same way as the ANRC, the PNRC has beenchartered and incorporated by the Philippine Government to aid it in thefulfillment of its obligations under the Geneva Convention. The President of theRepublic appoints six of the 36 PNRC governors. Though it depends primarily onvoluntary contributions for its funding, PNRC receives financial assistance notonly from the National Government and the PCSO but also through the localgovernment units. PNRC further submits to the President an annual reportcontaining its activities and showing its financial condition, as well as the receiptsand disbursements. PNRC has further been recognized by the PhilippineGovernment to be an essential component in its international and domesticoperation. There is no doubt therefore that PNRC is a GOCC or, if not, at least agovernment instrumentality.



The fact that the Philippine or the American National Red Cross is a governmentalinstrumentality does not affect its autonomy and operation in conformity with theFundamental Principles of the International Red Cross. The PNRC, like the ANRC,remains autonomous, neutral and independent from the Government, and viceversa, consonant with the principles laid down in the Geneva Convention.

A similar standing obtains in the case of the Commission on Human Rights (CHR).While it is a governmental office, it is independent. Separatists and insurgents donot consider the CHR, or the PNRC in this case, as the enemy, but rather as theentity to turn to in the event of injury to their constitutional rights, for the CHR,or to their physical being, for the PNRC.

The PNRC Charter does not violate the constitutional proscription against the creation of private corporations by special law

Considering that the PNRC is not a private corporation, but a GOCC or agovernment instrumentality, then its charter does not violate the constitutionalprovision that Congress cannot, except by a general law, provide for theformation, organization or regulation of private corporations, unless suchcorporations are owned or controlled by the Government.[32] We have alreadysettled this issue in Camporedondo and in Baluyot. Let it be emphasized that, inthose cases, this Court has found nothing wrong with the PNRC Charter. We havesimply applied the Constitution, and in Feliciano, this Court has explained themeaning of the constitutional provision.

I respectfully submit that we are not prepared to reverse the ruling of this Courtin the said cases. To rule otherwise will create an unsettling ripple effect innumerous decisions of this Court, including those dealing with the jurisdiction ofthe Civil Service Commission (CSC) and the authority of the Commission on Audit(COA), among others.

Furthermore, to subscribe to the proposition that Section 1 of the PNRC Charter,which deals with the creation and incorporation of the organization, is invalid forbeing violative of the aforesaid constitutional proscription, but the rest of theprovisions in the PNRC Charter remains valid, is to reach an absurd situation inwhich obligations are imposed on and a framework for its operation is laid downfor a legally nonexisting entity. If Section 1 of the PNRC Charter wereimpulsively invalidated, what will remain are the following provisions, which willhave no specific frame of referenceâ”€

SECTION 2. The name of this corporation shall be "The PhilippineNational Red Cross" and by that name shall have perpetual successionwith the power to sue and be sued; to own and hold such real and



personal estate as shall be deemed advisable and to accept bequests,donations and contributions of property of all classes for the purposeof this Corporation hereinafter set forth; to adopt a seal and to alterand destroy the same at pleasure; and to have the right to adopt andto use, in carrying out its purposes hereinafter designated, as anemblem and badge, a red Greek cross on a white ground, the same ashas been described in the Geneva Conventions, and adopted by theseveral nations ratifying or adhering thereto; to ordain and establishbylaws and regulations not inconsistent with the laws of the Republicof the Philippines, and generally to do all such acts and things as maybe necessary to carry into effect the provisions of this Act andpromote the purposes of said organization; and the corporationhereby created is designated as the organization which is authorizedto act in matters of relief under said Convention. In accordance withthe Geneva Conventions, the issuance of the distinctive Red Crossemblem to medical units and establishments, personnel and materialsneutralized in time of war shall be left to the military authorities. Thered Greek cross on a white ground, as has been described by theGeneva Conventions is not, and shall not be construed as a religioussymbol, and shall have equal efficacy and applicability to persons of allfaiths, creeds and beliefs. The operational jurisdiction of the PhilippineNational Red Cross shall be over the entire territory of the Philippines.

SECTION 3. That the purposes of this Corporation shall be as follows:

a. To provide volunteer aid to the sick and wounded of armedforces in time of war, in accordance with the spirit of and underthe conditions prescribed by the Geneva Conventions to whichthe Republic of the Philippines proclaimed its adherence;

b. For the purposes mentioned in the preceding subsection, toperform all duties devolving upon the Corporation as a result ofthe adherence of the Republic of the Philippines to the saidConvention;

c. To act in matters of voluntary relief and in accordance with theauthorities of the armed forces as a medium of communicationbetween people of the Republic of the Philippines and theirArmed Forces, in time of peace and in time of war, and to act insuch matters between similar national societies of othergovernments and the Governments and people and the ArmedForces of the Republic of the Philippines;

d. To establish and maintain a system of national and internationalrelief in time of peace and in time of war and apply the same in



meeting and emergency needs caused by typhoons, flood, fires,earthquakes, and other natural disasters and to devise and carryon measures for minimizing the suffering caused by suchdisasters;

e. To devise and promote such other services in time of peace andin time of war as may be found desirable in improving thehealth, safety and welfare of the Filipino people;

f. To devise such means as to make every citizen and/or residentof the Philippines a member of the Red Cross.

SECTION 4. In furtherance of the purposes mentioned in thepreceding subparagraphs, the Philippine National Red Cross shall:

a. Be authorized to secure loans from any financial institution whichshall not exceed its budget of the previous year.

b. Be exempt from payment of all duties, taxes, fees, and othercharges of all kinds on all importations and purchases for itsexclusive use, on donations for its disaster relief work and otherRed Cross services, and in its benefits and fund raising drives allprovisions of law to the contrary notwithstanding.

c. Be allotted by the Philippine Charity Sweepstakes Office onelottery draw yearly for the support of its disaster reliefoperations in addition to its existing lottery draws for the BloodProgram.

SECTION 5. Membership in the Philippine National Red Cross shall beopen to entire population in the Philippines regardless of citizenship.Any contribution to the Philippine National Red Cross Annual FundCampaign shall entitle the contributor to membership for one year andsaid contribution shall be deductible in full for taxation purposes.

SECTION 6. The governing powers and authority shall be vested in aBoard of Governors composed of thirty members, six of whom shall beappointed by the President of the Philippines, eighteen shall be electedby chapter delegates in biennial conventions and the remaining sixshall be elected by the twentyfour members of the Board alreadychosen. At least one but not more than three of the Presidentialappointees shall be chosen from the Armed Forces of the Philippines.



a. The term of office of all members of the board of Governors shallbe four years. Any member of the Board of Governor who hasserved two consecutive full terms of four years each shall beineligible for membership on the Board for at least two years;any term served to cover unexpired terms of office of anygovernor will not be considered in this prohibition in serving twoconsecutive full terms, and provided, however, that terms servedfor more than two years shall be considered a full term.

b. Vacancies in the Board of Governors caused by death orresignation shall be filled by election by the Board of Governorsat its next meeting, except that vacancies among thePresidential appointees shall be filled by the President.

SECTION 7. The President of the Philippines shall be the HonoraryPresident of the Philippine National Red Cross. The officers shallconsist of a Chairman, a ViceChairman, a Secretary, a Treasurer, aCounselor, an Assistant Secretary and an Assistant Treasurer, all ofwhom shall be elected by the Board of Governors from among itsmembership for a term of two years and may be reelected. Theelection of officers shall take place within sixty days after all themembers of the Board of Governors have been chosen and havequalified.

SECTION 8. The Biennial meeting of chapter delegates shall be held onsuch date and such place as may be specified by the Board ofGovernors to elect members of the Board of Governors and advice theBoard of Governors on the activities of the Philippine National RedCross; Provided, however that during periods of great emergency, theBoard of Governors in its discretion may determine that the bestinterest of the corporation shall be served by postponing such biennialmeeting.

SECTION 9. The power to ordain, adopt and amend bylaws andregulations shall be vested in the Board of Governors.

SECTION 10. The members of the Board of Governors, as well as theofficers of the corporation, shall serve without compensation. Thecompensation of the paid staff of the corporation shall be determinedby the Board of Governors upon the recommendation of the SecretaryGeneral.

SECTION 11. As a national voluntary organization, the PhilippineNational Red Cross shall be financed primarily by contributionsobtained through solicitation campaigns throughout the year which



shall be organized by the Board of Governors and conducted by theChapters in their respective jurisdictions. These fund raisingcampaigns shall be conducted independently of other fund drives andservice needs.

SECTION 12. The Board of Governors shall promulgate rules andregulations for the organization of local units of the Philippine NationalRed Cross to be known as Chapters. Said rules and regulations shallfix the relationship of the Chapters to the Corporation, define theirterritorial jurisdictions, and determine the number of delegates foreach chapter based on population, fund campaign potentials andservice needs.

SECTION 13. The Corporation shall, at the end of every calendar yearsubmit to the President of the Philippines an annual report containingthe activities of the Corporation showing its financial condition, thereceipts and disbursements.

SECTION 14. It shall be unlawful for any person to solicit, collect orreceive money, materials, or property of any kind by falselyrepresenting or pretending himself to be a member, agent orrepresentative of the Philippine National Red Cross.

SECTION 15. The use of the name Red Cross is reserved exclusively tothe Philippine National Red Cross and the use of the emblem of thered Greek cross on a white ground is reserved exclusively to thePhilippine National Red Cross, medical services of the Armed Forces ofthe Philippines and such other medical facilities or other institutions asmay be authorized by the Philippine National Red Cross as providedunder Article 44 of the Geneva Conventions. It shall be unlawful forany other person or entity to use the words Red Cross or GenevaCross or to use the emblem of the red Greek cross on a white groundor any designation, sign, or insignia constituting an imitation thereoffor any purpose whatsoever.

SECTION 16. As used in this Decree, the term person shall include anylegal person, group, or legal entity whatsoever nature, and any personviolating any section of this Article shall, upon conviction therefore beliable to a find of not less than one thousand pesos or imprisonmentfor a term not exceeding one year, or both, at the discretion of thecourt, for each and every offense. In case the violation is committedby a corporation or association, the penalty shall devolve upon thepresident, director or any other officer responsible for such violation.

SECTION 17. All acts or parts of acts which are inconsistent with theprovisions of this Decree are hereby repealed.



Sections 2 to 17 of R.A. No. 95, as amended, are not separable from Section 1,the provision creating and incorporating the PNRC, and cannot, by themselves,stand independently as law. The PNRC Charter obviously does not contain aseparability clause.

The constitutionality of a law is presumed

Two other important points militate against the declaration of Section 1 of thePNRC Charter as invalid and unconstitutional, namely: (1) respondent does notquestion the constitutionality of the said provision; and (2) every lawenjoys the presumption of constitutionality.

Settled is the doctrine that all reasonable doubts should be resolved in favor ofthe constitutionality of a statute. [33] The presumption is that the legislatureintended to enact a valid, sensible and just law and one which operates nofurther than may be necessary to effectuate the specific purpose thereof.[34]

Justice Carpio, in Kapisanan ng mga Kawani ng Energy Regulatory Board v.Barin,[35] even echoes the principle that "to justify the nullification of a law, theremust be a clear and unequivocal breach of the Constitution."

Here, as in Camporedondo and Baluyot, there is no clear showing that the PNRCCharter runs counter to the Constitution. And, again in the same tone as inMontesclaros v. Commission on Elections, "[the parties] are not even assailingthe constitutionality of [the PNRC Charter]." A becoming courtesy to a coequalbranch should thus impel this Court to refrain from unceremoniously invalidatinga legislative act.

Deleterious effects will resultif PNRC is declared a private corporation, among which are its consequent destruction as an institution and the Republic's shirking its obligation under the Geneva Convention

The hypothesis that PNRC is a private corporation has farreaching implications.As mentioned earlier, it will be a reversal of the doctrines laid down inCamporedondo and Baluyot, and it will have an unsettling ripple effect on othernumerous decisions of the Court, including those dealing with the jurisdiction ofthe CSC and the authority of the COA.

Not only that. If PNRC is considered as a private corporation, then, this will lead



to its ultimate demise as an institution. Its employees will no longer be coveredby the Government Service Insurance System. It can no longer be extended taxexemptions and official immunity and it cannot anymore be given support,financial or otherwise, by the National Government, the local government unitsand the PCSO; because these will violate not only the equal protection clause inthe Constitution, but also penal statutes.

And if PNRC is consequently obliterated, the Republic will be shirking itsresponsibilities and obligations under the Geneva Convention.

This Court then has to be very careful in the resolution of this case and in makinga declaration that will have unintended yet deleterious consequences. The Courtmust not arbitrarily declare a law unconstitutional just to save a single individualfrom the unavoidable consequences of his transgression of the Constitution, evenif it be unintentional and done in good faith.

The respondent holds twoincompatible officesin violation of the Constitution

Section 13, Article VI of the Constitution explicitly provides that "no Senator orMember of the House of Representatives may hold any other office oremployment in the government, or any subdivision, agency or instrumentalitythereof, including [GOCCs] or their subsidiaries, during his term without forfeitinghis seat."[36] In Adaza v. Pacana, Jr.,[37] the Court, construing a parallelprovision in the 1973 Constitution, has ruled that

The language used in the abovecited section is plain, certainand free from ambiguity. The only exceptions mentioned thereinare the offices of prime minister and cabinet member. The wisdomor expediency of the said provision is a matter which is notwithin the province of the Court to determine.

A public office is a public trust. It is created for the interestand the benefit of the people. As such, a holder thereof "issubject to such regulations and conditions as the law mayimpose" and "he cannot complain of any restrictions whichpublic policy may dictate on his holding of more than oneoffice." It is therefore of no avail to petitioner that the system ofgovernment in other states allows a local elective official to act as anelected member of the parliament at the same time. The dictate ofthe people in whom legal sovereignty lies is explicit. Itprovides no exceptions save the two offices specifically cited inthe abovequoted constitutional provision. Thus, while it may besaid that within the purely parliamentary system of government no



incompatibility exists in the nature of the two offices underconsideration, as incompatibility is understood in common law, theincompatibility herein present is one created by no less thanthe constitution itself. In the case at bar, there is no question thatpetitioner has taken his oath of office as an elected MambabatasPambansa and has been discharging his duties as such. In the light ofthe oftmentioned constitutional provision, this fact operated to vacatehis former post and he cannot now continue to occupy the same, norattempt to discharge its functions.[38]

There is no doubt that the language in Section 13, Article VI is unambiguous; itrequires no indepth construction. However, as the constitutional provision isworded at present, the then recognized exception adverted to in Adaza, i.e.,offices of prime minister and cabinet member, no longer holds true given thereversion to the presidential system and a bicameral Congress in the 1987Constitution. There remains, however, a single exception to the rule. CivilLiberties Union v. Executive Secretary,[39] reiterated in the fairly recent PublicInterest Center, Inc. v. Elma,[40] recognizes that a position held in an ex officiocapacity does not violate the constitutional proscription on the holding of multipleoffices. Interpreting the equivalent section in Article VII on the ExecutiveDepartment,[41] the Court has decreed in Civil Liberties that

The prohibition against holding dual or multiple offices or employmentunder Section 13, Article VII of the Constitution must not, however, beconstrued as applying to posts occupied by the Executive officialsspecified therein without additional compensation in an ex officiocapacity as provided by law and as required by the primary functionsof said officials' office. The reason is that these posts do notcomprise "any other office" within the contemplation of theconstitutional prohibition but are properly an imposition ofadditional duties and functions on said officials. x x x

x x x x

x x x x The term ex officio means "from office; by virtue ofoffice." It refers to an "authority derived from official charactermerely, not expressly conferred upon the individual character,but rather annexed to the official position." Ex officio likewisedenotes an "act done in an official character, or as aconsequence of office, and without any other appointment orauthority other than that conferred by the office." An ex officiomember of a board is one who is a member by virtue of his titleto a certain office, and without further warrant or



appointment. x x x

x x x x

The ex officio position being actually and in legalcontemplation part of the principal office, it follows that theofficial concerned has no right to receive additionalcompensation for his services in the said position. The reasonis that these services are already paid for and covered by thecompensation attached to his principal office. x x x[42]

In the instant case, therefore, we must decide whether the respondent holds thechairmanship of PNRC in an ex officio capacity. Presidential Decree (P.D.) No.1264, amending R.A. No. 95, provides for the composition of the governingauthority of the PNRC and the manner of their appointment or election, thus:

Section 6. The governing powers and authority shall be vested in aBoard of Governors composed of thirty members, six of whom shall beappointed by the President of the Philippines, eighteen shall be electedby chapter delegates in biennial conventions and the remaining sixshall be elected by the twentyfour members of the Board alreadychosen. At least one but not more than three of the Presidentialappointees shall be chosen from the Armed Forces of the Philippines.

a. The term of office of all members of the board ofGovernors shall be four years. Any member of the Board ofGovernor who has served two consecutive full terms of fouryears each shall be ineligible for membership on the Boardfor at least two years; any term served to cover unexpiredterms of office of any governor will not be considered inthis prohibition in serving two consecutive full terms, andprovided, however, that terms served for more than twoyears shall be considered a full term.

b. Vacancies in the Board of Governors caused by death orresignation shall be filled by election by the Board ofGovernors at its next meeting, except that vacanciesamong the Presidential appointees shall be filled by thePresident.

Section 7. The President of the Philippines shall be the HonoraryPresident of the Philippine National Red Cross. The officers shall



consist of a Chairman, a ViceChairman, a Secretary, a Treasurer, aCounselor, an Assistant Secretary and an Assistant Treasurer, all ofwhom shall be elected by the Board of Governors from among itsmembership for a term of two years and may be reelected. Theelection of officers shall take place within sixty days after all themembers of the Board of Governors have been chosen and havequalified.

Nowhere does it say in the law that a member of the Senate can sit in an exofficio capacity as chairman of the PNRC Board of Governors. Chairmanship of thePNRC Board is neither an extension of the legislative position nor is it in aid oflegislative duties.[43] Likewise, the position is neither derived from one being amember of the Senate nor is it annexed to the Senatorial position. Stateddifferently, the PNRC chairmanship does not flow from one's election as Senatorof the Republic. Applying Civil Liberties, we can then conclude that thechairmanship of the PNRC Board is not held in an ex officio capacity by a memberof Congress.

The fact that the PNRC Chairman of the Board is not appointed by thePresident[44] and the fact that the former does not receive any compensation[45]

do not at all give the said position an ex officio character such that the occupantthereof becomes exempt from the constitutional proscription on the holding ofmultiple offices. As held in Public Interest Center, the absence of additionalcompensation being received by virtue of the second post is not enough, whatmatters is that the second post is held by virtue of the functions of the first officeand is exercised in an ex officio capacity.[46] Hence, Senator Gordon, in assumingthe chairmanship of the PNRC Board of Governors while being a member of theSenate, is clearly violating Section 13, Article VI of the Constitution. While we canonly hypothesize on the extent of the incompatibility between the two officesasstated in petitioners' memorandum, Senator Gordon's holding of both offices mayresult in a divided focus of his legislative functions, and in a conflict of interest aswhen a possible amendment of the PNRC Charter is lobbied in Congress or whenthe PNRC and its officials become subjects of legislative inquiries.[47] Let it bestressed that, as in Adaza, the incompatibility herein present is one created by noless than the Constitution itself.[48]

I hasten to add that Senator Gordon's chairmanship of the PNRC Board cannot belikened to the membership of several legislators in the LegislativeExecutiveDevelopment Advisory Council, in the Council of State, in the Board of Regents ofstate universities, and in the Judiciary, Executive and Legislative Advisory andConsultative Council, because, in these bodies, the membership of the legislatorsis held in an ex officio capacity or as an extension of their legislative functions.[49]



IN VIEW OF THE FOREGOING, I vote to GRANT the petition.

[1] Rollo, pp. 35.

[2] See Del Rosario v. Montaña, G.R. No. 134433, May 28, 2004, 430 SCRA 109,116; Del Mar v. Philippine Amusement and Gaming Corp., 400 Phil. 307, 326327; Sen. DefensorSantiago v. Guingona, Jr., 359 Phil. 276, 295296 (1998).

[3] G.R. No. 170338, December 23, 2008.

[4] G.R. No. 168338, February 15, 2008, 545 SCRA 441.

[5] Id.

[6] Garcillano v. the House of Representatives Committees on Public Information,Public Order and Safety, National Defense and Security, Information andCommunications Technology, and Suffrage and Electoral Reforms, supra note 3.

[7] <http://www.redcross.org.ph/Site/PNRC/History.aspx> (visited July9, 2009).

[8] (visited July 9, 2009).

[9] Supra note 7.

[10] Entitled "An Act To Incorporate the Philippine National Red Cross."

[11] 464 Phil. 439 (2004).

[12] Id. at 454455; citations omitted and emphasis supplied.

[13] Id. at 455.

[14] The amendatory laws are Republic Act No. 855 (January 11, 1953), RepublicAct No. 6373 (August 16, 1971) and Presidential Decree No. 1264 (December 15,1977).

[15] 370 Phil. 901, 906 (1999).

[16] 382 Phil. 131 (2000)



[17] Id. at 136137.

[18] Emphasis supplied.

[19] 377 Phil. 1019 (1999).

[20] See for instance Proclamation No. 50, which categorized GOCCs into parentand subsidiary corporations, cited in Philippine National Construction Corporationv. Pabion, et al., supra.

[21] See also the definition of a GOCC in Section 2(a) of Administrative Order No.59 (December 5, 1988), which provides:

"x x x

(a) Governmentowned and/or controlled corporation, hereinafter referred to asGOCC or government corporation, is a corporation which is created by special lawor organized under the Corporation Code in which the Government, directly orindirectly, has ownership of the majority of the capital or has voting control;Provided that an acquired asset corporation as defined in the next paragraphshall not be considered as GOCC or government corporation."

[22] Underscoring supplied.

[23] Emphasis supplied.

[24] See Section 4(c) of R.A. No. 95, as amended.

[25] (visited July 9, 2009).

[26] 385 U.S. 355, 358360; 87 S.Ct. 464, 467 (1966).

[27] Id.

[28] 829 F.Supp. 1290, 1311 (1993)

[29] 826 F.Supp. 412, 413414 (1993).

[30] Supre note 27.

[31] 43 F.3d 678 91994); 516 U.S. 822 (1995); 516 U.S. 1002, 116 S.Ct. 550(1995).



[32] Section 16, Article XII, Philippine Constitution.

[33] Beltran v. Secretary of Health, G.R. Nos. 133640, 133661 and 139147,November 25, 2005, 476 SCRA 168, 199.

[34] Perez v. People, G.R. No. 164763, February 12, 2008, 544 SCRA 532, 565.

[35] G.R. No. 150974, June 29, 2007, 526 SCRA 1, 8.

[36] The full text of the provision reads:

"Section 13. No Senator or Member of the House of Representatives may holdany other office or employment in the government, or any subdivision, agency orinstrumentality thereof, including governmentowned or controlled corporationsor their subsidiaries, during his term without forfeiting his seat. Neither shall hebe appointed to any office which may have been created or the emolumentsthereof increased during the term for which he was elected."

[37] No. L68159, March 18, 1985, 135 SCRA 431.

[38] Id. at 434435; emphasis supplied.

[39] G.R. No. 83896, February 22, 1991, 194 SCRA 317.

[40] G.R. No. 138965, June 30, 2006, 494 SCRA 53, 6364.

[41] Section 13, Article VII of the Constitution provides in full:

"Section 13. The President, VicePresident, the Members of the Cabinet, and theirdeputies or assistants shall not, unless otherwise provided in this Constitution,hold any other office or employment during their tenure. They shall not, duringsaid tenure, directly or indirectly, practice any other profession, participate in anybusiness, or be financially interested in any contract with, or in any franchise, orspecial privilege granted by the Government or any subdivision, agency orinstrumentality thereof, including governmentowned or controlled corporationsor their subsidiaries. They shall strictly avoid conflict of interest in the conduct oftheir office.

"The spouse and relatives by consanguinity or affinity within the fourth civildegree of the President shall not during his tenure be appointed as Members ofthe Constitutional Commissions, or the Office of the Ombudsman, or asSecretaries, Undersecretaries, chairmen or head of bureaus or offices, includinggovernmentowned or controlled corporations and their subsidiaries."



[42] Civil Liberties Union v. Executive Secretary, supra note 5, at 331335;emphasis supplied.

[43] See Cruz, Philippine Political Law, 1998 ed., p. 129.

[44] See Section 7 of P.D. No. 1264.

[45] Section 10 of P.D. No. 1264 provides:

"Section 10. The members of the Board of Governors, as well as the officers ofthe corporation, shall serve without compensation. The compensation of the paidstaff of the corporation shall be determined by the Board of Governors upon therecommendation of the Secretary General."

[46] Public Interest Center v. Elma, supra note 6, at 63.

[47] Rollo, p. 28.

[48] Adaza v. Pacana, Jr., supra note 3.

[49] See R.A. No. 7640, Executive Order (E.O.) No. 305, Series of 1987; R.A. No.8292, R.A. No. 9500, and the JELAC Memorandum of Agreement.

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Liban vs. Gordon (2009)