Kristen M.

Marcelino

DENNIS A. B. FUNA v. EXECUTIVE SECRETARY 
EDUARDO R. ERMITA, Office of the

The disqualification laid down in Section 13, Article VII is aimed at preventing the
concentration of powers in the Executive Department officials, specifically the President, Vice-
President, Members of the Cabinet and their deputies and assistants.

FACTS

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

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

During the pendency of this petition, Bautista was appointed Administrator of the MARINA vice
Vicente T. Suazo, Jr. and she assumed her duties and responsibilities as such on February 2, 2009.

Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and MARINA OIC
is in violation of Section 13, Article VII of the 1987 Constitution. He points out that while it was
clarified in Civil Liberties Union that the prohibition does not apply to those positions held in ex-
officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTC
Undersecretary. Moreover, the provisions on the DOTC in the Administrative Code of 1987, do not
provide any ex-officio role for the undersecretaries in any of the departments attached agencies. The
fact that Bautista was extended an appointment naming her as OIC of MARINA shows that she
does not occupy it in an ex-officio capacity since an ex-officio position does not require any further
warrant or appoint.

On the other hand, the respondents argue that there was no violation of Section 13, Article VII of
the 1987 Constitution because respondent Bautista was merely designated acting head of MARINA
on September 1, 2008. She was designated MARINA OIC, not appointed MARINA Administrator.
With the resignation of Vicente T. Suazo, Jr., the position of MARINA Administrator was left
vacant, and pending the appointment of permanent Administrator, respondent Bautista was
designated OIC in a temporary capacity for the purpose of preventing a hiatus in the discharge of
official functions. Her case thus falls under the recognized exceptions to the rule against multiple
offices, i.e., without additional compensation (she did not receive any emolument as MARINA OIC)
and as required by the primary functions of the office. Besides, Bautista held the position for four
(4) months only, as in fact when she was appointed MARINA Administrator on February 2, 2009,
she relinquished her post as DOTC Undersecretary for Maritime Transport, in acknowledgment of
the proscription on the holding of multiple offices.

ISSUE:

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

HELD:

Yes. The Supreme Court held that designation of respondent Ma. Elena H. Bautista as Officer-in-
Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with
her position as DOTC Undersecretary for Maritime Transport, was declared unconstitutional for
being violative of Section 13, Article VII of the 1987 Constitution and therefore, null and void

Undersecretary Bautista’s designation as MARINA OIC falls under the stricter

Resolution of the present controversy hinges on the correct application of Section 13, Article VII of
the 1987 Constitution, which provides that the President, Vice-President, the Members of the
Cabinet, and heir deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure x x x.

On the other hand, Section 7, paragraph (2), Article IX-B reads: Unless otherwise allowed by
law or the primary functions of his position, no appointive official shall hold any other office
or employment in the Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.

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

The prohibition against holding dual or multiple offices or employment under Section 13, Article
VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive officials
specified therein, without additional compensation in an ex- officio capacity as provided by law and
as required by the primary functions of said office. The reason is that these posts do not comprise
any other office within the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. Apart from their bare assertion that
respondent Bautista did not receive any compensation when she was OIC of MARINA, respondents
failed to demonstrate clearly that her designation as such OIC was in an ex-officio capacity as
required by the primary functions of her office as DOTC Undersecretary for Maritime Transport.

It must be stressed though that while the designation was in the nature of an acting and temporary
capacity, the words hold the office were employed. Such holding of office pertains to both
appointment and designation because the appointee or designate performs the duties and functions
of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible
offices, refers to the holding of the office, and not to the nature of the appointment or designation,
words which were not even found in Section 13, Article VII nor in Section 7, paragraph 2, Article
IX-B. To hold an office means to possess or occupy the same, or to be in possession and
administration, which implies nothing less than the actual discharge of the functions and duties of
the office.