Incompatible and Forbidden Offices (Sec. 13)

(Liban v. Gordon, G.R. No.175352, July 15, 2009)

Definition – any other office or employment in the government, including GOCCs or their subsidiaries, when concurrently held by a legislator during his term of office

FACTS:

On July 15, 2009 the Court rendered a decision partially voiding Republic Act 95 (R.A. 95), the charter of the Philippine National Red Cross (PNRC) as amended by Presidential Decrees 1264 and 1643 (P.D. 1264 and 1643).

The Court based its decision on a finding that the PNRC is a private corporation which Congress could not create by special law. Like any other private corporation, the PNRC can only be formed and organized under a general enabling law like the Corporation Code.

The decision stemmed from a petition that petitioners Dante Liban, et al (Liban, et al) filed with the Court to declare respondent Senator Richard J. Gordon (Sen. Gordon) as having forfeited his Senate seat under Section 13, Article VI of the 1987 Constitution.1 Sen. Gordon had been elected Chairman of the Board of Governors of the PNRC, which the Court classified in Camporedondo v. NLRC2 as a government-owned and controlled corporation (GOCC). Consequently, he automatically forfeited his Senate seat for holding an incompatible office in a GOCC.

Due to this requirement, the PNRC must not appear to be an instrument or agency of the government for, “otherwise, it cannot merit the trust of all and cannot effectively carry out its mission.”5 It must, in case of invasion or an internal war, maintain its neutrality and independence to be able to fulfill its humanitarian tasks. It cannot choose to treat only the wounded on one side.

Moreover, the PNRC cannot be government-owned because it does not receive appropriations from Congress or possess government assets. It is funded by voluntary donations from private contributors. The government does not have control over its affairs. While the President of the Philippines appoints six of the PNRC Board of Governors, the overwhelming majority of the thirty-member board is elected by private sector members. The PNRC Chairman is not appointed by or under the control of the President of the Philippines. He is elected by the organization’s governing board. These all prove that the position of PNRC Chairman is a private, not a government office.

ISSUE:

Whether or not Red Cross is an incompatible office in GOCC and that Sen. Gordon did not forfeit his Senate seat.

HELD:

NO.

As for its organizational nature, the PNRC asserts that it is neither a private nor a government corporation but a sui generis entity, a unique being with no equivalent in corporate organizations. While the PNRC performs certain public services, its neutrality and independence would be compromised if it were to be deemed as a government-owned corporation or instrumentality. Besides, it is in fact neither owned nor controlled by the government.

The PNRC also stressed that, although it has private characteristics, it was not created for profit or gain but in compliance with treaty obligations under the Geneva Conventions. As such, it is an auxiliary of government in the performance of humanitarian functions under international law.

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