President Ramos issued E.O. No. 128, “reconstituting the Committee and renamed the Committee as the “National Centennial Commission.” Appointed to chair the reconstituted Commission was Vice-President Salvador H. Laurel.
The Philippine Centennial Expo ’98 Corporation (Expocorp) was created and petitioner was among the nine incorporators, and was elected Expocorp Chief Executive Officer.
However, there were alleged anomalies in the construction and operation of the Centennial Exposition Project at the Clark Special Economic Zone that were was referred to the Blue Ribbon Committee for investigation.
President Joseph Estrada issued A.O. No. 35, creating an ad hoc and independent Citizens’ Committee to investigate all the facts and circumstances surrounding the Philippine centennial projects.
Among the Committee’s recommendations was “the prosecution by the Ombudsman/DOJ of Laurel, chair of National Centennial Commission (NCC) and of Expocorp for violating the rules on public bidding, relative to the award of centennial contracts to AK Corp.; for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid contract that has caused material injury to government and for participating in the scheme to preclude audit by COA of the funds infused by the government for the implementation of the said contracts all in violation… of the anti-graft law.”
Probable cause was found to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEÑA before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594.” The resolution also directed that an information for violation of the said law be filed against Laurel and Peña.
Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but dismissed the charge against Peña.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer as defined by R.A. No. 3019 and that NCC was not a public office.
Whether petitioner, as Chair of the NCC, was a public officer.
The Constitution describes the Ombudsman and his Deputies as “protectors of the people,” who “shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.”
Among the awesome powers, functions, and duties vested by the Constitution upon the Office of the Ombudsman is to “[i]nvestigate… any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.”
In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.
Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A definition of public officers cited in jurisprudence is that provided by Mechem, a recognized authority on the subject:
A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.
The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office.
Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign functions of government as “[t]he most important characteristic” in determining whether a position is a public office or not.
The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; – that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.
Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial.
We hold that the NCC performs executive functions. The executive power “is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance.” The executive function, therefore, concerns the implementation of the policies as set forth by law.
The NCC was precisely created to execute the policies and objectives, to carry them into effect.
Our conclusion that petitioner is a public officer finds support in In Re Corliss. There the Supreme Court of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an “office of trust” as to disqualify its holder as elector of the United States President and Vice-President.
Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a public office, we need no longer delve at length on the issue of whether Expocorp is a private or a public corporation. Even assuming that Expocorp is a private corporation, petitioner’s position as CEO of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair.
A “public officer,” under R.A. No. 3019, is defined by Section 2 of said law as follows:
SEC. 2. Definition of terms. – As used in this Act, the term –
x x x
(b) “Public officer” includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government as defined in the preceding paragraph. [Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a “public officer” is expressly limited to the application of R.A. No. 3019. Said definition does not apply for purposes of determining the Ombudsman’s jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-Graft and Corrupt Practices Act involves the appreciation of evidence and interpretation of law, matters that are best resolved at trial.
To illustrate, the use of the term “includes” in Section 2 (b) indicates that the definition is not restrictive. The Anti-Graft and Corrupt Practices Act is just one of several laws that define “public officers.”
Article 203 of the Revised Penal Code, for example, provides that a public officer is:
x x x any person who, by direct provision of law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of Philippines, or performs in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class.
Officer – as distinguished from “clerk” or “employee”, refers to a person whose duties not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular person in the exercise of governmental power, “officer” includes any government employee, agent or body having authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees), one may be considered a “public official” whether or not one receives compensation, thus:
“Public Officials” include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service including military and police personnel, whether or not they receive compensation, regardless of amount.
Petition was Dismissed.