[G.R. No. 145368.

April 12, 2002]

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in

his capacity as Ombudsman, respondent.

DECISION
KAPUNAN, J.:

On June 13, 1991, President Corazon C. Aquino issued Administrative

Order No. 223 constituting a Committee for the preparation of the National
Centennial Celebration in 1998. The Committee was mandated to take charge
of the nationwide preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the Inauguration
of the Malolos Congress. [1]

Subsequently, President Fidel V. Ramos issued Executive Order No. 128,

reconstituting the Committee for the preparation of the National Centennial
Celebrations in 1998. It renamed the Committee as the National Centennial
Commission. Appointed to chair the reconstituted Commission was Vice-
President Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon
C. Aquino were named Honorary Chairpersons. [2]

Characterized as an ad-hoc body, the existence of the Commission shall

terminate upon the completion of all activities related to the Centennial
Celebrations. Like its predecessor Committee, the Commission was tasked to
[3]

take charge of the nationwide preparations for the National Celebration of the
Philippine Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged
with the responsibility to prepare, for approval of the President, a
Comprehensive Plan for the Centennial Celebrations within six (6) months from
the effectivity of the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:

Sec. 3. The Commission shall be provided with technical and administrative staff
support by a Secretariat to be composed of, among others, detailed personnel from the
Presidential Management Staff, the National Commission for Culture and the Arts,
and the National Historical Institute. Said Secretariat shall be headed by a full time
Executive Director who shall be designated by the President.

Sec. 4. The Commission shall be funded with an initial budget to be drawn from the
Department of Tourism and the presidents Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President. Appropriations for
succeeding years shall be incorporated in the budget of the Office of the President.

Subsequently, a corporation named the Philippine Centennial Expo 98

Corporation (Expocorp) was created. Petitioner was among the nine (9)
[4]

Expocorp incorporators, who were also its first nine (9) directors. Petitioner was
elected Expocorp Chief Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege
speech in the Senate denouncing alleged anomalies in the construction and
operation of the Centennial Exposition Project at the Clark Special Economic
Zone. Upon motion of Senator Franklin Drilon, Senator Cosetengs privilege
speech was referred to the Committee on Accountability of Public Officers and
Investigation (The Blue Ribbon Committee) and several other Senate
Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative
Order No. 35, creating an ad hoc and independent citizens committee to
investigate all the facts and circumstances surrounding the Philippine
centennial projects, including its component activities. Former Senator Rene
A.V. Saguisag was appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the
Secretary of the Senate its Committee Final Report No. 30 dated February 26,
1999. Among the Committees recommendations was the prosecution by the
Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for
violating the rules on public bidding, relative to the award of centennial contracts
to AK (Asia Construction & Development Corp.); for exhibiting manifest bias in
the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom
Ring) even in the absence of a valid contract that has caused material injury to
government and for participating in the scheme to preclude audit by COA of the
funds infused by the government for the implementation of the said contracts
all in violation of the anti-graft law.
[5]

Later, on November 5, 1999, the Saguisag Committee issued its own

report. It recommended the further investigation by the Ombudsman, and
indictment, in proper cases of, among others, NCC Chair Salvador H. Laurel for
violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section
11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.
 The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the Office of
the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation
Report, recommending:
1. that a formal complaint be filed and preliminary investigation be conducted before the
Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman
against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP
President Teodoro Q. Pea and AK President Edgardo H. Angeles for violation of Sec.
3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules
and Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
complainant.[6]

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the

Evaluation and Preliminary Investigation Bureau, directed petitioner to submit
his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners
motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000
Order but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation
Bureau issued a resolution finding probable cause to indict respondents
SALVADOR H. LAUREL and TEODORO Q. PEA 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 Pea. Ombudsman Aniano
A. Desierto approved the resolution with respect to Laurel but dismissed the
charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary
restraining order, commanding respondents to desist from filing any information
before the Sandiganbayan or any court against petitioner for alleged violation
of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the
parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he
is not a public officer because:
 A.

EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL

WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION
WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT
PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE
CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION.

B.

THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A

PUBLIC OFFICE.

C.

PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP

WAS NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT &
CORRUPT PRACTICES ACT.[7]

In addition, petitioner in his reply invokes this Courts decision in Uy vs.

[8]

Sandiganbayan, where it was held that the jurisdiction of the Ombudsman was
[9]

limited to cases cognizable by the Sandiganbayan, i.e., over public officers of

Grade 27 and higher. As petitioners position was purportedly not classified as
Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman,
would have no jurisdiction over him.
This last contention is easily dismissed. In the Courts decision in Uy, we
held that it is the prosecutor, not the Ombudsman, who has the authority to file
the corresponding information/s against petitioner in the regional trial court.The
Ombudsman exercises prosecutorial powers only in cases cognizable by the
Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:

The clear import of such pronouncement is to recognize the authority of the State and
regular provincial and city prosecutors under the Department of Justice to have
control over prosecution of cases falling within the jurisdiction of the regular
courts. The investigation and prosecutorial powers of the Ombudsman relate to cases
rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of
R.A. 6770 (An Act Providing for the Functional and Structural Organization of the
Office of the Ombudsman, and for other purposes) which vests upon the
Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan And
this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the
Office of the Special Prosecutor shall have the power to conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan. Thus, repeated references to the Sandiganbayans jurisdiction clearly
serve to limit the Ombudsmans and Special Prosecutors authority to cases cognizable
by the Sandiganbayan. [Emphasis in the original.]

The foregoing ruling in Uy, however, was short-lived. Upon motion for
clarification by the Ombudsman in the same case, the Court set aside the
foregoing pronouncement in its Resolution dated March 20, 2001. The Court
explained the rationale for this reversal:

The power to investigate and to prosecute granted by law to the Ombudsman is

plenary and unqualified. It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the clause
any illegal act or omission of any public official is broad enough to embrace any
crime committed by a public officer or employee.

The reference made by RA 6770 to cases cognizable by the Sandiganbayan,

particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute criminal cases within
the jurisdiction of the Sandiganbayan, should not be construed as confining the scope
of the investigatory and prosecutory power of the Ombudsman to such cases.

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases

cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman to take over, at any stage, from any investigatory agency
of the government, the investigation of such cases. The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of cases involving public officers
and employees by other courts. The exercise by the Ombudsman of his primary
jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the
discharge of his duty to investigate and prosecute other offenses committed by public
officers and employees. Indeed, it must be stressed that the powers granted by the
legislature to the Ombudsman are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public officers and employees during
their tenure of office.

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated
with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The
Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control and upon authority
of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is
limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly,
the lawmakers did not intend to confine the investigatory and prosecutory power of
the Ombudsman to these types of cases. The Ombudsman is mandated by law to act
on all complaints against officers and employees of the government and to enforce
their administrative, civil and criminal liability in every case where the evidence
warrants. To carry out this duty, the law allows him to utilize the personnel of his
office and/or designate any fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to assist in the investigation and
prosecution of certain cases. Those designated or deputized to assist him work under
his supervision and control. The law likewise allows him to direct the Special
Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance
with Section 11 (4c) of RA 6770.

The prosecution of offenses committed by public officers and employees is one of the
most important functions of the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to make him a more active
and effective agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent. [Emphasis in the
original.]

Having disposed of this contention, we proceed to the principal grounds

upon which petitioner relies. We first address the argument that petitioner, as
Chair of the NCC, was not a public officer.
The Constitution describes the Ombudsman and his Deputies as
[10]

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
[11]

[i]nvestigate any act or omission of any public official, employee, office or

agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
The foregoing constitutional provisions are substantially reproduced in R.A.
No. 6770, otherwise known as the Ombudsman Act of 1989. Sections 13 and
15(1) of said law respectively provide:

SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people
shall act promptly on complaints file in any form or manner against officers or
employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants
in order to promote efficient service by the Government to the people.

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases;

x x x.
The coverage of the law appears to be limited only by Section 16, in relation
to Section 13, supra:

SEC 16. Applicability. The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance and non-feasance that have been committed by any officer
or employee as mentioned in Section 13 hereof, during his tenure of office.

In sum, the Ombudsman has the power to investigate any malfeasance,

misfeasance and non-feasance by a public officer or employee of the
government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations. [12]

Neither the Constitution nor the Ombudsman Act of 1989, however, defines
who public officers are. A definition of public officers cited in jurisprudence is [13]

that provided by Mechem, a recognized authority on the subject:

A public office is the right, authority and duty, created and conferred by law, by
which, for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign functions
of the government, to be exercised by him for the benefit of the public. The individual
so invested is a public officer.[14]

The characteristics of a public office, according to Mechem, include the

delegation of sovereign functions, its creation by law and not by contract, an
oath, salary, continuance of the position, scope of duties, and the designation
of the position as an office. [15]
 Petitioner submits that some of these characteristics are not present in the
position of NCC Chair, namely: (1) the delegation of sovereign functions; (2)
salary, since he purportedly did not receive any compensation; and (3)
continuance, the tenure of the NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign
functions of government as [t]he most important characteristic in determining
whether a position is a public office or not.

The most important characteristic which distinguishes an office from an employment

or contract is that the creation and conferring of an office involves a delegation to the
individual of some of the sovereign functions of government, to be exercised by him
for the benefit of the public; that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be exercised for the
public benefit. Unless the powers conferred are of this nature, the individual is not a
public officer.[16]

Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions that
can be described as legislative or judicial. May the functions of the NCC then
be described as executive?
We hold that the NCC performs executive functions. The executive power
is generally defined as the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and enforcing their due
observance. The executive function, therefore, concerns the implementation
[17]

of the policies as set forth by law.

The Constitution provides in Article XIV (Education, Science and
Technology, Arts, Culture, and Sports) thereof:

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nations historical and cultural heritage and
resources, as well as artistic creations.

In its preamble, A.O. No. 223 states the purposes for the creation of the
Committee for the National Centennial Celebrations in 1998:

Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and
the centennial presents an important vehicle for fostering nationhood and a strong
sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;

Whereas, the success of the Centennial Celebrations may be insured only through
long-range planning and continuous developmental programming;

Whereas, the active participation of the private sector in all areas of special expertise
and capability, particularly in communication and information dissemination, is
necessary for long-range planning and continuous developmental programming;

Whereas, there is a need to create a body which shall initiate and undertake the
primary task of harnessing the multisectoral components from the business, cultural,
and business sectors to serve as effective instruments from the launching and
overseeing of this long-term project;

x x x.

E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the need to strengthen the said Committee to ensure
a more coordinated and synchronized celebrations of the Philippine Centennial
and wider participation from the government and non-government or private
organizations. It also referred to the need to rationalize the relevance of
historical links with other countries.
The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was vested with
the following functions:
(a) To undertake the overall study, conceptualization, formulation and implementation of
programs and projects on the utilization of culture, arts, literature and media as
vehicles for history, economic endeavors, and reinvigorating the spirit of national unity
and sense of accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National Exposition 98 within
Metro Manila, the original eight provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to awareness and
celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of all information
about the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the implementation of the
programs and projects;
(e) To prioritize the refurbishment of historical sites and structures nationwide. In this
regard, the Commission shall formulate schemes (e.g. lease-maintained-and-
transfer, build-operate-transfer, and similar arrangements) to ensure the preservation
and maintenance of the historical sites and structures;
 (f) To call upon any government agency or instrumentality and corporation, and to invite
private individuals and organizations to assist it in the performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs, projects, activities as
well as the status of the preparations for the Celebration.[18]

It bears noting the President, upon whom the executive power is

vested, created the NCC by executive order. Book III (Office of the
[19]

President), Chapter 2 (Ordinance Power), Section 2 describes the nature of

executive orders:

SEC. 2. Executive Orders. Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Underscoring ours.]

Furthermore, the NCC was not without a role in the countrys economic
development, especially in Central Luzon. Petitioner himself admitted as much
in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, dont you agree that the
task of the centennial commission was also to focus on the long term over all socio
economic development of the zone and Central Luzon by attracting investors in the
area because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted to touch on
by lack of material time I could not but that is a very important point. When I was
made Chairman I wanted the Expo to be in Batangas because I am aBatangeo but
President Ramos said Mr. Vice President the Central Luzon is suffering, suffering
because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery
in that area by putting this Expo in Clark Field and so it was done I agreed and Your
Honor if I may also mention we wanted to generate employment aside from
attracting business investments and employment. And the Estrada administration
decided to junk this project there 48, 40 thousand people who lost job, they were
employed in Expo. And our target was to provide 75 thousand jobs. It would have
really calibrated, accelerated the development of Central Luzon. Now, I think they
are going back to that because they had the airport and there are plan to revive the
Expo site into key park which was the original plan.

There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy. [20]

Petitioner invokes the ruling of this Court in Torio vs. Fontanilla that the [21]

holding by a municipality of a town fiesta is a proprietary rather than a

governmental function. Petitioner argues that the holding of a nationwide
celebration which marked the nations 100 birthday may be likened to a national
th
fiesta which involved only the exercise of the national governments proprietary
function. In Torio, we held:
[22]

[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]
simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for
the special benefit of the community and not for the general welfare of the public
performed in pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide entertainment to the
town inhabitants is not a conclusive test. For instance, the maintenance of parks is not
a source of income for the town, nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools, jails, and the like which are for
public service.

As stated earlier, there can be no hard and fast rule for purposes of determining the
true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. The basic
element, however beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the state is involved in the
celebration of a town fiesta.

Torio, however, did not intend to lay down an all-encompassing

doctrine. Note that the Court cautioned that there can be no hard and fast rule
for purposes of determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive. Thus, in footnote 15 of Torio, the Court, citing
an American case, illustrated how the surrounding circumstances plus the
political, social, and cultural backgrounds could produce a conclusion different
from that in Torio:

We came across an interesting case which shows that surrounding circumstances plus
the political, social, and cultural backgrounds may have a decisive bearing on this
question. The case of Pope v. City of New Haven, et al. was an action to recover
damages for personal injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have been caused by defendants
negligence. The defendants demurred to the complaint invoking the defense that the
city was engaged in the performance of a public governmental duty from which it
received no pecuniary benefit and for negligence in the performance of which no
statutory liability is imposed. This demurrer was sustained by the Superior Court of
New Haven Country. Plaintiff sought to amend his complaint to allege that the
celebration was for the corporate advantage of the city. This was denied. In affirming
the order, the Supreme Court of Errors of Connecticut held inter alia:

Municipal corporations are exempt from liability for the negligent performance of
purely public governmental duties, unless made liable by statute.

A municipality corporation, which under permissive authority of its charter or of

statute, conducted a public Fourth of July celebration, including a display of
fireworks, and sent up a bomb intended to explode in the air, but which failed to
explode until it reached the ground, and then killed a spectator, was engaged in the
performance of a governmental duty. (99 A.R. 51)

This decision was concurred in by three Judges while two dissented.

At any rate the rationale of the Majority Opinion is evident from [this] excerpt:

July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a similar provision, the
different departments of the government recognize, and have recognized since the
government was established, July 4th as a national holiday. Throughout the country it
has been recognized and celebrated as such. These celebrations, calculated to entertain
and instruct the people generally and to arouse and stimulate patriotic sentiments and
love of country, frequently take the form of literary exercises consisting of patriotic
speeches and the reading of the Constitution, accompanied by a musical program
including patriotic air sometimes preceded by the firing of cannon and followed by
fireworks. That such celebrations are of advantage to the general public and their
promotion a proper subject of legislation can hardly be questioned. x x x

Surely, a town fiesta cannot compare to the National Centennial

Celebrations. The Centennial Celebrations was meant to commemorate the
birth of our nation after centuries of struggle against our former colonial master,
to memorialize the liberation of our people from oppression by a foreign
power. 1998 marked 100 years of independence and sovereignty as one united
nation. The Celebrations was an occasion to reflect upon our history and
reinvigorate our patriotism. As A.O. 223 put it, it was a vehicle for fostering
nationhood and a strong sense of Filipino identity, an opportunity to showcase
Filipino heritage and thereby strengthen Filipino values. The significance of the
Celebrations could not have been lost on petitioner, who remarked during the
hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to
rekindle the love for freedom, love for country, that is the over-all goal that has to
make everybody feel proud that he is a Filipino, proud of our history, proud of what
our forefather did in their time. x x x.

Clearly, the NCC performs sovereign functions. It is, therefore, a public

office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure
is of little consequence. A salary is a usual but not a necessary criterion for
determining the nature of the position. It is not conclusive. The salary is a mere
incident and forms no part of the office. Where a salary or fees is annexed, the
office is provided for it is a naked or honorary office, and is supposed to be
accepted merely for the public good. Hence, the office of petitioner as NCC
[23]

Chair may be characterized as an honorary office, as opposed to a lucrative

office or an office of profit, i.e., one to which salary, compensation or fees are
attached. But it is a public office, nonetheless.
[24]

Neither is the fact that the NCC was characterized by E.O. No. 128 as an
ad-hoc body make said commission less of a public office.

The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an
office. But, says Chief Justice Marshall, if a duty be a continuing one, which is
defined by rules prescribed by the government and not by contract, which an
individual is appointed by government to perform, who enters on the duties pertaining
to his station without any contract defining them, if those duties continue though the
person be changed, -- it seems very difficult to distinguish such a charge or
employment from an office of the person who performs the duties from an officer.

At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present it can make no difference, says Pearson,
C.J., whether there be but one act or a series of acts to be done, -- whether the office expires
as soon as the one act is done, or is to be held for years or during good behavior.[25]

Our conclusion that petitioner is a public officer finds support in In Re

Corliss. There the Supreme Court of Rhode Island ruled that the office of
[26]

Commissioner of the United States Centennial Commission is an office of trust

as to disqualify its holder as elector of the United States President and Vice-
President. (Under Article II of the United States Constitution, a person holding
an office of trust or profit under the United States is disqualified from being
appointed an elector.)
x x x. We think a Commissioner of the United States Centennial Commission holds an
office of trust under the United States, and that he is therefore disqualified for the
office of elector of President and Vice-President of the United States.

The commission was created under a statute of the United States approved March 3,
1871. That statute provides for the holding of an exhibition of American and foreign
arts, products, and manufactures, under the auspices of the government of the United
States, and for the constitution of a commission, to consist of more than one delegate
from each State and from each Territory of the United States, whose functions shall
continue until close of the exhibition, and whose duty it shall be to prepare and
superintend the execution of the plan for holding the exhibition. Under the statute the
commissioners are appointed by the President of the United States, on the nomination
of the governor of the States and Territories respectively. Various duties were
imposed upon the commission, and under the statute provision was to be made for it
to have exclusive control of the exhibit before the President should announce, by
proclamation, the date and place of opening and holding the exhibition. By an act of
Congress approved June 1st, 1872, the duties and functions of the commission were
further increased and defined. That act created a corporation, called The Centennial
Board of Finance, to cooperate with the commission and to raise and disburse the
funds.It was to be organized under the direction of the commission. The seventh
section of the act provides that the grounds for exhibition shall be prepared and the
buildings erected by the corporation, in accordance with plans which shall have been
adopted by the United States Centennial Commission; and the rules and regulations of
said corporation, governing rates for entrance and admission fees, or otherwise
affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be
fixed and established by the United States Centennial Commission; and no grant
conferring rights or privileges of any description connected with said grounds or
buildings, or relating to said exhibition or celebration, shall be made without the
consent of the United States Centennial Commission, and said commission shall have
power to control, change, or revoke all such grants, and shall appoint all judges and
examiners and award all premiums. The tenth section of the act provides that it shall
be the duty of the United States Centennial Commission to supervise the closing up of
the affairs of said corporation, to audit its accounts, and submit in a report to the
President of the United States the financial results of the centennial exhibition.

It is apparent from this statement, which is but partial, that the duties and functions of
the commission were various, delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of affairs; and that they
were not merely subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons performing such
duties and exercising such functions, in pursuance of statutory direction and authority,
are not to be regarded as mere employees, agents, or committee men, but that they are,
properly speaking, officers, and that the places which they hold are offices. It appears,
moreover, that they were originally regarded as officers by Congress; for the act under
which they were appointed declares, section 7, that no compensation for services shall
be paid to the commissioners or other officers, provided for in this act, from the
treasury of the United States. The only other officers provided for were the alternates
appointed to serve as commissioners when the commissioners were unable to attend.

Having arrived at the conclusion that the NCC performs executive functions
and is, therefore, a public office, we need no longer delve at length on the issue
of whether Expocorp is a private or a public corporation. Even assuming that
Expocorp is a private corporation, petitioners position as Chief Executive Officer
(CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently,
his acts or omissions as CEO of Expocorp must be viewed in the light of his
powers and functions as NCC Chair. [27]

Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public
officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt
Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said
law, which reads:

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:

xxx

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.

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

xxx
(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 Ombudsmans 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
[28]

of several laws that define public officers. Article 203 of the Revised Penal
Code, for example, provides that a public officer is:

x x x any person who, by direct provision of law, popular election or appointment by

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

Section 2 (14) of the Introductory Provisions of the Administrative Code of

1987, on the other hand, states:
[29]

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.

Which of these definitions should apply, if at all?

 Assuming that the definition of public officer in R.A. No. 3019 is exclusive,
the term compensation, which is not defined by said law, has many meanings.

Under particular circumstances, compensation has been held to include allowance for
personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling
expenses, payments for services, restitution or a balancing of accounts, salary, and
wages.[30]

How then is compensation, as the term is used in Section 2 (b) of R.A. No.
3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that
petitioner did not receive any salary, the records do not reveal if he received
any allowance, fee, honorarium, or some other form of compensation.Notably,
under the by-laws of Expocorp, the CEO is entitled to per diems and
compensation. Would such fact bear any significance?
[31]

Obviously, this proceeding is not the proper forum to settle these issues lest
we preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction
issued in the Courts Resolution dated September 24, 2001 is hereby LIFTED.
SO ORDERED.