FACTS:

Petitioner National Amnesty Commission (NAC) is a government agency composed of seven members: a Chairperson, three regular members appointed by the President, and the Secretaries of Justice, National Defense and Interior and Local Government as ex officio members.

It appears that after personally attending the initial NAC meetings, the three ex officio members turned over said responsibility to their representatives who were paid honoraria. The payment of honoraria to these representatives was disallowed in audit pursuant to COA Memorandum No. 97-038 dated September 19, 1997.

Petitioner invoked Administrative Order No. 2, approved by President Estrada, which authorized the ex officio members to designate their representatives to the Commission and are entitled to per diems, allowances, bonuses and other benefits as may be authorized by law.

ISSUES:

COA committed grave abuse of discretion in:

1. implementing COA Memorandum No. 97-038 without the required notice and publication under Article 2 of the Civil Code;

2. invoking paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the disallowance of honoraria under said Memorandum;

3. applying the Memorandum to the NAC ex officio members’ representatives who were all appointive officials with ranks below that of an Assistant Secretary;

4. interpreting laws and rules outside of its mandate and declaring Section 1, Rule II of Administrative Order No. 2 null and void; and

5. disallowing the payment of honoraria on the ground of lack of authority of representatives to attend the NAC meetings in behalf of the ex officio members.

RULINGS:

The COA is correct that there is no legal basis to grant per diem, honoraria or any allowance whatsoever to the NAC ex officio members’ official representatives.

COA Memorandum No. 97-038 does not, in any manner or on its own, rule against or affect the right of any individual, except those provided for under the Constitution. It is merely an internal and interpretation or letter of instruction. It is not an implementing rule or regulation of a statute but a directive issued by the COA to its auditors. Hence, publication of said Memorandum is not required for it to be valid, effective and enforceable.

In Civil Liberties Union, we elucidated on the two constitutional prohibition against holding multiple positions in the government and receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees against holding multiple government offices, unless otherwise allowed by law or the primary functions of their positions, and (2) the stricter prohibition under Section 13, Article VII on the President and his official family from holding any other office, profession, business or financial interest, whether government or private, unless allowed by the Constitution.

The NAC ex officio members’ representatives who were all appointive officials with ranks below Assistant Secretary are covered by the two constitutional prohibitions.

In declaring Section 1, Rule II of Administrative Order No. 2 series of 1999 null and void, the Supreme Court (SC) ruled that, on its face, it is valid. The problem lies not in the administrative order but how the NAC and the COA interpreted it. The administrative order itself acknowledges that payment of allowances to the representatives must be authorized by the law, that is, the Constitution, statutes and judicial decisions. However, the payment of such allowances is not allowed, prohibited even by the Constitution.

The SC disagreed with NAC’s position that the representatives are de facto officers and as such are entitled to allowances. The representatives cannot be considered de facto officers because they were not appointed but were merely designated to act as such. Furthermore, they are not entitled to something their own principals are prohibited from receiving.

Neither can they claim good faith, given the express prohibition of the Constitution and the finality of SC’s decision in Civil Liberties Union prior to their receipt of such allowances.