Ex Officio Representatives Cannot Receive Honoraria: National Amnesty Commission v. COA

The Supreme Court's 2004 decision in National Amnesty Commission v. Commission on Audit clarifies a recurring question in Philippine administrative law: may the representatives of ex officio members receive additional compensation for attending meetings in their principals' stead? The Court answered with a firm no, holding that such payments violate the Constitution and existing statutes.

The Facts of the Case

The National Amnesty Commission (NAC) was created by Proclamation No. 347 in 1994 to receive, process, and review amnesty applications. It was composed of seven members: a Chairperson, three regular members appointed by the President, and three ex officio members — the Secretaries of Justice, National Defense, and Interior and Local Government.

After attending the initial meetings personally, the ex officio members designated representatives to attend on their behalf. Beginning December 12, 1994, these representatives were paid honoraria. On October 15, 1997, NAC Resident Auditor Ernesto C. Eulalia disallowed these payments totaling P255,750 for the period December 12, 1994 to June 27, 1997, citing COA Memorandum No. 97-038. The National Government Audit Office upheld the disallowance, and the Commission on Audit (COA) affirmed it in decisions dated July 26, 2001 and January 30, 2003.

The NAC argued that its new Implementing Rules and Regulations, Administrative Order No. 2 (approved in 1999), expressly allowed representatives to receive per diems, allowances, and other benefits. The NAC also contended that COA Memorandum No. 97-038 required publication under Article 2 of the Civil Code to be valid.

The Constitutional Prohibitions

The Court anchored its ruling on two constitutional provisions. First, Section 13, Article VII of the 1987 Constitution prohibits the President, Vice-President, members of the Cabinet, and their deputies or assistants from holding any other office or employment during their tenure unless otherwise provided in the Constitution itself.

Second, Section 7, paragraph 2, Article IX-B provides a blanket prohibition on all appointive officials from holding multiple government offices unless allowed by law or the primary functions of their positions.

In Civil Liberties Union v. Executive Secretary (G.R. No. 97441, 194 SCRA 317 [1991]), the Court had already ruled that cabinet secretaries and their subordinates may not hold other offices or receive additional compensation. The Court explained that ex officio positions are part of the principal office, and the official concerned has no right to receive additional compensation because their services are already paid for through their principal office.

Appointment versus Designation

The Court drew a crucial distinction between appointment and designation. An appointment is the selection by proper authority of an individual to exercise the powers and functions of a given office. A designation merely imposes additional duties upon a person already in public service by virtue of an earlier appointment.

Designation does not entitle the person to claim the salary attached to the position. Without an appointment, there is no legal basis to receive compensation. The representatives in this case were not appointed but merely designated by the ex officio members.

The Representative Cannot Have a Better Right Than the Principal

The Court emphasized that the agent, alternate, or representative cannot have a better right than the principal. Since the ex officio member is prohibited from receiving additional compensation for a position held in an ex officio capacity, the representative is likewise restricted. The laws, rules, and prohibitions covering the ex officio member apply with equal force to the representative.

The Court cited De la Cruz v. COA (371 SCRA 157 [2001]) and Bitonio v. COA (G.R. No. 147392, March 12, 2004), where it had similarly upheld COA disallowances of honoraria and per diems paid to officers sitting as ex officio members or alternates.

No Publication Requirement for Internal COA Rules

The NAC argued that COA Memorandum No. 97-038 was invalid for lack of publication. The Court disagreed. Under Tañada v. Tuvera (146 SCRA 446 [1986]), publication is required for statutes and administrative rules that enforce or implement existing law. However, interpretative regulations and internal rules regulating only the personnel of an administrative agency need not be published.

COA Memorandum No. 97-038 is merely an internal and interpretative regulation directing COA auditors to enforce the constitutional prohibition against double compensation. It does not, on its own, rule against or affect the rights of any individual except those covered by the Constitution.

The Validity of Administrative Order No. 2

The Court found that Section 1, Rule II of Administrative Order No. 2 was valid on its face because it expressly stated that representatives "shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law." The problem was not the order itself but how it was interpreted.

The administrative order merely allows ex officio members to designate representatives to attend meetings, not to decide for them. Section 4 of the order states that decisions require a majority vote in a meeting with a quorum of at least four members. Representatives may attend only as guests or witnesses; they cannot substitute for the ex officio members for purposes of quorum, deliberation, or decision-making.

No De Facto Officer Status

The NAC argued that the representatives were de facto officers entitled to emoluments. The Court rejected this. A de facto officer derives appointment from one having colorable authority to appoint. The representatives were not appointed but merely designated. Moreover, they could not claim good faith given the express constitutional prohibition and the finality of the Civil Liberties Union ruling before they received the allowances.

Practical Takeaways

• Representatives of ex officio members cannot receive honoraria, per diems, or any additional compensation for attending meetings in place of their principals.

• A designation is different from an appointment. Designation imposes additional duties but does not grant the right to receive additional compensation.

• The representative cannot have a better right than the principal. If the ex officio member is prohibited from receiving extra compensation, so is the representative.

• Internal and interpretative rules of the Commission on Audit do not require publication under Article 2 of the Civil Code to be valid and effective.

• Government funds paid erroneously may be disallowed and recovered. The government is not estopped by the mistake or error of its agents.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.