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Public Officers and Election Law Bea, Alexis Elaine

Prof. Ma. Gisella Dizon-Reyes 2014-89344

Antecedent Facts Which Led to the Controversy


In 2016, the UP Board of Regents, pursuant to its mandate1, elected UP College of Law Dean
Danilo L. Concepcion (“Dean Concepcion”) to be the college’s 21st President, with a term of six (6)
years.2 Dean Concepcion officially assumed said office last 10 February 2017.

Up until now, a new Dean for the UP College of Law has not been appointed. As such, Dean
Concepcion currently holds his former position concurrently with his new one. The issue of whether
or not Dean Concepcion can legally hold both positions as President of the University of the
Philippines and a Dean of one of its colleges has been the subject of much controversy among the
community.

This paper holds that, according to our current law and jurisprudence, there is a legal
impediment for Dean Concepcion to hold both positions concurrently. However, he may do so until
a qualified successor is appointed.

Constitutional Prohibition
Art. IX-B Sec. 7(2) of the 1987 Constitution prohibits appointive officials from holding dual
positions, to wit:

Section 7. No elective official shall be eligible for appointment or designation in any


capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no


appointive official shall hold any other office or employment in the Government or

1Republic Act 9500


2“Danilo Concepcion steps in as 21st UP president,” UNIVERSITY OF THE PHILIPPINES, https://www.up.edu.ph/ind
ex.php/danilo-concepcion-steps-in-as-21st-up-president/
any subdivision, agency or instrumentality thereof, including Government-owned or
controlled corporations or their subsidiaries.

Thus, the general rule is that no appointive official shall hold any other office or employment
in Government. However, the Constitution provides for only two exceptions: (1) if such is allowed
by law; or (2) if allowed by the primary functions of his position.

As to the first exception, the charter creating the University of the Philippines, Republic Act
No. 9500 (“RA 9500”) is silent regarding the matter. Absent any proof to the contrary, the first
exception does not apply.

As to the second exception, an appointive official is allowed to hold multiple offices when
allowed by the primary functions of his position or if he holds it in an ex-officio capacity. Regarding
this matter, the cases of Flores v. Drilon3 (“Flores”) and Public Interest Center v. Elma4 (“PIC”) may be
instructive.

The Rule as Enunciated by Flores v. Drilon

Flores laid down the rule in holding that the appointment of then Olongapo City Mayor Richard
Gordon as as Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority is
invalid because of the prohibition provided in Art. IX-B, Sec. 7 of the 1987 Constitution. While Flores
may not be on all fours with the current issue, Gordon was an elective official and Dean Concepcion
is an appointive official, the rule still holds that:

“[The prohibition]…does not comprehend additional duties and functions required


by the primary functions of the officials concerned, who are to perform them in an
ex officio capacity as provided by law, without receiving any additional
compensation therefor.”

3 GR No. 104732. (1993).


4 GR No. 138965. (2006).
May the President of the University hold the position of the Dean in an ex-officio capacity?
The answer is no.

According to Section 1.3.2 of the UP Faculty Manual:


“The President. Leadership in the University of the Philippines is vested in the
President who is the Chief Executive Officer of the University. S/He is ex officio
head of the University of the Philippines System faculty and the Vice-Chair of the
Board of Regents. S/He is also ex officio member of the University Council of each
autonomous unit and presides over its meetings whenever present.”

A rule on statutory construction states: expression unius est exclusion alterius, the express mention
of one person, thing, or consequence implies the exclusion of all others. Where a statute, by its terms,
is expressly limited to certain matters, it may not, by interpretation or construction, be extended to
others. The rule proceeds from the premise that the legislature would not have made specified
enumerations in a statute had the intention been not to restrict its meaning and to confine its terms
to those expressly mentioned. The above-mentioned section clearly states the adjunct or ex-officio
positions that come with the position of the President of the University. It cannot be extended to
include the position of a Dean of a college.

Therefore, following the ruling in Flores, this case does not fall within the second exception
under the 1987 Constitution.

Doctrine Laid Down by Public Interest Center v. Elma


PIC reiterated the general rule contained in Article IX-B of the 1987 Constitution which
permits an appointive official to hold more than one office only if “allowed by law or by the primary
functions of his position.” It went on further to state that:

“There is no legal objection to a government official occupying two government


offices and performing the functions of both as long as there is no
incompatibility…The crucial test in determining whether incompatibility exists
between two offices: Whether one office is subordinate to the other, in the sense
that one office has the right to interfere with the other. Incompatibility between
two offices, is an inconsistency in the functions of the two; Where one office is not
subordinate to the other, nor the relations of the one to the other such as are
inconsistent and repugnant, there is not that incompatibility from which the law
declares that the acceptance of the one is the vacation of the other. The force of
the word is that from the nature and relations to each other, of the two places, they
ought not to be held by the same person, from the contrariety and antagonism
which would result in the attempt by one person to faithfully and impartially
discharge the duties of one, toward the incumbent of the other. The offices must
subordinate, one over the other, and they must, per se, have the right to
interfere, one with the other, before they are incompatible at common law.”
(Emphasis supplied)

As can be seen under the UP Faculty Manual where it illustrates the organizational structure
of the University, the office of the Dean is directly under the office of the Chancellor—which is
directly under the office of the UP President. If allowed to continue, the UP President will be both
superior and subordinate to the Chancellor and himself. This is an absurd situation. Following the
doctrine of PIC, the positions of UP President and Dean of the UP College of Law are incompatible
positions.

Whether or Not the Position is Held in a Holdover Capacity


As earlier stated, there has neither been an appointment of a new Dean for the UP College of
Law or a re-appointment of Dean Concepcion. There are two possibilities as to the manner in which
the position of Dean is held: (1) Dean Concepcion currently holds the position pursuant to his original
appointment as his original term has not yet expired; or (2) He currently holds the position in a
holdover capacity.

RA 9500, the charter creating the University of the Philippines, is silent as to how long the
term of a Dean should be. However, the UP Faculty Manual, published in 1989, states that the term
of the Dean shall be for three (3) years, without prejudice to being re-appointed to a second term.
There has also been no news of any action or process within the college that a new dean may be
appointed. Thus, it may be presumed Dean Concepcion holds his position in a holdover position.
Whether or Not the Position is Held in a Holdover Capacity
However, as earlier stated, there has neither been an appointment of a new Dean for the UP
College of Law or a re-appointment of Dean Concepcion. There are two possibilities as to the manner
in which the position of Dean is held: (1) Dean Concepcion currently holds the position pursuant to
his original appointment as his original term has not yet expired; or (2) He currently holds the position
in a holdover capacity.

RA 9500, the charter creating the University of the Philippines, is silent as to how long the
term of a Dean should be. However, the UP Faculty Manual, published in 1989, states that the term
of the Dean shall be for three (3) years, without prejudice to being re-appointed to a second term.
There has also been no news of any action or process within the college that a new dean may be
appointed. Thus, it may be presumed Dean Concepcion holds his position in a holdover position.

The law abhors a vacuum—and reasonably so. A vacancy would only constitute to prejudice
the administration of the UP College of Law. Until a qualified successor is appointed, Dean
Concepcion remains in office in a holdover capacity.