863 Phil. 196; 116 OG No. 50, 8322 (December 14, 2020)
LAZARO-JAVIER, J.:
2. Resolution dated September 27, 2018, denying petitioners' motion for reconsideration.
- Decision[2] dated February 16, 2017 insofar as it affirmed the ruling of the COA-Corporate Government Sector (COA-CGS) with respect to the increases in the per diems paid to petitioners Amando M. Tetangco, Jr., Armando L. Suratos, and Juan D. De Zuñiga, Jr. and the grant to them of representation and transportation allowance (RATA) and other bonuses, in their capacity as members of the Board of Directors of the Philippine International Convention Center Inc. (PICCI). Its dispositive portion reads:
WHEREFORE, premises considered, the Petition for Review of Governor Amando M. Tetangco, Jr., et al., Bangko Sentral ng Pilipinas, Manila, of Commission on Audit on Corporate Government Sector-1 Decision No. 2014-01 dated April 30, 2014 is hereby PARTIALLY GRANTED. Accordingly, the payment of P1,000.00 per diem for every meeting in the total amount of P36,000.00 is LIFTED while the excess thereof in the total amount of P358,000.00, and the payment of representation allowances and other bonuses in the total amount of P224,500.00 disallowed under Notice of Disallowance (ND) No. 12-001-GF-(10&11) dated February 28, 2012 are AFFIRMED, broken down as follows:
NAME REPRESENTATION ALLOWANCES AND BONUSES PER DIEM TOTAL
RECEIVED ALLOWABLE
@P1,000.00/
MEETING EXCESS OF P1,000/ MEETING Amando M.
Tetangco, Jr. P155,000.00 P84,000.00 P10,000.00 P74,000.00 Armando L.
Suratos P51,112.90 P273,000.00 P22.000.00 P251,000.00
The sustained amount shall remain the liability of all persons named liable in the ND.
Compensation. Directors, as such, shall not receive any salary for their services but shall receive a per diem and allowances in such amounts as may be fixed by majority of all members of the board of directors in a regular or special meeting and approved by the Monetary Board. Nothing therein shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.Between December 7, 2006 and December 23, 2010, the following resolutions were also approved:
1. Amando M. Tetangco, Jr. P239,000.00The Audit Team concluded[12] that the benefits in question violated the rule against double compensation and E.O. No. 24.[13] For these benefits were given to petitioners in their capacity as ex-officio members of the PICCI Board, albeit they were already receiving salary from the BSP at the same time. The Audit Team further cited Section 8,[14] Art. IX (B) of the 1987 Constitution and the ratio decidendi in Civil Liberties Union v. Executive Secretary.[15]
2. Armando L. Suratos P324,112.90
3. Juan De Zunigo, Jr, P55,387.10
Total P618,500.00
a) | Petitioners never disputed that they (were) ex-officio members of PICCI and they received per diems, RATA, and bonuses in such capacity. Hence, Civil Liberties Union applied insofar as additional compensation (was) concerned vis-a-vis Sections 7 and 8 of Article IX-B of the 1987 Constitution applied to them. |
b) | Although P.D. No. 520 designated petitioners as ex-officio members of PICCI Board of Directors, the same law did not provide that they shall be entitled to additional compensation. The grant of additional compensation to them was based only on the PICCI By-Laws which (was) by itself cannot be considered to have sufficiently authorized the grant of the benefit in question. Additional compensation may be given only when specifically authorized by law, not by mere PICCI by laws. |
c) | Singson resolved the issue of whether the grant of RATA constituted double compensation. Singson clarified that although the grant of RATA was permissible the same should not equate to indirect compensation. Also, to be valid, the grant of RATA should be supported by evidence, such as receipts, invoices, or such relevant documents showing that the amount was really used to defray expenses deemed unavoidable in petitioners' discharge of their office in PICCI. |
d) | Petitioners cannot be deemed in good faith when they received the additional compensation by way of RATA. It cannot bar the government either from recovering what was unduly given them, otherwise, it would constitute unjust enrichment. |
WHEREFORE, premises considered, the Petition for Review of Governor Amando M. Tetangco, Jr., et al., Bangko Sentral ng Pilipinas, Manila, of Commission on Audit on Corporate Government Sector-1 Decision No. 2014-01 dated Arpil 30, 2014 is hereby PARTIALLY GRANTED. Accordingly, the payment of P1,000.00 per diem for every meeting in the total amount of P36,000.00 is LIFTED while the excess thereof in the total amount of P358,000.00, and the payment of representation allowances and other bonuses in the total amount of P224,500.00 disallowed under Notice of Disallowance (ND) No. 12-001-GF-(10&11) dated February 28, 2012 are AFFIRMED, broken down as follows:
NAME REPRESENTATION
ALLOWANCES
AND BONUSES PER DIEM TOTAL
RECEIVED ALLOWABLE
@P 1,000.00/
MEETING EXCESS OF
P1,000
/MEETING Amando M.
Tetangco, Jr. P155,000.00 P84,000.00 P10,000.00 P74,000.00 Armando L.
Suratos P51,112.90 P273,000.00 P22,000.00 P251,000.00 Juan De Zuniga P18,387.10 P37,000.00 P4.000.00 P33,000.00 TOTAL P224,500.00 P394.000.00 P36,000.00 P358,000.00
The sustained amount shall remain the liability of all persons named liable in the ND.[26]
Section 2. In order for the International Conference Center to enjoy autonomy of operation, separate and distinct from that of the Central bank, the latter is hereby authorized to organize a corporation to be known as the Manila International Conference Center which will manage and operate the former, the capital of which shall be fully subscribed by the Central Bank.
The governing powers and authority of the corporation shall be vested in, and exercised by, a Board of Directors composed of the Central Bank Governor as Chairman, the Senior Deputy as Vice Chairman, and five other members to be designated by the Monetary Board.xxx xxx xxx
(13) government-owned or controlled corporations refer to any agency organized as a stock or non-stock corporation vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or indirectly through its instrumentalities either wholly, or where applicable as in the case of stock corporations to the extent of at least 51% of its capital stock.Verily, a corporation is a government-owned or controlled corporation when the government directly or indirectly owns or controls at least a majority or 51% share of the capital stock. A government-owned or controlled corporation is either a "parent" corporation, i.e., one "created by special law" (Sec. 3 (a), PD 2029) or a "subsidiary" corporation, i.e., one created pursuant to law where at least a majority of the outstanding voting capital stock is owned by the parent government corporation and/or other government-owned subsidiaries.[29]
The PICCI is not an originally chartered corporation, but a subsidiary corporation of BSP organized in accordance with the Corporation Code of the Philippines. The Articles of Incorporation of PICCI was registered on July 29, 1976 in the Securities and Exchange Commission. As such, PICCI does not fall within the coverage of NCC No. 67. As a matter of fact, by virtue of P.D. [No.] 520, PICCI is exempt from the coverage of the civil service law and regulations (and Constitution defining coverage of civil service as limited to those with original [charter] (TUCP v. NHA, G.R. No. 49677, May 4, 1989, Article IX-B, Sec. 1). Certainly, if PICCI is not part of the National Government, but a mere subsidiary of a government-owned and/or controlled corporation (BSP), its officers, and more importantly, its directors, are not covered by the term "national government officials and employees" to which NCC No. 67 finds application.Unquestionably, PICCI is a GOCC. Perforce, it is subject to the review and/audit of the COA.
xxx xxx xxx
Thus, although the grant of per diems finds legal basis in Section 30 of the Corporation Code of the Philippines, only the amount of P1,000.00 for every meeting shall be allowed pursuant to the ruling of the Supreme Court in the Singson case, and pursuant to the suspension of the grant of new increased benefit under MO No. 20.
As to the payment of Representation Allowance and Travel Allowance (RATA), this Commission finds that its grant does not violate the provision against double compensation under Section 8, Article IX-B of the 1987 Constitution,xxx xxx xxx
However, as pointed out in the above-cited case, although there is no double compensation, the By-Laws of PICCI authorized only the payment of per diem to the members of its Board of Directors, and no other compensation. Thus, the payment of representation allowances and bonuses is still in violation of Section 8, IX-B of the 1987 Constitution, as there is no law authorizing its payment.
xxx xxx xxxApplying Singson here, we rule that like the grant of per diems, the payment of RATA to petitioners Tetangco, Suratos and De Zuñiga does not violate the constitutional proscription against double compensation.
Taking NCC No. 67 as a whole then, what it seeks to prevent is the dual collection of RATA by a national official from the budgets of "more than one national agency." We emphasize that the other source referred to in the prohibition is another national agency. This can be gleaned from the fact that the sentence "no one shall be allowed to collect RATA from more than one source" (the controversial prohibition) immediately follows the sentence that RATA shall be paid from the budget of the national agency where the concerned national officials and employees draw their salaries. The fact that the other source is another national agency is supported by RA 7645 (the GAA of 1993) invoked by respondent COA itself and, in fact, by all subsequent GAAs for that matter, because the GAAs all essentially provide that (1) the RATA of national officials shall be payable from the budgets of their respective national agencies and (2) those officials on detail with other national agencies shall be paid their RATA only from the budget of their parent national agency:xxx xxx xxx
Clearly therefore, the prohibition in NCC No. 67 is only against the dual or multiple collection of RATA by a national official from the budgets of two or more national agencies. Stated otherwise, when a national official is on detail with another national agency, he should get his RATA only from his parent national agency and not from the other national agency he is detailed to.19 (Italics supplied.)
Moreover, Section 6 of Republic Act No. 7653 (The New Central Bank Act) defines that the powers and functions of the BSP shall be exercised by the BSP Monetary Board, which is composed of seven (7) members appointed by the President of the Philippines for a term of six (6) years. MB Resolution No. 15,20 dated January 5, 1994, as amended by MB Resolution No. 34, dated January 12, 1994, are valid corporate acts of petitioners that became the bases for granting them additional monthly RATA of P1,500.00, as members of the Board of Directors of PICCI. The RATA is distinct from salary (as a form of compensation). Unlike salary which is paid for services rendered, the RATA is a form of allowance intended to defray expenses deemed unavoidable in the discharge of office. Hence, the RATA is paid only to certain officials who, by the nature of their offices, incur representation and transportation expenses.21 Indeed, aside from the RATA that they have been receiving from the BSP, the grant of P1,500.00 RATA to each of the petitioners for every board meeting they attended, in their capacity as members of the Board of Directors of PICCI, in addition to their P1,000.00 per diem, does not run afoul the constitutional proscription against double compensation.
xxx xxx xxx
The Court upholds the findings of respondent that petitioners' right to compensation as members of the PICCI Board of Directors is limited only to per diem of P1,000.00 for every meeting attended, by virtue of the PICCI By-Laws. In the same vein, we also clarify that there has been no double compensation despite the fact that, apart from the RATA they have been receiving from the BSP, petitioners have been granted the RATA of P1,500.00 for every board meeting they attended, in their capacity as members of the Board of Directors of PICCI, pursuant to MB Resolution No. 1523 dated January 5, 1994, as amended by MB Resolution No. 34 dated January 12, 1994, of the Bangko Sentral ng Pilipinas. In this regard, we take into consideration the good faith of petitioners.
Sec. 30. Compensation of Directors, - In the absence of any provision in the by-laws fixing their compensation, the directors shall not receive any compensation, as such directors, except for reasonable per diems; Provided, however, that any such compensation (other than per diems) may be granted to directors by the vote of the stockholders representing at least a majority of the outstanding capital stock at a regular or special stockholders' meeting. In no case shall the total yearly compensation of directors, as such directors, exceed ten (10%) percent of the net income before income tax of the corporation during the preceding year.
Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions or gratuities shall not be considered as additional, double, or indirect compensation.
SECTION 1. Immediately suspend the grant of any salary increases and new or increased benefits such as, but not limited to, allowances; incentives; reimbursement of expenses; intelligence, confidential or discretionary funds; extraordinary expenses, and such other benefits not in accordance with those granted under SSL. This suspension shall cover senior officer level positions, including Members of the Board of Directors or Trustees.Memorandum Order No. 20 aims to rationalize or harmonize the compensation and benefits of senior officers in the government both in the GOCCs and National Government. Its Whereas Clause provides:
WHEREAS, the study revealed a much superior pay package in GOCCs, GFIs and subsidiaries exempted from the SSL, such that officers in these entities receive at least twice what comparable positions receive in NGAs, and some heads of said entities even exceed the average salary of their counterpart positions in the private sector in the Philippines and in the ASEAN Region;In fine, the proscribed increases under Memorandum Order No. 20 refer only to those in excess of the benefits given to government officials holding comparable positions in the National Government. On this score, the amounts of RATA and per diems granted to officials of the National Government for 2010 were those specified under RA 9770 or the General Appropriations Act of 2010, viz:
WHEREAS, Section 5, Article IX-B of the 1997 Constitution provides for the standardization of compensation of government officials and employees including those in GOCCs with original charters taking into account the nature of the responsibilities pertaining to and the qualifications required for their positions;
WHEREAS, in line therewith there is a need to harmonize the pay practices in these entities and place them at a level comparable to positions in NGAs to preclude dichotomy in the bureaucracy brought about by the severe pay imbalance between personnel of these special entities and the rest of the bureaucracy following the SSL;
Sec. 47. Representation and Transportation Allowances. The following officials of National Government Agencies, whil in the actual performance of their respective functions, are hereby authorized monthly commutable representation and transportation allowances payable from the programmed appropriations provided for their respective offices at rates indicated below, which shall apply to each type of allowance at:Here, the COA disapproved the grant of per diems and RATA increases to its ex officio members, without at all considering the foregoing guidelines. As it was, the COA issued a bulk disallowance of the increases, sans any determination whether the same were indeed in excess of the amounts received by petitioners' counterparts in the National Government. Surely, Memorandum Order No. 20 intends to rationalize the benefits of the government employees, not to discriminate GOCCs.
(a) P11,000 for Department Secretaries;
(b) P8,700 for Department Undersecretaries;
(c) P7,800 for Department Assistant Secretaries;
(d) P7,000 for Bureau Directors and Department Regional Directors;
(e) P6,500 for Assistant Bureau Directors, Department Assistant Regional Directors Bureau Regional Directors, and Department Service Chiefs;
(f) P5,500 for Assistant Bureau Regional Directors; and
(g) P4,000 for Chief of Divisions, identified as such in the Personal Services Itemization and Plantilla of Personnel.
The determination of those that are of equivalent ranks with the above cited officials in the government shall be made by the DBM.
xxx xxx xxx
Sec. 49. Honoraria. The respective agency appropriations for honoraria shall only be paid to the following:(a) Teaching personnel of the DepEd, TESDA, SUCs and other educational institutions, engaged in actual classroom teaching, whose teaching load is outside of the regular office hours or in excess of the regular load;The grant of honoraria to the foregoing shall be subject to the guidelines prescribed under Budget Circular No. 2003-5, as amended by Budget Circular No. 2007-1 and National Budget Circular No. 2007-510, Budget Circular No. 2007-2, and other guidelines issued by the DBM.
(b) Those who act as lecturers, resource persons, coordinators and facilitators in seminars, training programs, and other similar activities in training institutions, including those conducted by entities for their officials and employees wherein no seminar fees are collected from participants;
(c) Chairs and members of commissions, boards, councils, and other similar entities, including the personnel thereof who are not paid salaries nor per diems but compensated in the form of honoraria as provided by law, rules and regulations;
Section 5. The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions.Executive Order No. 24[38]
Statutes are generally applied prospectively unless they expressly allow a retroactive application. It is well known that the principle that a new law shall not have retroactive effect only governs rights arising from acts done under the rule of the former law. However, if a right be declared for the first time by a subsequent law, it shall take effect from that time even though it has arisen from acts subject to the former laws, provided that it does not prejudice another acquired right of the same origin.Since Executive Order No. 24 does not provide for its retroactive application, the same may not be applied for the purpose of deauthorizing the grant of benefits prior to its effectivity. At most, it may serve as guidelines to acts done upon its effectivity onward.
Moreover, Section 6 of Republic Act No. 7653 (The New Central Bank Act) defines that the powers and functions of the BSP shall be exercised by the BSP Monetary Board, which is composed of seven (7) members appointed by the President of the Philippines for a term of six (6) years. MB Resolution No. 15, dated January 5, 1994, as amended by MB Resolution No. 34, dated January 12, 1994, are valid corporate acts of petitioners that became the bases for granting them additional monthly RATA of P1,500.00, as members of the Board of Directors of PICCI. The RATA is distinct from salary (as a form of compensation). Unlike salary which is paid for services rendered, the RATA is a form of allowance intended to defray expenses deemed unavoidable in the discharge of office. Hence, the RATA is paid only to certain officials who, by the nature of their offices, incur representation and transportation expenses. Indeed, aside from the RATA that they have been receiving from the BSP, the grant of P1,500.00 RATA to each of the petitioners for every board meeting they attended, in their capacity as members of the Board of Directors of PICCI, in addition to their P1,000.00 per diem, does not run afoul the constitutional proscription against double compensation.[41]ACCORDINGLY, the petition for certiorari is GRANTED. Save for the explicit recognition of the Commission on Audit of petitioners' entitlement to per diems, the Decision[42] dated February 16, 2017 and Resolution dated September 27, 2018 of the Commission on Audit are NULLIFIED.
The Supreme Court in this case declared that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor.[16] Except for Disbursement Voucher (DV) 2010-11-92 dated November 10, 2010, DV 2010-11-07 to 108 dated November 25, 2010 and DV 2010-12-09 to 020 dated March 12, 2010.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office.