By serving as BSP head, did Binay violate law?

The Constitution prohibits the President and Vice President of the Republic from holding office other than what they were elected into.

Article VII, Sec. 13, states the President and members of his official family cannot hold multiple offices, except if the additional office is exercised in an ex-officio (from office; by virtue of office) capacity or, in the case of the Vice President, him holding a Cabinet post.

With Vice President Jejomar Binay’s reelection as president of the Boy Scouts of the Philippines (BSP), lawyers are divided whether the Vice President violated the Constitution.

Former University of the Philippines College of Law dean Pacifico Agabin defended Binay, saying there is no conflict of interest with Binay’s affiliation with the BSP.

But Martin Loon, who recently earned his master’s degree in National Security Laws from Georgetown University, argued Binay might have gone against the Constitution.

Jurisprudence supports the theory that Binay may have violated the Constitution: Funa vs. Ermita (GR No. 184740, Feb. 11, 2010) and Civil Liberties Union vs. the Executive Secretary (GR No. 83896, Feb. 22, 1991).

Loon said it could be “argued” Binay violated the Constitution because being BSP president was not an ex-officio function of the Vice President of the country.

He cited the case of the Civil Liberties Union vs. the Executive Secretary, a 1991 case that put into question the constitutionality of Executive Order No. 284.

In EO 284 issued in July 1987, then President Corazon Aquino allowed Cabinet secretaries, undersecretaries and assistant secretaries to hold any other office in government, including positions in government-owned and -controlled corporations (GOCCs).

The Supreme Court, however, said the order was unconstitutional. The court, then led by then Chief Justice Marcelo Fernan, said the 1987 Constitution prohibited the multiple offices of the President and his official family in response to the abuses during the Marcos dictatorship, when Cabinet ministers held other positions and received compensation for these posts.

It is not clear if Binay receives compensation as BSP president.

But even if he is not paid as BSP head, the Constitution says, “It is mandatory that the second post is required by the primary functions of the first appointment and is exercised in an ex-officio capacity,” Loon said.

In Funa vs. Ermita, the Supreme Court explained why the constitutional prohibitions on the President and his official family were “all-embracing” and why these were not imposed on other public officials and employees.

The tribunal said the “intent of the 1987 Constitution (is) to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.”

Quoting Vicente Foz of the 1986 Constitutional Commission, the high court said, “We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and . . . there is more possibility of abuse.”

In addition, the high court ruled in June 2011 that the BSP was a GOCC subject to state auditing and an agency attached to the Department of Education, and thus not stripped of its public character.

In his defense of Binay, Agabin cited Liban vs. Gordon and the Philippine National Red Cross (GR No. 175352, Jan. 18, 2011).

Even if the Supreme Court already ruled in 2011 that the BSP was a GOCC subject to state auditing, Agabin contended that the organization was a different GOCC.

It can be considered a government corporation under the term’s broad definition, but it has characteristics that set it apart from a state firm, Agabin said.

“But the BSP is not a financial or profit-making corporation like an ordinary GOCC,” he said.

That the BSP can enter into financial transactions is not an issue, as it is a charitable institution, Agabin said.

It can be headed by or can employ public officers, so long as they do not receive compensation because public officers are not supposed to receive double compensation.

“If the organization is a charitable or nonprofit organization, and if it serves a public purpose, then I believe that government officials can be appointed as officers of that corporation,” Agabin said.