BITONIO v.

COA  After a post audit of the PEZA's disbursement transactions, the

March 12, 2004 | Callejo Sr., J. | COA disallowed the payment of per diems to the petitioner,
Digester: Valena, Maria Patricia issuing three notices of disallowance stating a common reason
for disallowance:
SUMMARY: The petitioner was designated as the DOLE “Cabinet members, their deputies and assistants holding other offices
Secretary’s representative to the PEZA Board of Directors, and in addition to their primary office and to receive compensation
received per diems for attending meetings. When COA later therefore was declared unconstitutional by the Supreme Court in the
Civil Liberties Union vs. Executive Secretary. Disallowance is in
disallowed the disbursements for his per diems, he challenged the
pursuance to COA Memorandum No. 97-038 dated September 19,
disallowance through a petition under Rule 64 before the Supreme 1997 implementing Senate Committee Report No. 509.”
Court. The Court upheld the disallowance, saying that he served  The COA denied petitioner’s MR.
on the Board position in an ex officio capacity and was thus not
entitled to per diems. RULING: IN LIGHT OF THE FOREGOING, the petition is
DOCTRINE: The ex-officio position being actually and in legal DISMISSED. The assailed decision of the COA is AFFIRMED.
contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his Whether the COA correctly disallowed the per diems
services in the said position. received by the petitioner for his attendance in the PEZA
Board of Directors' meetings as representative of the
FACTS: Secretary of Labor - YES.
 1994: Petitioner Benedicto Ernesto R. Bitonio, Jr. was  Pursuant to the Court's ruling in CLU v Executive Secretary
appointed Director IV of the Bureau of Labor Relations in the and the Senate Committee Report on the Accountability of
DOLE. Public Officers and Investigations (Blue Ribbon), the COA
 1995: Acting Secretary Jose S. Brilliantes of the Department of issued Memorandum No. 97-0382 which authorized the
Labor and Employment designated the petitioner to be the issuance of the Notices of Disallowances for the per diems
DOLE representative to the Board of Directors of PEZA, received by the petitioner.
pursuant to Section 11 of Republic Act No. 7916.1  PETITIONER: he is entitled to the payment of per diems, as
 As representative of the Secretary of Labor to the PEZA, the R.A. No. 7916 specifically and categorically provides for the
petitioner received a per diem for every board meeting he payment of a per diem for the attendance of the members of
attended during the years 1995 to 1997.
2
“The Commission received a copy of Senate Committee Report No. 509 urging
1
Section 11. The Philippine Economic Zone Authority (PEZA) Board. — There is “the Commission on Audit to immediately cause the disallowance of any payment of
hereby created a body corporate to be known as the Philippine Economic Zone any form of additional compensation or remuneration to cabinet secretaries, their
Authority (PEZA) . . . deputies and assistants, or their representatives in violation of the rule on multiple
xxx xxx xxx positions and to effect the refund of any and all such additional compensation given
The Board shall be composed of the Director General as ex oficio chairman with to and received by the officials concerned, or their representatives, from the time
eight (8) members as follows: the Secretaries or their representatives of the of the finality of the Supreme Court ruling in Civil Liberties Union vs. Executive
Department of Trade and Industry, the Department of Finance, the Department of Secretary to the present.” In the Civil Liberties Union case, the Supreme Court
Labor and Employment, the Department of [the] Interior and Local Government, ruled that Cabinet Secretaries, their deputies and assistants may not hold any other
the National Economic and Development Authority, and the Bangko Sentral ng office or employment. It declared Executive Order No. 284 unconstitutional insofar
Pilipinas, one (1) representative from the labor sector, and one (1) representative as it allows Cabinet members, their deputies and assistants to hold other offices in
from the investor/business sector in the ECOZONE. addition to their primary office and to receive compensation therefor. The said
xxx xxx xxx decision became final and executory on August 19, 1991.
Members of the Board shall receive a per diem of not less than the amount In view thereof, all unit heads/auditors/team leaders of the national government
equivalent to the representation and transportation allowances of the members of agencies and government-owned or controlled corporations which have effected
the Board and/or as may be determined by the Department of Budget and payment of subject allowances are directed to implement the recommendation
Management: Provided, however, That the per diem collected per month does not contained in the subject Senate Committee Report by undertaking the following
exceed the equivalent of four (4) meetings. audit action: . . . “
 the Board of Directors at board meetings of PEZA. This law is Board to have a better right than his principal. As the
presumed to be valid; unless and until the law is declared representative of the Secretary of Labor, the petitioner sat in
unconstitutional, it remains in effect and binding for all intents the Board in the same capacity as his principal.
and purposes. Neither can this law be rendered nugatory on  Re second argument: No merit. It is a basic tenet that any
the basis of a mere memorandum circular. R.A. No. 7916 is a legislative enactment must not be repugnant to the highest law
statute superior to an administrative directive and the former of the land which is the Constitution. No law can render
cannot just be repealed or amended by the latter. nugatory the Constitution because the Constitution is more
 PETITIONER: R.A. No. 7916 was enacted 4 years after the case superior to a statute. If a law happens to infringe upon or
of Civil Liberties Union was promulgated. It is, therefore, violate the fundamental law, courts of justice may step in to
assumed that the legislature, before enacting a law, was aware nullify its effectiveness.
of the prior holdings of the courts. Since the constitutionality  The framers of R.A. No. 7916 must have realized the 􏰀flaw in
or the validity of R.A. No. 7916 was never challenged, the the law which is the reason the law was later amended by R.A.
provision on the payment of per diems remains in force No. 8748. The members of the Board of Directors was
notwithstanding the Civil Liberties Union case. Nonetheless, increased from 8 to 13, specifying therein that it is the
the petitioner's position as Director IV is not included in the undersecretaries of the different Departments who should sit
enumeration of officials prohibited to receive additional as board members of the PEZA. The option of designating his
compensation as clarified in the Resolution of the Court dated representative to the Board by the different Cabinet
August 1, 1991; thus, he is still entitled to receive the per Secretaries was deleted. Likewise, the last paragraph as to the
diems. payment of per diems to the members of the Board of Directors
 COURT: Petitioner's presence in the PEZA Board meetings is was also deleted, considering that such stipulation was clearly
solely by virtue of his capacity as representative of the in conflict with the proscription set by the Constitution.
Secretary of Labor. As the petitioner himself admitted, there 
was no separate or special appointment for such position.
Since the Secretary of Labor is prohibited from receiving
compensation for his additional office or employment, such
prohibition likewise applies to the petitioner who sat in the
Board only in behalf of the Secretary of Labor.
 This case stands on all fours with the case of Dela Cruz v.
Commission on Audit. The Court upheld the COA in disallowing
the payment of honoraria and per diems to the officers
concerned who sat as members of the Board of Directors of the
National Housing Authority. The officers concerned sat as
alternates of their superiors in an ex oficio capacity.
“The ex-oficio 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 [...] Since the Executive Department Secretaries, as ex-oficio
members of the NHA Board, are prohibited from receiving "extra
(additional) compensation, whether it be in the form of a per diem or
an honorarium or an allowance, or some other such euphemism," it
follows that petitioners who sit as their alternates cannot likewise be
entitled to receive such compensation. A contrary rule would give
petitioners a better right than their principals.”
 Similarly in the case at bar, we cannot allow the petitioner who
sat as representative of the Secretary of Labor in the PEZA