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ELECTION LAWS OF THE PHILIPPINES

  This web page contains the full text of
OPINION NO. 8, S. 2001
Dated 14 February 2001
DOJ OPINION ON WHETHER OR NOT CABINET MEMBERS MAY ENGAGE IN PARTISAN POLITICAL ACTIVITIES.
 
CABINET MEMBERS MAY ENGAGE IN PARTISAN POLITICAL ACTIVITIES.
 
Republic of the Philippines
Department of Justice
City of Manila, Metropolitan Manila
 
 
OPINION NO. 8, S. 2001
Dated 14 February 2001
 
 
TO : HON. RENATO S. DE VILLA, EXECUTIVE SECRETARY AND HON. AVELINO J. CRUZ, JR., PRESIDENTIAL LEGAL ADVISER, OFFICE OF THE PRESIDENT, MALACANANG, MANILA
 
FROM : ACTING SECRETARY

Sirs:chanroblesvirtuallawlibrary

This refers to your request for opinion on whether or not Cabinet Members can engage in partisan political activity.

It appears that the query is being raised in view of the provision of the Constitution and related provisions of pertinent laws prohibiting officers and employees in the civil service from engaging in electioneering or partisan political activity. These provisions, respectively, provide, as follows:chanroblesvirtuallawlibrary

1987 Constitution (Article IX-B)

    "Sec. 2. x x x

    "(4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign."

    "Sec. 55. Political Activity. - No officer or employee in the civil service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates prohibited in the Election Code." (Chap. 8, Subtitle A, Title I, Book V; see also identical provision of Section 45, P.D. No. 807 [Civil Service Law]; emphasis supplied ).
    "Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:

    "x x x

    "(1) Intervention of public officers and employees. - Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote to preserve public order, if he is a peace officer." (Emphasis supplied) .

The abovequoted Constitutional provision prohibits any officer employee in the civil service from engaging in electioneering or partisan political campaign.

On the other hand, the provisions of the Administrative Code of 1987 and the Omnibus Election Code, also abovequoted, expressly exclude civil service officers or employees who hold political offices from the prohibition against engaging in any election campaign or partisan political activity.

Cabinet Members are not covered by the Constitutional prohibition against electioneering or partisan political activity because they hold political offices.  Cabinet Members serve at the behest and pleasure of the President.  As such, their positions are essentially political. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 edition, p. 919, citing Santos v. Yatco, G.R. No. L-16133, November 6, 1959) .

In Santos vs. Yatco (supra) , the Supreme Court held:chanroblesvirtuallawlibrary

    "x x x considering that respondent Alejo Santos is Secretary of National Defense and head of the Department of National Defense, with power of control and supervision over the armed forces; considering that the position of Secretary of National Defense is not embraced and included within the term "officers and employees in the civil service" (as disclosed in the proceedings in the Constitutional Convention wherein the attempt of Delegate Mumar to include the heads of executive departments within the civil service was rejected) x x x considering that respondent in campaigning for Governor Tomas Martin, candidate of the Nacionalista Party in the Province of Bulacan, was acting as member of the Cabinet in discussing the issues before the electorate and defending the actuations of the Administration to which he belongs; the Court hereby x x x sets aside the order of the Honorable Nicasio Yatco, Judge of the Court of First Instance of Rizal, prohibiting respondent Alejo Santos from campaigning personally or in his official capacity."
The above quoted provisions of the Constitution and Civil Service law have also been the subject of a clarificatory memorandum of the Civil Service Commission. In its Memorandum Circular No. 02, s.1992, the Commission stated:chanroblesvirtuallawlibrary
    "The aforequoted constitutional and legal provisions prohibit government officials and employees from engaging in any electioneering or in partisan political activities or campaign.chanrobles virtual law library
    "x x x

    "x x x x  for practical reasons and in view of the nature of their positions and responsibility, the aforementioned inhibitions shall not be made to apply to government officials holding political offices, such as:
     

      1.  The President of the Philippines;
      2.  The Vice President of the Philippines;
      3.  The Executive Secretary/Department Secretaries and other Members of the Cabinet;
      4.  All other elective officials at all levels; and
      5.  Those in the personal and confidential staff of the above officials."
Based on the foregoing, it is believed that Cabinet Members are not covered by the prohibition on electioneering or partisan political activity.

However, "it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code." (see Sec. 55, E.O. No. 292, supra ).
Very truly yours,
 
 
(Sgd.) HERNANDO B. PEREZ
Acting Secretary
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