Petitioners Liban, et al.

, who were officers of the Board of Directors of the Quezon City Red
Cross Chapter, filed with the Supreme Court what they styled as Petition to Declare Richard J.
Gordon as Having Forfeited His Seat in the Senate against respondent Gordon, who was elected
Chairman of the Philippine National Red Cross (PNRC) Board of Governors during his incumbency
as Senator.

Petitioners alleged that by accepting the chairmanship of the PNRC Board of Governors,
respondent Gordon ceased to be a member of the Senate pursuant to Sec. 13, Article VI of the
Constitution, which provides that [n]o Senator . . . may hold any other office or employment in the
Government, or any subdivision, agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries, during his term without forfeiting his seat. Petitioners
cited the case of Camporedondo vs. NLRC, G.R. No. 129049, decided August 6, 1999, which
held that the PNRC is a GOCC, in supporting their argument that respondent Gordon automatically
forfeited his seat in the Senate when he accepted and held the position of Chairman of the PNRC
Board of Governors.

Formerly, in its Decision dated July 15, 2009, the Court, voting 7-5,[1] held that the office of
the PNRC Chairman is NOT a government office or an office in a GOCC for purposes of the
prohibition in Sec. 13, Article VI of the 1987 Constitution. The PNRC Chairman is elected by the
PNRC Board of Governors; he is not appointed by the President or by any subordinate government
official. Moreover, the PNRC is NOT a GOCC because it is a privately-owned, privately-funded, and
privately-run charitable organization and because it is controlled by a Board of Governors four-fifths
of which are private sector individuals. Therefore, respondent Gordon did not forfeit his legislative
seat when he was elected as PNRC Chairman during his incumbency as Senator.

The Court however held further that the PNRC Charter, R.A. 95, as amended by PD 1264
and 1643, is void insofar as it creates the PNRC as a private corporation since Section 7, Article XIV
of the 1935 Constitution states that [t]he Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such corporations are owned or
controlled by the Government or any subdivision or instrumentality thereof. The Court thus directed
the PNRC to incorporate under the Corporation Code and register with the Securities and Exchange
Commission if it wants to be a private corporation. The fallo of the Decision read:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is
not a government office or an office in a government-owned or controlled corporation for purposes of the
prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5,
6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95,
as amended by Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a
private corporation or grant it corporate powers.

Respondent Gordon filed a Motion for Clarification and/or for Reconsideration of

the Decision. The PNRC likewise moved to intervene and filed its own Motion for Partial
Reconsideration. They basically questioned the second part of the Decision with regard to the
pronouncement on the nature of the PNRC and the constitutionality of some provisions of the
PNRC Charter.

II. THE ISSUE

Was it correct for the Court to have passed upon and decided on the issue of the
constitutionality of the PNRC charter? Corollarily: What is the nature of the PNRC?
III. THE RULING

[The Court GRANTED reconsideration and MODIFIED the dispositive portion of the Decision
by deleting the second sentence thereof.]

NO, it was not correct for the Court to have decided on the constitutional issue
because it was not the very lis mota of the case. The PNRC is sui generis in nature; it is
neither strictly a GOCC nor a private corporation.

The issue of constitutionality of R.A. No. 95 was not raised by the parties, and was not
among the issues defined in the body of the Decision; thus, it was not the very lis mota of the
case. We have reiterated the rule as to when the Court will consider the issue of constitutionality
in Alvarez v. PICOP Resources, Inc., thus:

This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It is a well-
established rule that a court should not pass upon a constitutional question and decide a law to be
unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the
record also presents some other ground upon which the court may [rest] its judgment, that course will be
adopted and the constitutional question will be left for consideration until such question will be
unavoidable.

[T]his Court should not have declared void certain sections of . . . the PNRC
Charter. Instead, the Court should have exercised judicial restraint on this matter, especially since
there was some other ground upon which the Court could have based its judgment. Furthermore,
the PNRC, the entity most adversely affected by this declaration of unconstitutionality, which was not
even originally a party to this case, was being compelled, as a consequence of the Decision, to
suddenly reorganize and incorporate under the Corporation Code, after more than sixty (60) years
of existence in this country.

Since its enactment, the PNRC Charter was amended several times, particularly on June 11,
1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue of R.A. No. 855, R.A.
No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of several laws relating to
the PNRCs corporate existence notwithstanding the effectivity of the constitutional proscription on
the creation of private corporations by law is a recognition that the PNRC is not strictly in the nature
of a private corporation contemplated by the aforesaid constitutional ban.

A closer look at the nature of the PNRC would show that there is none like it[,] not just in
terms of structure, but also in terms of history, public service and official status accorded to it by the
State and the international community. There is merit in PNRCs contention that its structure is sui
generis. It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained
valid and effective from the time of its enactment in March 22, 1947 under the 1935 Constitution and
during the effectivity of the 1973 Constitution and the 1987 Constitution. The PNRC Charter and its
amendatory laws have not been questioned or challenged on constitutional grounds, not even in this
case before the Court now.

[T]his Court [must] recognize the countrys adherence to the Geneva Convention and respect
the unique status of the PNRC in consonance with its treaty obligations. The Geneva Convention
has the force and effect of law. Under the Constitution, the Philippines adopts the generally accepted
principles of international law as part of the law of the land. This constitutional provision must be
reconciled and harmonized with Article XII, Section 16 of the Constitution, instead of using the latter
to negate the former. By requiring the PNRC to organize under the Corporation Code just like any
other private corporation, the Decision of July 15, 2009 lost sight of the PNRCs special status under
international humanitarian law and as an auxiliary of the State, designated to assist it in discharging
its obligations under the Geneva Conventions.

The PNRC, as a National Society of the International Red Cross and Red Crescent
Movement, can neither be classified as an instrumentality of the State, so as not to lose its
character of neutrality as well as its independence, nor strictly as a private corporation since it is
regulated by international humanitarian law and is treated as an auxiliary of the State.

Although [the PNRC] is neither a subdivision, agency, or instrumentality of the government,

nor a GOCC or a subsidiary thereof . . . so much so that respondent, under the Decision, was
correctly allowed to hold his position as Chairman thereof concurrently while he served as a
Senator, such a conclusion does not ipso facto imply that the PNRC is a private corporation within
the contemplation of the provision of the Constitution, that must be organized under the Corporation
Code. [T]he sui generis character of PNRC requires us to approach controversies involving the
PNRC on a case-to-case basis.

In sum, the PNRC enjoys a special status as an important ally and auxiliary of the
government in the humanitarian field in accordance with its commitments under international
law. This Court cannot all of a sudden refuse to recognize its existence, especially since the issue of
the constitutionality of the PNRC Charter was never raised by the parties. It bears emphasizing that
the PNRC has responded to almost all national disasters since 1947, and is widely known to provide
a substantial portion of the countrys blood requirements. Its humanitarian work is unparalleled. The
Court should not shake its existence to the core in an untimely and drastic manner that would not
only have negative consequences to those who depend on it in times of disaster and armed
hostilities but also have adverse effects on the image of the Philippines in the international
community. The sections of the PNRC Charter that were declared void must therefore stay.

[Thus, R.A. No. 95 remains valid and constitutional in its entirety. The Court MODIFIED the
dispositive portion of the Decision by deleting the second sentence, to now read as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is
not a government office or an office in a government-owned or controlled corporation for purposes of the
prohibition in Section 13, Article VI of the 1987 Constitution .]