CONSTI1 & ADMIN: Gov’t

Boy Scouts of the Philippines v. COA

2 Instrumentality w/in COA
GR NO.177131. June 7, 2011 Leonardo de-Castro Capistrano,Ong
Petitioners: Respondents:
BOY SCOUTS OF THE PHILIPPINES COMMISSION ON AUDIT
[“BSP”]
Recit Ready Summary

COA issued a resolution declaring that iBSP, as a government-controlled corporation and a government
instrumentality, falls within its constitutionally-mandated audit powers. BSP argued that it was not a
GOCC because RA 7278 virtually eliminated substantial governmental participation and control in the
board. Thus, it is beyond COA’s audit jurisdiction.

The issue in this case is whether or not the BSP is a public corporation which is subject to COA’s
audit jurisdiction (YES).

The Court said that since the BSP was created by law to serve a public purpose. The BSP Charter
created BSP as a public corporation and the Administrative Code declared BSP as an attached
agency to the Department of Education, Culture, and Sports (DECS). SEC. 38. (3) of the Code
provides for the definition of the Administrative Relationship of Attachment as the lateral relationship
between the department and the attached agency for purposes of policy and program
coordination. The coordination may be accomplished through the following:
a. having the department represented in the governing board of the attached
agency or corporation, either as chairman or as a member, with or without voting
rights, if this is permitted by the charter;
b. having the attached corporation or agency comply with a system of periodic
reporting which shall reflect the progress of programs and projects; and
c. having the department or its equivalent provide general policies through its
representative in the board, which shall serve as the framework for the internal
policies of the attached corporation or agency.

As an attached agency, the BSP enjoys operational autonomy, as long as policy and program
coordination is achieved by having at least 1 representative of government in its governing board. In the
case of the BSP, it’s the DECS Secretary. In this sense, the BSP is not under the government control;
but, this characteristic does not make the attached chartered agency a private corporation.

These laws recognize its public character as a public corporation. Despite the amendments to its
Charter, it remains a public corporation or government agency or instrumentality and thus, is subject to
COA’s audit jurisdiction.

HOWEVER, the dissenting opinion of Justice Carpio provides that BSP is neither a government-owned or
controlled corporation nor a government instrumentality subject to the COA’s jurisdiction. If the BSP is a
GOCC, then it must be under the President’s power of control. Justice Carpio agreed with the BSP that
since RA 7278 drastically changed the structure and composition of the National Executive Board of the
BSP, the government has lost effective control over the BSP. The absence of any form of presidential
control reinforces the fact that the government does not control the BSP.

Facts

1. COA issued Resolution No. 99-011 on "Defining the Commission's policy with respect to the
audit of the Boy Scouts of the Philippines." It stated that:
o That the BSP was created as a public corporation under Commonwealth Act No. 111,
as amended by PD No. 460 and RA 7278
o That in BSP v. NLRC, the Supreme Court ruled that the BSP was
- A government-controlled corporation (within the meaning of Art. IX-B (2) of the

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 Constitution)
- A government instrumentality (under the 1987 Admin Code)
o COA has the jurisdiction to conduct said audit pursuant to Sec. 2(1) of Art. IX-D of the
Constitution.
▪ BSP moved for reconsideration but they were denied by respondent. The following are the
parties’ contentions:

Contentions

Boy Scouts COA

it IS NOT subject to the Commission’s audit BSP subject to its audit jurisdiction, for the
jurisdiction, for the following reasons: following reasons:

▪ RA 7278 virtually eliminated the substantial ▪ The BSP is a public corporation under its
government participation in the same by Charter; the manner of creation and purpose
removing: (i.e., “to foster public virtues of citizenship and
(i) the President of the Philippines and patriotism and the general improvement of the
executive secretaries, with the exception of moral spirit and fiber of our youth”) for which it
the Secretary of Education, as members was created prove that it is a government
thereof; and agency.
(ii) the appointment and confirmation power
of the President of the Philippines, as Chief ▪ RA 7278 did not change the character of the
Scout, over the members of the said Board. BSP as a government owned or controlled
(iii) provision that “all other members of the corporation and instrumentality.
governing board xxx were made subject to the
ratification and confirmation of the President of ▪ That as an attached agency of the DECS, the
the Philippines” was removed. BSP is an agency of the government

▪ Private nature of its funds and assets; its ▪ Being a government agency, the funds and
operations are not in any way financed by the property owned or held by the BSP are subject
government as it has never been included in to the audit authority of COA pursuant to Sec.
any appropriations act for the government nor 2 (1) of Art. IX-D of the Consti.
has the gov’t invested funds with BSP.

Issues Ruling
1. Whether the BSP is a public corporation that falls under the COA's audit 1. YES
jurisdiction
Rationale
1. Whether the BSP is a public corporation that falls under the COA's audit jurisdiction – YES

The COA's Jurisdiction

§2. (1) Article IX-D of the Constitution provides that the Commission on Audit shall have the power,
authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the
a. Government, or any of its
b. subdivisions,
c. agencies, or
d. instrumentalities,
e. including government-owned and controlled corporations with original charters,

In this case, the Court ruled that BSP falls under the COA's audit jurisdiction because it is a Publicc
Corporation or Government Instrumentality.

BSP is a public corporation.

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 ▪ The BSP is a public corporation under the Civil Code (Par. 2 of Art. 44). It falls under one of the
classifications of juridical persons: “other corporations, institutions, and entities for public interest
or purpose created by law”…
➔ It was created by a special law to serve a public purpose in pursuit of a constitutional mandate
(i.e., to implement a State policy declared in Art. II, Sec. 13 of the Constitution)

▪BSP Charter created the BSP as a “public corporation.”

▪Under the Administrative Code, it is classified as an “attached agency” of the Department of
Education, Culture, and Sports (DECS).
▪ SEC. 38. (3) provides for the definition of Administrative Relationship of Attachment
➔ as the lateral relationship between the department and the attached agency for purposes
of policy and program coordination. The coordination may be accomplished through the following:
d. having the department represented in the governing board of the attached
agency or corporation, either as chairman or as a member, with or without voting
rights, if this is permitted by the charter;
e. having the attached corporation or agency comply with a system of periodic
reporting which shall reflect the progress of programs and projects; and
f. having the department or its equivalent provide general policies through its
representative in the board, which shall serve as the framework for the internal
policies of the attached corporation or agency.
➔ As an attached agency, the BSP enjoys operational autonomy, as long as policy and program
coordination is achieved by having at least 1 representative of government in its governing board. In the
case of the BSP, it’s the DECS Secretary. In this sense, the BSP is not under the government control;
but, this characteristic does not make the attached chartered agency a private corporation.

- The Court said that, notwithstanding the amendments to its charter, it is a public corporation or a
government agency or instrumentality with juridical personality.

- It is not government owned or controlled. It is also not a private corporation. It belongs to another distinct
class of corporations or chartered institutions called “public corporations” which are created by law as
agencies or instrumentalities of the government.

The public, rather than private, character of the BSP is recognized by the fact that, along with the Girl
Scouts of the Philippines, it is classified as an attached agency of the DECS.

Disposition

The instant petition for prohibition is DISMISSED.

CARPIO’S DISSENT (from Consti1 Digest)

● The BSP is neither a government-owned or controlled corporation nor a government

instrumentality subject to the COA’s jurisdiction. The BSP is a private, non-stock, non-prof
corporation.
● COA relies on the Court’s ruling in BSP v. NLRC which declared the BSP both a GOCC and a
government instrumentality based on three criteria:
o BSP’s functions as set out in its statutory charter – That BSP’s functions do have
a public aspect.
o BSP’s governance – that there is substantial governmental (i.e., PRESIDENTIAL)
participation or intervention in the choice of the majority of the members of the BSP
National Executive Board (its composition includes 7 Secretaries of Executive
Departments including the President of the Philippines).

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 o Character of BSP’s assets and funds – original assets were acquired by
purchase/gift/other equitable arrangement with the Boy Scouts of America
- And the Court be like: “In this respect, the BSP appears similar to private non-
stock, non-profit corporations, although its charter expressly envisages donations and
contributions to it from the Government and any of its agencies and
instrumentalities.”
● With the enactment of RA 7278 (note: this was enacted after the BSP v. NLRC case), one ONE
Cabinet Secretary (i.e., Secretary of Education), remains a member of the BSP’s National
Executive Board. Prior the amendment, the President of the Philippines and 6 Cabinet
Secretaries were among the members of such Board. The leadership of the BSP was virtually
under the Office of the President.
● The BSP is not a GOCC. (Carpio then used the following tests, as outlined below)
1. Control tests
a. Gov’t does not own the BSP
- A GOCC must be owned or controlled by the gov’t; for non-stock
corporations, at least a majority of the members must be government officials holding
such membership by appointment or designation by the government.
- BSP is a non-stock and non-profit organization composed almost entirely
of members coming from the private sector.

b. Gov’t does not control the BSP

- Aside from what was already mentioned, prior to RA 7278, the
appointment of “all other members of the governing board xxx were made subject to
the ratification and confirmation of the President of the Philippines”
- With RA 7278, the government lost effective control over the BSP to the
private sector. The structural set-up and membership of the governing body under
the RA, where all except one come from the private sector, negate any form of
government control.
- If the BSP is a GOCC, then it must be under the President’s power of
control.
- In this case, there is absolutely nothing which demonstrates that
the President of the Philippines exercises control over the acts or decisions of
the BSP's National Executive Board or any of its members. The President does
not have the power to alter or modify or nullify or set aside what the BSP's
National Executive Board does in the performance of its duties and to
substitute the judgment of the former for that of the latter/ This absence of any
form of presidential control reinforces the fact that the government does not
control the BSP.
- In short, the President, while holding the title of "Chief Scout," does not
control the BSP.
c. The funds of the BSP are private in nature
- No public capital was invested in the BSP.
- The BSP does not have government assets and does not receive any
appropriation from Congress.
d. The public purpose of BSP is NOT determinative of status
- Although BSP performs functions which may be public in character, this
fact alone does not automatically make the BSP a GOCC.

2. Economic viability test

- That the Constitution recognizes only 2 class of corporations
● Private corporations created under a general law
● Government-owned or controlled corporations created by special charters
- That the BSP can only either be a private corporation or a GOCC, in accordance with
Sec. 16, Art. XII of the Constitution. Introducing a totally different species of
corporation which is neither of the 2 would be contrary to such constitutional
provision. The effect would be: such new class of public corporation created by

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 special charter will not be subject to the test of economic viability, a blatant
circumvention of the Consti.
● Neither is the BSP a government instrumentality
- BSP is not an agency of the National Govt because it is not a unit of the National
Govt like a department, bureau, office, instrumentality or GOCC, etc.
- BSP does not administer special funds of the govt
- The determining factor of COA’s audit jurisdiction is government ownership or
control, which was lost with the enactment of RA 7278.
- However, the majority [of the Court] states that the BSP is “not under government
control” although it is an attached agency to DepEd, and any agency or unit attached
to it is under the control of the President pursuant to Sec. 17, Art VII of the Consti. If
a government office, unit, or instrumentality is subject to the control of the President,
then it is obviously under government control.
● The BSP is a private, non-stock and non-profit corporation performing public functions.
- Senate deliberations on RA 7278 reveal the intent of the legislature to restore the
non-governmental and private character of the BSP.
- RA 7278 was enacted precisely to remove government control and return the BSP to
the private sector and to its non-governmental status.
● Re: constitutionality of BSP charter, as amended
- Considering that the BSP is not a GOCC, it follows that the law creating and
regulating the BSP clearly violates Section 16, Article XII of the Constitution.