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FIRST DIVISION xxxx

G.R. No. 138965 June 30, 2006 Section 7. No elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure.
PUBLIC INTEREST CENTER INC., LAUREANO T. ANGELES, and JOCELYN P.
CELESTINO, Petitioners, Unless otherwise allowed by law or by the primary functions of his position, no appointive
vs. official shall hold any other office or employment in the Government or any subdivision,
MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the agency or instrumentality thereof, including government-owned or controlled corporations or
Presidential Commission on Good Government, and RONALDO ZAMORA, as Executive their subsidiaries.
Secretary, Respondents
To harmonize these two provisions, this Court, in the case of Civil Liberties Union v.
DECISION Executive Secretary,11 construed the prohibition against multiple offices contained in
Section 7, Article IX-B and Section 13, Article VII in this manner:
CHICO-NAZARIO, J.:
[T]hus, while all other appointive officials in the civil service are allowed to hold other office
This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer for or employment in the government during their tenure when such is allowed by law or by the
Temporary Restraining Order/Writ of Preliminary Injunction filed on 30 June 1999.1 This primary functions of their positions, members of the Cabinet, their deputies and assistants
action seeks to declare as null and void the concurrent appointments of respondent may do so only when expressly authorized by the Constitution itself. In other words, Section
Magdangal B. Elma as Chairman of the Presidential Commission on Good Government 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive
(PCGG) and as Chief Presidential Legal Counsel (CPLC) for being contrary to Section 13,2 public officials and employees, while Section 13, Article VII is meant to be the exception
Article VII and Section 7, par. 2,3 Article IX-B of the 1987 Constitution. In addition, the applicable only to the President, the Vice-President, Members of the Cabinet, their deputies
petitioners further seek the issuance of the extraordinary writs of prohibition and mandamus, and assistants.
as well as a temporary restraining order to enjoin respondent Elma from holding and
discharging the duties of both positions and from receiving any salaries, compensation or The general rule contained in Article IX-B of the 1987 Constitution permits an appointive
benefits from such positions during the pendency of this petition.4 Respondent Ronaldo official to hold more than one office only if "allowed by law or by the primary functions of
Zamora was sued in his official capacity as Executive Secretary. his position." In the case of Quimson v. Ozaeta,12 this Court ruled that, "[t]here is no legal
objection to a government official occupying two government offices and performing the
On 30 October 1998, respondent Elma was appointed and took his oath of office as Chairman functions of both as long as there is no incompatibility." The crucial test in determining
of the PCGG. Thereafter, on 11 January 1999, during his tenure as PCGG Chairman, whether incompatibility exists between two offices was laid out in People v. Green13 -
respondent Elma was appointed CPLC. He took his oath of office as CPLC the following whether one office is subordinate to the other, in the sense that one office has the right to
day, but he waived any remuneration that he may receive as CPLC.5 interfere with the other.

Petitioners cited the case of Civil Liberties Union v. Executive Secretary6 to support their [I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x
position that respondent Elma’s concurrent appointments as PCGG Chairman and CPLC Where one office is not subordinate to the other, nor the relations of the one to the other such
contravenes Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 as are inconsistent and repugnant, there is not that incompatibility from which the law
Constitution. Petitioners also maintained that respondent Elma was holding incompatible declares that the acceptance of the one is the vacation of the other. The force of the word, in
offices. its application to this matter is, that from the nature and relations to each other, of the two
places, they ought not to be held by the same person, from the contrariety and antagonism
Citing the Resolution7 in Civil Liberties Union v. Executive Secretary, respondents allege which would result in the attempt by one person to faithfully and impartially discharge the
that the strict prohibition against holding multiple positions provided under Section 13, duties of one, toward the incumbent of the other. x x x The offices must subordinate, one
Article VII of the 1987 Constitution applies only to heads of executive departments, their [over] the other, and they must, per se, have the right to interfere, one with the other, before
undersecretaries and assistant secretaries; it does not cover other public officials given the they are incompatible at common law. x x x
rank of Secretary, Undersecretary, or Assistant Secretary.
In this case, an incompatibility exists between the positions of the PCGG Chairman and the
Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that CPLC. The duties of the CPLC include giving independent and impartial legal advice on the
should be applied in their case. This provision, according to the respondents, would allow a actions of the heads of various executive departments and agencies and to review
public officer to hold multiple positions if (1) the law allows the concurrent appointment of investigations involving heads of executive departments and agencies, as well as other
the said official; and (2) the primary functions of either position allows such concurrent Presidential appointees. The PCGG is, without question, an agency under the Executive
appointment. Respondents also alleged that since there exists a close relation between the Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC.
two positions and there is no incompatibility between them, the primary functions of either In Memorandum Order No. 152, issued on 9 July 2004, the Office of the President, in an
position would allow respondent Elma’s concurrent appointments to both positions. effort to promote efficiency and effective coordination, clearly delineated and specified the
Respondents further add that the appointment of the CPLC among incumbent public officials functions and duties of its senior officers as such:
is an accepted practice.
SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise and provide the
The resolution of this case had already been overtaken by supervening events. In 2001, the President with legal assistance on matters requiring her action, including matters pertaining
appointees of former President Joseph Estrada were replaced by the appointees of the to legislation.
incumbent president, Gloria Macapagal Arroyo. The present PCGG Chairman is Camilo
Sabio, while the position vacated by the last CPLC, now Solicitor General Antonio Nachura, The CPLC shall have the following duties and functions:
has not yet been filled. There no longer exists an actual controversy that needs to be resolved.
However, this case raises a significant legal question as yet unresolved - whether the PCGG a. Exercise administrative supervision over the Office of the CPLC;
Chairman can concurrently hold the position of CPLC. The resolution of this question
requires the exercise of the Court’s judicial power, more specifically its exclusive and final b. Review and/or draft legal orders referred to her by the President on the following matters
authority to interpret laws. Moreover, the likelihood that the same substantive issue raised in that are subject of decisions of the President;
this case will be raised again compels this Court to resolve it.8 The rule is that courts will
decide a question otherwise moot and academic if it is "capable of repetition, yet evading 1. Executive Orders, proclamations, administrative orders, memorandum orders, and other
review."9 legal documents initiated by the President;

Supervening events, whether intended or accidental, cannot prevent the Court from rendering 2. Decision on investigation involving Cabinet Secretaries, agency heads, or Presidential
a decision if there is a grave violation of the Constitution. Even in cases where supervening appointees with the rank of Secretary conducted by the Presidential Anti-Graft Commission
events had made the cases moot, this Court did not hesitate to resolve the legal or (PAGC);14
constitutional issues raised to formulate controlling principles to guide the bench, bar, and
public.10 As CPLC, respondent Elma will be required to give his legal opinion on his own actions as
PCGG Chairman and review any investigation conducted by the Presidential Anti-Graft
The merits of this case may now be discussed. Commission, which may involve himself as PCGG Chairman. In such cases, questions on his
impartiality will inevitably be raised. This is the situation that the law seeks to avoid in
The issue in this case is whether the position of the PCGG Chairman or that of the CPLC imposing the prohibition against holding incompatible offices.
falls under the prohibition against multiple offices imposed by Section 13, Article VII and
Section 7, par. 2, Article IX-B of the 1987 Constitution, which provide that: Having thus ruled that Section 7, Article IX-B of the 1987 Constitution enjoins the
concurrent appointments of respondent Elma as PCGG Chairman and CPLC inasmuch as
Art. VII . they are incompatible offices, this Court will proceed to determine whether such
appointments violate the other constitutional provision regarding multiple offices, Section 13,
xxxx Article VII of the 1987 Constitution.

Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and
assistants shall not, unless otherwise provided in this Constitution, hold any other office or appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet
employment during their tenure. x x x secretaries, undersecretaries and assistant secretaries. In the Resolution in Civil Liberties
Union v. Executive Secretary,15 this Court already clarified the scope of the prohibition
Art. IX-B. provided in Section 13, Article VII of the 1987 Constitution. Citing the case of US v.
Mouat16 , it specifically identified the persons who are affected by this prohibition as
secretaries, undersecretaries and assistant secretaries; and categorically excluded public ATTESTATION
officers who merely have the rank of secretary, undersecretary or assistant secretary.
I attest that the conclusions in the above Decision were reached in consultation before the
Another point of clarification raised by the Solicitor General refers to the persons affected by case was assigned to the writer of the opinion of the Court’s Division.
the constitutional prohibition. The persons cited in the constitutional provision are the
"Members of the Cabinet, their deputies and assistants." These terms must be given their CONSUELO YNARES-SANTIAGO
common and general acceptation as referring to the heads of the executive departments, their Associate Justice
undersecretaries and assistant secretaries. Public officials given the rank equivalent to a Acting Chairman, First Division
Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is
the Solicitor General affected thereby. (Underscoring supplied.) CERTIFICATION

It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman’s
1987 Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of Attestation, it is hereby certified that the conclusions in the above Decision were reached in
them is a secretary, undersecretary, nor an assistant secretary, even if the former may have consultation before the case was assigned to the writer of the opinion of the Court’s Division.
the same rank as the latter positions.
REYNATO S. PUNO
It must be emphasized, however, that despite the non-applicability of Section 13, Article VII Acting Chief Justice
of the 1987 Constitution to respondent Elma, he remains covered by the general prohibition
under Section 7, Article IX-B and his appointments must still comply with the standard of
compatibility of officers laid down therein; failing which, his appointments are hereby Footnotes
pronounced in violation of the Constitution.
1 Rollo, p. 3.
Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is
applicable to the present case, the defect in respondent Elma’s concurrent appointments to the 2 Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
incompatible offices of the PCGG Chairman and the CPLC would even be magnified when assistants shall not, unless otherwise provided in this Constitution, hold any other office or
seen through the more stringent requirements imposed by the said constitutional provision. In employment during their tenure. x x x.
the aforecited case Civil Liberties Union v. Executive Secretary,17 the Court stressed that the
language of Section 13, Article VII is a definite and unequivocal negation of the privilege of 3 Sec. 7. x x x
holding multiple offices or employment. The Court cautiously allowed only two exceptions
to the rule against multiple offices: (1) those provided for under the Constitution, such as Unless otherwise allowed by law or by the primary functions of his position, no appointive
Section 3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or official shall hold any other office or employment in the Government or any subdivision,
(2) posts occupied by the Executive officials specified in Section 13, Article VII without agency or instrumentality thereof, including government-owned or controlled corporations or
additional compensation in an ex-officio capacity as provided by law and as required by the their subsidiaries.
primary functions of said officials’ office. The Court further qualified that additional duties
must not only be closely related to, but must be required by the official’s primary functions. 4 Rollo, p. 9.
Moreover, the additional post must be exercised in an ex-officio capacity, which "denotes an
act done in an official character, or as a consequence of office, and without any other 5 Id. at 4 and 17.
appointment or authority than that conferred by the office."18 Thus, it will not suffice that no
additional compensation shall be received by virtue of the second appointment, it is 6 G.R. Nos. 83896 and 83815, 22 February 1991, 194 SCRA 317.
mandatory that the second post is required by the primary functions of the first appointment
and is exercised in an ex-officio capacity. 7 G.R. Nos. 83896 and 83815, 1 August 1991.

With its forgoing qualifications, it is evident that even Section 13, Article VII does not 8 Resolution in Freedom from Debt Coalition v. Energy Regulatory Commission, G.R. No.
sanction this dual appointment. Appointment to the position of PCGG Chairman is not 161113, 9 August 2005.
required by the primary functions of the CPLC, and vice versa. The primary functions of the
PCGG Chairman involve the recovery of ill-gotten wealth accumulated by former President 9 Gayo v. Verceles, G.R. No. 150477, 28 February 2005, 452 SCRA 504, 514; Viola v. Hon.
Ferdinand E. Marcos, his family and associates, the investigation of graft and corruption Alunan III, 343 Phil. 184, 191 (1997).
cases assigned to him by the President, and the adoption of measures to prevent the
occurrence of corruption.19 On the other hand, the primary functions of the CPLC 10 Province of Batangas v. Romulo, G.R. No. 152774, 27 May 2004, 429 SCRA 736, 757;
encompass a different matter, that is, the review and/or drafting of legal orders referred to Chavez v. Public Estates Authority, 433 Phil. 506, 522 (2002).
him by the President.20 And while respondent Elma did not receive additional compensation
in connection with his position as CPLC, he did not act as either CPLC or PGCC Chairman 11 Supra note 6 at 329.
in an ex-officio capacity. The fact that a separate appointment had to be made for respondent
Elma to qualify as CPLC negates the premise that he is acting in an ex-officio capacity. 12 98 Phil. 705, 709 (1956).

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to 13 People v. Green, 13 Sickels 295, 58 N.Y. 295, 1874 WL 11282 (N.Y.).
respondent Elma since neither the PCGG Chairman nor the CPLC is a Cabinet secretary,
undersecretary, or assistant secretary. Even if this Court assumes, arguendo, that Section 13, 14 Memorandum Order No. 152, 9 July 2004.
Article VII is applicable to respondent Elma, he still could not be appointed concurrently to
the offices of the PCGG Chairman and CPLC because neither office was occupied by him in 15 Supra note 6.
an ex-officio capacity, and the primary functions of one office do not require an appointment
to the other post. Moreover, even if the appointments in question are not covered by Section 16 124 US 303 (1888).
13, Article VII of the 1987 Constitution, said appointments are still prohibited under Section
7, Article IX-B, which covers all appointive and elective officials, due to the incompatibility 17 Supra note 6.
between the primary functions of the offices of the PCGG Chairman and the CPLC.
18 Supra note 6 at 333.
WHEREFORE, premises considered, this Court partly GRANTS this petition and declares
respondent Magdangal B. Elma’s concurrent appointments as PCGG Chairman and CPLC as 19 Executive Order No. 1, 28 February 1986.
unconstitutional. No costs.
20 Supra note 14.
SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

(On Official Leave)


ARTEMIO V. PANGANIBAN
Chief Justice
Chairman

CONSUELO YNARES-SANTIAGO
Associate Justice
Acting Chairman MA. ALICIA AUSTRIA-MARTINEZ
Asscociate Justice
ROMEO J. CALLEJO, SR.
Associate Justice