FIRST DIVISION

PUBLIC INTEREST CENTER G. R. No. 138965

INC., LAUREANO T.
ANGELES, and JOCELYN P.
CELESTINO,
Petitioners, Present:

PANGANIBAN, CJ, *
- versus - Chairman,
YNARES-SANTIAGO, **
AUSTRIA-MARTINEZ,
MAGDANGAL B. ELMA, as CALLEJO, SR., and
Chief Presidential Legal CHICO-NAZARIO, JJ.
Counsel and as Chairman of the
Presidential Commission on
Good Government, and
RONALDO ZAMORA, as Promulgated:
Executive Secretary,
Respondents. June 30, 2006
x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

This is an original action for Certiorari, Prohibition, and Mandamus, with a

Prayer for Temporary Restraining Order/Writ of Preliminary Injunction filed on 30
June 1999.[1] This action seeks to declare as null and void the concurrent
appointments of respondent Magdangal B. Elma as Chairman of the Presidential
Commission on Good Government (PCGG) and as Chief Presidential Legal
Counsel (CPLC) for being contrary to Section 13,[2] Article VII and Section 7, par.
2,[3] Article IX-B of the 1987 Constitution. In addition, the petitioners further seek
the issuance of the extraordinary writs of prohibition and mandamus, 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 benefits from such positions during the pendency of this
petition.[4]Respondent Ronaldo Zamora was sued in his official capacity as
Executive Secretary.

On 30 October 1998, respondent Elma was appointed and took his oath of
office as Chairman of the PCGG. Thereafter, on 11 January 1999, during his tenure
as PCGG Chairman, respondent Elma was appointed CPLC. He took his oath of
office as CPLC the following day, but he waived any remuneration that he may
receive as CPLC.[5]

Petitioners cited the case of Civil Liberties Union v. Executive Secretary[6] to

support their position that respondent Elmas concurrent appointments as PCGG
Chairman and CPLC contravenes Section 13, Article VII and Section 7, par. 2,
Article IX-B of the 1987 Constitution. Petitioners also maintained that respondent
Elma was holding incompatible offices.

Citing the Resolution[7] in Civil Liberties Union v. Executive Secretary,

respondents allege that the strict prohibition against holding multiple positions
provided under Section 13, Article VII of the 1987 Constitution applies only to
heads of executive departments, their undersecretaries and assistant secretaries; it
does not cover other public officials given the rank of Secretary, Undersecretary,
or Assistant Secretary.
Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987
Constitution that should be applied in their case. This provision, according to the
respondents, would allow a public officer to hold multiple positions if (1) the law
allows the concurrent appointment of the said official; and (2) the primary
functions of either position allows such concurrent appointment. Respondents also
alleged that since there exists a close relation between the two positions and there
is no incompatibility between them, the primary functions of either position would
allow respondent Elmas concurrent appointments to both positions. Respondents
further add that the appointment of the CPLC among incumbent public officials is
an accepted practice.
 The resolution of this case had already been overtaken by supervening
events. In 2001, the appointees of former President Joseph Estrada were replaced
by the appointees of the 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, 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 Chairman
can concurrently hold the position of CPLC. The resolution of this question
requires the exercise of the Courts judicial power, more specifically its exclusive
and final authority to interpret laws. Moreover, the likelihood that the same
substantive issue raised in 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 review.[9]

Supervening events, whether intended or accidental, cannot prevent the

Court from rendering a decision if there is a grave violation of the
Constitution. Even in cases where supervening events had made the cases moot,
this Court did not hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar, and public.[10]

The merits of this case may now be discussed.

The issue in this case is whether the position of the PCGG Chairman or that
of the CPLC 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:

Art. VII .

xxxx

Section 13. The President, Vice-President, the Members of the Cabinet,

and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their
tenure. x x x
 Art. IX-B.

xxxx

Section 7. No elective official shall be eligible for appointment or

designation in any capacity to any public office or position during his
tenure.

Unless otherwise allowed by law or by the primary functions of his

position, no appointive official shall 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.

To harmonize these two provisions, this Court, in the case of Civil Liberties
Union v. Executive Secretary,[11] construed the prohibition against multiple offices
contained in Section 7, Article IX-B and Section 13, Article VII in this manner:

[T]hus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions of
their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In
other words, Section 7, Article IX-B is meant to lay down the general
rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.

The general rule contained in Article IX-B of the 1987 Constitution permits
an appointive official to hold more than one office only if allowed by law or by the
primary functions of 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 functions of both as long as there is no
incompatibility. The crucial test in determining whether incompatibility exists
between two offices was laid out in People v. Green[13] - whether one office is
subordinate to the other, in the sense that one office has the right to interfere with
the other.

[I]ncompatibilit y between two offices, is an inconsistency in the

functions of the two; x x x Where one office is not subordinate to
the other, nor the relations of the one to the other such as are
inconsistent and repugnant, there is not that incompatibility from
which the law declares that the acceptance of the one is the
vacation of the other. The force of the word, in 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 contrariet y and antagonism which would result in the attempt b y
one person to faithfull y and impartiall y discharge the duties of one,
toward the incumbent of the other. x x x The offices must
subordinate, one [over] the other, and they must, per se, have the
right to interfere, one with the other, before they are incompatible
at common law. x x x

In this case, an incompatibility exists between the positions of

the PCGG Chairman and the CPLC. The duties of the CPLC include
giving independent and impartial legal advice on the actions of the
heads of various executive departments and agencies and to review
investigations involving heads of executive departments and agencies,
as well as other Presidential appointees. The PCGG is, without
question, an agency under the Executive Department. Thus, the actions
of the PCGG Chairman are subject to the review of the CPLC. In
Memorandum Order No. 152, issued on 9 July 2004, the Office of the
President, in an effort to promote e fficiency and effective
coordination, clearly delineated and specified the functions and duties
of its senior officers as such:

SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise

and provide the President with legal assistance on matters requiring her
action, including matters pertaining to legislation.

The CPLC shall have the following duties and functions:

 a. Exercise administrative supervision over the Office of the CPLC;

b. Review and/or draft legal orders referred to her by the President on the
following matters that are subject of decisions of the President;

1. Executive Orders, proclamations, administrative orders,

memorandum orders, and other legal documents
initiated by the President;

2. Decision on investigation involving Cabinet

Secretaries, agency heads, or Presidential appointees
with the rank of Secretary conducted by the Presidential
Anti-Graft Commission (PAGC);[14]

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 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 imposing the prohibition
against holding incompatible offices.

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 they are incompatible offices, this Court will proceed to
determine whether such appointments violate the other constitutional provision
regarding multiple offices, Section 13, Article VII of the 1987 Constitution.

While Section 7, Article IX-B of the 1987 Constitution applies in general to

all elective and appointive officials, Section 13, Article VII, thereof applies in
particular to Cabinet 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 provided in Section 13, Article VII of the
1987 Constitution. Citing the case ofUS v. Mouat[16], it specifically identified the
persons who are affected by this prohibition as secretaries, undersecretaries and
assistant secretaries; and categorically excluded public officers who merely have
the rank of secretary, undersecretary or assistant secretary.
 Another point of clarification raised by the Solicitor General refers to the
persons affected by 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 common and
general acceptation as referring to the heads of the executive
departments, their undersecretaries and assistant secretaries. Public
officials given the rank equivalent to a Secretary, Undersecretary, or
Assistant Secretary are not covered by the prohibition, nor is the
Solicitor General affected thereby. (Underscoring supplied.)

It is clear from the foregoing that the strict prohibition under Section 13,
Article VII of the 1987 Constitution is not applicable to the PCGG Chairman nor
to the CPLC, as neither of them is a secretary, undersecretary, nor an assistant
secretary, even if the former may have the same rank as the latter positions.

It must be emphasized, however, that despite the non-applicability of

Section 13, Article VII 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 pronounced in violation
of the Constitution.

Granting that the prohibition under Section 13, Article VII of the 1987
Constitution is applicable to the present case, the defect in respondent Elmas
concurrent appointments to the incompatible offices of the PCGG Chairman and
the CPLC would even be magnified when seen through the more stringent
requirements imposed by the said constitutional provision. In
[17]
the aforecited case Civil Liberties Union v. Executive Secretary, the Court
stressed that the language of Section 13, Article VII is a definite and unequivocal
negation of the privilege of 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 Section 3, Article VII,
authorizing the Vice-President to become a member of the Cabinet; or (2) posts
occupied by the Executive officials specified in Section 13, Article VII without
additional compensation in an ex-officio capacity as provided by law and as
required by the 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 officials primary functions. 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 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
mandatory that the second post is required by the primary functions of the first
appointment and is exercised in an ex-officio capacity.
With its forgoing qualifications, it is evident that even Section 13, Article
VII does not sanction this dual appointment. Appointment to the position of PCGG
Chairman is not 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 Ferdinand E. Marcos, his family
and associates, the investigation of graft and corruption 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 encompass a
different matter, that is, the review and/or drafting of legal orders referred to 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 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.

In sum, the prohibition in Section 13, Article VII of the 1987

Constitution does not apply to 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, 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 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 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 between the primary functions of the offices of the
PCGG Chairman and the CPLC.

WHEREFORE, premises considered, this Court partly GRANTS this

petition and declares respondent Magdangal B. Elmas concurrent appointments as
PCGG Chairman and CPLC as UNCONSTITUTIONAL. No costs.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

On Official Leave
ARTEMIO V. PANGANIBAN
Chief Justice
Chairman

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-

Associate Justice MARTINEZ
Acting Chairman Associate Justice

ROMEO J. CALLEJO, SR.

Associate Justice
 ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Acting Chairman, First Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division

Chairmans Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

REYNATO S. PUNO
Acting Chief Justice