FIRST DIVISION

PUBLIC INTEREST CENTER INC., LAUREANO T. ANGELES, and JOCELYN P. CELESTINO,

Petitioners,

- versus -

MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the Presidential Commission on Good Government, and RONALDO ZAMORA, as Executive Secretary,

Respondents.

G. R. No. 138965

Present:

PANGANIBAN, CJ,*

Chairman,

YNARES-SANTIAGO,**

AUSTRIA-MARTINEZ,

CALLEJO, SR., and

CHICO-NAZARIO, JJ.

Promulgated:

June 30, 2006

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D E C I S I O N

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 Elma’s 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 Elma’s 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 Court’s 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 .

x x x x

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.

x x x x

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]ncompatibility 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 contrariety and antagonism which would result in the attempt by one person to faithfully and impartially 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 efficiency 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 of US 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 Elma’s 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 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 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 official’s 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. Elma’s 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 Associate Justice Acting Chairman	MA. ALICIA AUSTRIA-MARTINEZ Associate Justice



ROMEO J. CALLEJO, SR. Associate Justice

A T T E S T A T I O N

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 Court’s Division.

CONSUELO YNARES-SANTIAGO

Associate Justice

Acting Chairman, First Division

C E R T I F I C A T I O N

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman’s 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 Court’s Division.

REYNATO S. PUNO

Acting Chief Justice

[2] Sec. 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.

[3] Sec. 7. x x x

[5] Id. at 4 and 17.

[6] G.R. Nos. 83896 and 83815, 22 February 1991, 194 SCRA 317.

[7] G.R. Nos. 83896 and 83815, 1 August 1991.

[8] Resolution in Freedom from Debt Coalition v. Energy Regulatory Commission, G.R. No. 161113, 9 August 2005.

[9] Gayo v. Verceles, G.R. No. 150477, 28 February 2005, 452 SCRA 504, 514; Viola v. Hon. Alunan III, 343 Phil. 184, 191 (1997).

[10] Province of Batangas v. Romulo, G.R. No. 152774, 27 May 2004, 429 SCRA 736, 757; Chavez v. Public Estates Authority, 433 Phil. 506, 522 (2002).

[11] Supra note 6 at 329.

[12] 98 Phil. 705, 709 (1956).

[13] People v. Green, 13 Sickels 295, 58 N.Y. 295, 1874 WL 11282 (N.Y.).

[14] Memorandum Order No. 152, 9 July 2004.

[16] 124 US 303 (1888).

[18] Supra note 6 at 333.

[19] Executive Order No. 1, 28 February 1986.

MINITA V. CHICO-NAZARIO

ARTEMIO V. PANGANIBAN

MA. ALICIA AUSTRIA-MARTINEZ

A T T E S T A T I O N

C E R T I F I C A T I O N