Documente Academic
Documente Profesional
Documente Cultură
G. R. No. 138965
Present:
PANGANIBAN, CJ , *
Chairman,
YNARES-SANTIAGO, * *
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ .
MAGDANGAL B. ELMA, as
Chief
Presidential
Legal
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
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 inPeople 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
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
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 illgotten 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,
MINITA V. CHICO-NAZARIO
Associate Justice