FIRST DIVISION

[G.R. No. 138965. June 30, 2006.]

PUBLIC INTEREST CENTER INC., LAUREANO T. ANGELES, and

JOCELYN P. CELESTINO , petitioners, vs . 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.

DECISION

CHICO-NAZARIO , J : p

This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer for
Temporary Restraining Order/Writ of Preliminary Injunction led 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 bene ts 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 o ce 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 o ce 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 o cials
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 o cer to hold multiple positions if (1) the law allows the concurrent
appointment of the said o cial; 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
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 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. SDAaTC

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 lled. There no longer exists an actual
controversy that needs to be resolved. However, this case raises a signi cant 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 speci cally its exclusive and nal 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. 1 0
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 o ces imposed by Section 13, Article VII
and Section 7, par. 2, Article IX-B of the 1987 Constitution, which provide that:
Art. VII.

xxx xxx xxx

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. . . .

Art. IX-B.
xxx xxx xxx

Section 7. No elective o cial 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 o cial shall hold any other o ce 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, 1 1 construed the prohibition against multiple o ces contained in
Section 7, Article IX-B and Section 13, Article VII in this manner:
[T]hus, while all other appointive o cials in the civil service are allowed to
hold other o ce 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
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 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 o cials 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 o cial to hold more than one o ce only if "allowed by law or by the primary
functions of his position." In the case of Quimson v. Ozaeta, 1 2 this Court ruled that, "[t]here
is no legal objection to a government o cial occupying two government o ces and
performing the functions of both as long as there is no incompatibility ." The crucial
test in determining whether incompatibility exists between two o ces was laid out in
People v. Green 1 3 — whether one o ce is subordinate to the other, in the sense that one
office has the right to interfere with the other. EIaDHS

[I]ncompatibility between two o ces, is an inconsistency in the functions

of the two; . . . 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. . . . The o ces 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. . . .

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 ciency and effective coordination, clearly delineated and speci ed
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
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 conducted by the Presidential Anti-Graft Commission (PAGC); 1 4

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 o ces, this Court will proceed to determine whether such
appointments violate the other constitutional provision regarding multiple o ces, 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 o cials, 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 , 1 5 this Court already clari ed the scope of the prohibition
provided in Section 13, Article VII of the 1987 Constitution. Citing the case of US v. Mouat
1 6 , it speci cally identi ed the persons who are affected by this prohibition as secretaries,
undersecretaries and assistant secretaries; and categorically excluded public o cers who
merely have the rank of secretary, undersecretary or assistant secretary.
Another point of clari cation 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 o cials 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 o cers 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 o ces of the PCGG Chairman and the CPLC would even be magni ed
when seen through the more stringent requirements imposed by the said constitutional
provision. In the aforecited case Civil Liberties Union v. Executive Secretary , 1 7 the Court
stressed that the language of Section 13, Article VII is a de nite and unequivocal negation
of the privilege of holding multiple o ces or employment. The Court cautiously allowed
only two exceptions to the rule against multiple o ces: (1) those provided for under the
Constitution, such as Section 3, Article VII, authorizing the Vice-President to become a
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 member of the Cabinet; or (2) posts occupied by the Executive o cials speci ed 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 o cials' o ce. The Court
further quali ed that additional duties must not only be closely related to, but must be
required by the o cial's primary functions. Moreover, the additional post must be
exercised in an ex-officio capacity, which "denotes an act done in an o cial character, or
as a consequence of o ce, and without any other appointment or authority than that
conferred by the office." 1 8 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 rst appointment and is exercised in an ex-officio
capacity. aTICAc

With its forgoing quali cations, 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. 1 9 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. 2 0 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 o ces of the PCGG Chairman and CPLC because neither o ce was
occupied by him in an ex-officio capacity, and the primary functions of one o ce 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
o cials, due to the incompatibility between the primary functions of the o ces 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.
Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.
Panganiban, C.J., is on official leave.

Footnotes
1. Rollo, p. 3.
2. Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
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 assistants shall not, unless otherwise provided in this Constitution, hold any other office
or employment during their tenure. . . . .
3. Sec. 7. . . .
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.
4. Rollo, p. 9.
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.

15. Supra note 6.

16. 124 US 303 (1888).
17. Supra note 6.
18. Supra note 6 at 333.
19. Executive Order No. 1, 28 February 1986.

20. Supra note 14.

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