Public Interest Center vs.

Elma Case Digest

Facts:

Elma was appointed as Chairman of the PCGG on 30 October 1998. Thereafter, during his tenure as
PCGG Chairman, he was appointed as Chief Presidential Legal Counsel (CPLC). He accepted the
second appointment, but waived any renumeration that he may receive as CPLC.

Petitioner questions Elma's concurrent appointments as PCGG Chairman and CPLC. They contend
that the appointments contravene 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.

Elma alleged 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.

He also claimed that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that should be applied
in his case. This provision, according to him, 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. 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. He further add that the
appointment of the CPLC among incumbent public officials is an accepted practice.

Issues:

1. Can the PCGG Chairman concurrently hold the position of CPLC?

2. Is the strict prohibition under Section 13, Article VII of the 1987 Constitution applicable to the PCGG
Chairman or to the CPLC?

3. Does the ruling that the concurrent appointments as PCGG Chairman and CPLC are
unconstitutional, for being incompatible offices, render both appointments void?

4. Is there a need to refer the case to the Court en banc?

Held:

1. No. The concurrent appointment to these offices is in violation of Section 7, par. 2, Article IX-B of
the 1987 Constitution, since these are incompatible offices. 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. 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.
2. 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.

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. The said section allows
the concurrent holding of positions only when: (1) provided for under the Constitution, such as Section
3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or (2) the second
post is required by the primary functions of the first appointment and is 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]. Although respondent Elma
waived receiving renumeration for the second appointment, the primary functions of the PCGG
Chairman do not require his appointment as CPLC.

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. 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. 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 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.

3. The ruling that the concurrent appointments as PCGG Chairman and CPLC are unconstitutional,
for being incompatible offices, does not render both appointments void. Following the common-law
rule on incompatibility of offices, respondent Elma had, in effect, vacated his first office as PCGG
Chairman when he accepted the second office as CPLC.

4. There also is no merit in the respondents’ motion to refer the case to the Court en banc. What is in
question in the present case is the constitutionality of respondent Elma’s concurrent appointments,
and not the constitutionality of any treaty, law or agreement. The mere application of constitutional
provisions does not require the case to be heard and decided en banc. (Public Interest Center vs.
Elma, G.R. No. 138965, March 5, 2007)