Sunday, March 11, 2007 High court rejects appeal vs bar on 2 gov’t posts held by exec
THE Supreme Court (SC) has affirmed its decision stating that the chairman of the Presidential Commission on Good Government (PCGG) is prohibited from simultaneously serving as chief presidential legal counsel in a concurrent capacity.
In a resolution penned by Associate Justice Minita Chico-Nazario, the SC's Third Division denied with finality the motion for reconsideration filed by Magdangal Elma, former President Joseph Estrada's chief presidential legal counsel, seeking a reversal of the high court's ruling issued on June 30, 2006 that declared unconstitutional his holding a concurrent position as head of the executive agency.
The SC likewise denied Elma's motion to elevate the case to the court en banc, adding that the basic issues raised by Elma have already been passed upon by the court in its decision.
"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," the court ruled.
The high court said Elma's concurrent appointment as PCGG chairman and Palace legal counsel was in violation of Section 7, Paragraph 2, Article IX-B of the 1987 Constitution since these are incompatible offices.
The general rule contained in Article IX-B of the Constitution permits an appointive official to hold more than one office only if “allowed by law or by the primary functions of his position.”
This means that when Elma accepted the offer for him to chair the PCGG, he has automatically ceased to be the chief presidential legal counsel.
It further claimed that although Elma waived receiving renumeration for the second appointment, the primary functions of the PCGG chairman do not require his appointment as chief presidential legal counsel.
"The duties of the chief presidential legal counsel include giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and reviewing investigations involving heads of executive departments. Since the actions of the PCGG chairman, a head of an executive agency, are subject to the review of the chief presidential legal counsel, such appointments would be incompatible," the court said.
The SC further pointed out that the controversy has long been resolved since the appointees of Estrada have been replaced by President Gloria Macapagal-Arroyo when she assumed the presidency.
Nonetheless, the tribunal deemed it necessary to resolve the case since it raised a significant legal question as yet unresolved on whether the PCGG chairman can concurrently hold the position of chief presidential legal counsel.
In the original decision of the court, the SC ruled that the general rule contained in Article IX-B of the Constitution permits an appointive official to hold more than one office only if "allowed by law or by the primary functions of his position."
The tribunal noted the "incompatibility" in the duties of the chief presidential legal counsel and PCGG chairman, such that the chief presidential legal counsel gives 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.
On the other hand, the PCGG is an agency under the executive department. "Thus, the actions of the PCGG chairman are subject to the review of the chief presidential legal counsel."
"As chief presidential legal counsel, 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 (PACG), 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," the SC said.
However, the SC said Article VII, Section 13 of the Constitution, the other constitutional provision regarding multiple offices, was not applicable to the PCGG chairman nor to the chief presidential legal counsel, as neither of them is a secretary, undersecretary or an assistant secretary, even if the Palace legal counsel may have the same rank as the positions previously mentioned.
Even if Section 13 is applicable, Elma still could not be appointed concurrently to the said offices 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, the SC said.
Besides, even if the appointments in question are not covered by Section 13, said appointments are still prohibited under Article IX-B, Section 7, which covers all appointive and elective officials, due to the incompatibility between the primary functions of the offices of the PCGG chairman and the chief presidential legal counsel. (ECV/Sunnex)
