Funa vs Agra (G.R. No.

191644
February 19, 2013)
Funa vs Agra
G.R. No. 191644 February 19, 2013

Facts: The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal Arroyo
appointed Agra as the Acting Secretary of Justice following the resignation of Secretary Agnes
VST Devanadera in order to vie for a congressional seat in Quezon Province; that on March 5,
2010, President Arroyo designated Agra as the Acting Solicitor General in a concurrent capacity;
that on April 7, 2010, the petitioner, in his capacity as a taxpayer, a concerned citizen and a
lawyer, commenced this suit to challenge the constitutionality of Agra’s concurrent appointments
or designations, claiming it to be prohibited under Section 13, Article VII of the 1987
Constitution; that during the pendency of the suit, President Benigno S. Aquino III appointed
Atty. Jose Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the Solicitor
General and commenced his duties as such on August 5, 2010. Agra renders a different version
of the antecedents. He represents that on January 12, 2010, he was then the Government
Corporate Counsel when President Arroyo designated him as the Acting Solicitor General in
place of Solicitor General Devanadera who had been appointed as the Secretary of Justice; that
on March 5, 2010, President Arroyo designated him also as the Acting Secretary of Justice vice
Secretary Devanadera who had meanwhile tendered her resignation in order to run for Congress
representing a district in Quezon Province in the May 2010 elections; that he then relinquished
his position as the Government Corporate Counsel; and that pending the appointment of his
successor, Agra continued to perform his duties as the Acting Solicitor General. Notwithstanding
the conflict in the versions of the parties, the fact that Agra has admitted to holding the two
offices concurrently in acting capacities is settled, which is sufficient for purposes of resolving
the constitutional question that petitioner raises herein.

Issue: Whether or not Agra’s holding of concurrent position is unconstitutional.

Held: Yes. At the center of the controversy is the correct application of Section 13, Article VII
of the 1987 Constitution, viz:

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. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, to wit:

Section 7. x x x Unless otherwise allowed by law or 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.

Being designated as the Acting Secretary of Justice concurrently with his position of Acting
Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra,
whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold
any other office or employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.

It was of no moment that Agra’s designation was in an acting or temporary capacity. The text of
Section 13, supra, plainly indicates that the intent of the Framers of the Constitution was to
impose a stricter prohibition on the President and the Members of his Cabinet in so far as holding
other offices or employments in the Government or in government-owned or government
controlled-corporations was concerned. In this regard, to hold an office means to possess or to
occupy the office, or to be in possession and administration of the office, which implies nothing
less than the actual discharge of the functions and duties of the office. Indeed, in the language of
Section 13 itself, supra, the Constitution makes no reference to the nature of the appointment or
designation. The prohibition against dual or multiple offices being held by one official must be
construed as to apply to all appointments or designations, whether permanent or temporary, for it
is without question that the avowed objective of Section 13, supra, is to prevent the concentration
of powers in the Executive Department officials, specifically the President, the Vice-President,
the Members of the Cabinet and their deputies and assistants. To construe differently is to “open
the veritable floodgates of circumvention of an important constitutional disqualification of
officials in the Executive Department and of limitations on the Presidents power of appointment
in the guise of temporary designations of Cabinet Members, undersecretaries and assistant
secretaries as officers-in-charge of government agencies, instrumentalities, or government-
owned or controlled corporations.

It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was
not covered by the stricter prohibition under Section 13, supra, due to such position being merely
vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless remained
covered by the general prohibition under Section 7, supra. Hence, his concurrent designations
were still subject to the conditions under the latter constitutional provision. In this regard, the
Court aptly pointed out in Public Interest Center, Inc. v. Elma:

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, 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 – whether one office is subordinate to
the other, in the sense that one office has the right to interfere with the other.