Case Digest

Funa vs Agra 691 SCRA 196 (2013)

Ponente:
Bersamin J

Facts:

-Alberto Agra was appointed as Acting Sec of Justice and Acting Solicitor General in
concurrent capacity by then President Arroyo.
-Dennis Funa, petitioner in his capacity as taxpayer challenge the constitutionality of
Agra holding two positions, claiming it to be prohibited under Sec 13, Article VII of the
1987 Constitution.

Issues:

- Did the designation of Agra as the Acting Secretary of Justice concurrently with his
position of Acting Solicitor General was unconstitutional and void for being in violation of
the constitutional prohibition under sec 13, Article VII of the 1987 Constitution.

Ruling:

-SC grants the petition for certiorari and prohibition; annuls and voids the designation of
Agra as the Acting Secretary in concurrent capacity with his position as the Acting
Solicitor General for being unconstitutional and violative of Sec 13, Article VII of the
1987 Consti and declares that Agra was a de-facto officer during his tenure as Acting
Sec of Justice.
A de-factor officer is one who derives his appointment from one having colorable
authority to appoint, if the office is an appointive office, and whose appointment is valid
on its face.

CASE DIGEST: DENNIS A.B. FUNA, Petitioner, v . ACTING SECRETARY OF JUSTICE ALBERTO C.
AGRA, IN HIS OFFICIAL CONCURRENT CAPACITIES AS ACTING SECRETARY OF THE DEPARTMENT
OF JUSTICE AND AS ACTING SOLICITOR GENERAL, EXECUTIVE SECRETARY LEANDRO R.
MENDOZA, OFFICE OF THE PRESIDENT, Respondents. (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 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.

The appointments being hereby challenged were in acting or temporary capacities. Still, the
petitioner submits that the prohibition under Section 13, Article VII of the 1987 Constitution
does not distinguish between an appointment or designation of a Member of the Cabinet in an
acting or temporary capacity, on the one hand, and one in a permanent capacity, on the other
hand; and that Acting Secretaries, being nonetheless Members of the Cabinet, are not exempt
from the constitutional ban. He emphasizes that the position of the Solicitor General is not an
ex officio position in relation to the position of the Secretary of Justice, considering that the
Office of the Solicitor General (OSG) is an independent and autonomous office attached to the
Department of Justice (DOJ). He insists that the fact that Agra was extended an appointment
as the Acting Solicitor General shows that he did not occupy that office in an ex officio capacity
because an ex officio position does not require any further warrant or appointment.

Respondents contend, in contrast, that Agra concurrent designations as the Acting Secretary
of Justice and Acting Solicitor General were only in a temporary capacity, the only effect of
which was to confer additional duties to him. Thus, as the Acting Solicitor General and Acting
Secretary of Justice, Agra was not "holding" both offices in the strict constitutional sense. They
argue that an appointment, to be covered by the constitutional prohibition, must be regular
and permanent, instead of a mere designation.

Respondents further contend that, even on the assumption that Agra concurrent designation
constituted "holding of multiple offices," his continued service as the Acting Solicitor General
was akin to a hold-over; that upon Agra designation as the Acting Secretary of Justice, his term
as the Acting Solicitor General expired in view of the constitutional prohibition against holding
of multiple offices by the Members of the Cabinet; that under the principle of hold-over, Agra
continued his service as the Acting Solicitor General "until his successor is elected and
qualified" to "prevent a hiatus in the government pending the time when a successor may be
chosen and inducted into office;" and that during his continued service as the Acting Solicitor
General, he did not receive any salaries and emoluments from the OSG after becoming the
Acting Secretary of Justice on March 5, 2010.
ISSUE:

Did the designation of Agra as the Acting Secretary of Justice, concurrently with his position of
Acting Solicitor General, violate the constitutional prohibition against dual or multiple offices?

HELD:

The evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition
on the President, Vice-President, members of the Cabinet, their deputies and assistants with
respect to holding multiple offices or employment in the government during their tenure, the
exception to this prohibition must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive
and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to refer only to
those particular instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2)and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section
8 (1), Article VIII.

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 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. 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
President 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."
According to Public Interest Center, Inc. v. Elma, the only two exceptions against the holding of
multiple offices are: (1) those provided for under the Constitution, such as Section 3, Article
VII, authorizing the Vice President to become a member of the Cabinet; and (2) posts occupied
by Executive officials specified in Section 13, Article VII without additional compensation in ex
officio capacities as provided by law and as required by the primary functions of the officials
offices. In this regard, the decision in Public Interest Center, Inc. v. Elma adverted to the
resolution issued on August 1, 1991 in Civil Liberties Union v. The Executive Secretary,
whereby the Court held that the phrase "the Members of the Cabinet, and their deputies or
assistants" found in Section 13, supra, referred only to the heads of the various executive
departments, their undersecretaries and assistant secretaries, and did not extend to other
public officials given the rank of Secretary, Undersecretary or Assistant Secretary.

It is equally remarkable, therefore, that Agra designation as the Acting Secretary of Justice was
not in an ex officio capacity, by which he would have been validly authorized to concurrently
hold the two positions due to the holding of one office being the consequence of holding the
other. Being included in the stricter prohibition embodied in Section 13, supra, Agra cannot
liberally apply in his favor the broad exceptions provided in Section 7, paragraph 2, Article IX-B
of the Constitution to justify his designation as Acting Secretary of Justice concurrently with his
designation as Acting Solicitor General, or vice versa.

To underscore the obvious, it is not sufficient for Agra to show that his holding of the other
office was "allowed by law or the primary functions of his position." To claim the exemption of
his concurrent designations from the coverage of the stricter prohibition under Section 13,
supra, he needed to establish herein that his concurrent designation was expressly allowed by
the Constitution. But, alas, he did not do so.

The magnitude of the scope of work of the Solicitor General, if added to the equally
demanding tasks of the Secretary of Justice, is obviously too much for any one official to bear.
Apart from the sure peril of political pressure, the concurrent holding of the two positions,
even if they are not entirely incompatible, may affect sound government operations and the
proper performance of duties. GRANTED