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DENNIS A.B. FUNAV. SEC. OF JUSTICE ALBERTO C. AGRA, ET AL.

February 19, 2013 | Bersamin, J.


Power of Appointments
AKGL

DOCTRINE: General rule is that no appointive official shall hold any other office, unless allowed by law or by primary function of
his position. The exception is that President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not hold
any other office, unless provided by the Consti. This constitutional prohibition against holding multiple offices also apply to
appointments even if in an acting capacity/temporary.
CASE SUMMARY: Agra was appointed as Acting Sec. of Justice and was later on appointed as Acting SolGen concurrently.
Petitioner assails the constitutionality of the said appointments as it was argued to be in violation of the constitutional prohibition on
holding multiple offices. The respondents however maintain that the said constitutional prohibition applies only to permanent
appointments.

FACTS:
On March 1, 2010, PGMA appointed respondent Agra as the Acting Secretary of Justice following the resignation of
Secretary Devanadera. On March 5, 2010, PGMA designated Agra as the Acting Solicitor General (SolGen) in a concurrent
capacity.
Petitioner, as a taxpayer, concerned citizen, and a lawyer, challenged the constitutionality of the said appointments. However,
during the pendency of the case, newly elected PNoy appointed Jose Anselmo Cadiz as the SolGen.
Respondents have a different version of the antecedent facts. Agra said that he was first appointed as Acting SolGen, then he
was designated also as the Acting Secretary of Justice. However, despite the conflict of versions, Agra admitted to holding 2
offices concurrently in an acting capacity.
Respodent contend that the appointments were only in a temporary capacity and that the constitutional prohibition covers
regular and permanent appointments. He also content that his continued service as an Acting SolGen was akin to a hold-over,
such that his term has already expired but he was still continuing the functions of the SolGen until his successor is elected
and qualified. Further, he asserts that he did not receive any salaries.

ISSUE: WON 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 for the Members of the Cabinet and their deputies and assistants?
YES, the designation is UNCONSTITUTIONAL.

RULING:
General rules is CONST, art. 9-B, sec. 7, par. 2, with the exception of CONST, art. 7, sec. 13.
The phrase unless otherwise provided in this Consti must be given a literal interpretation to refer only to those particular
instances cited in the Consti itself (e.g., VP as a cabinet member and Sec. of Justice as an ex-officio member of JBC). The
said phrase does not include the phrase unless otherwise allowed by law of by the primary function of his position stated in
CONST, art. 9-B.
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. The Consti makes no
reference to the nature (i.e., permanent or temporary) of the appointment or designation.
The only 2 exceptions against the holding of multiple offices are: (1) those provided for under the Consti and (2) posts
occupied by Executive officials without additional compensation in ex-officio capacities as provided by law and as
required by their primary functions.
In the instant case, Agras designation as the Acting Secretary of Justice was not an ex-officio capacity. The powers and
functions of the OSG are neither required by the primary functions nor included by the powers of the DOJ, and vice versa.
Even if OSG is attached to DOJ, it is not a constituent unit of the latter. In fact, OSG is independent and autonomous and is
now vested with a cabinet rank pursuant to RA 9417 (An Act to Strengthen the OSG).
Since Agra did not validly hold the position of Acting Sec. of Justice, he was not considered as de jure office (i.e., deemed
legally appointed), but a de facto officer. He is still likewise entitled to emoluments and his acts are considered valid, binding
and effective for all purposes.

DISPOSITION: The Courts GRANTS the petition for certiorari and prohibition; ANNULS AND VOIDS the designation of Hon.
Agra and DECLARES that Hon. Agra was a de facto officer during his tenure.

NOTES:
CONST, art. 7, sec. 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. xxx
CONST, art. 9-B, sec. 7, par. 2
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.

The differences of this case to Funa v. Ermita is that this case challenges the appointments in acting or temporary capacities.
The requisite of judicial review here is not an issue because the case is of transcendental importance. The Court also held
that even if the case may be considered as moot and academic (because of the appointment of an official SolGen), the Court
decided to go forward and resolve the issues for the following reasons: (1) there was a case of grave violation of Consti, (2)
the situation is of exceptional character, (3) it required the formulation of controlling principles, and (4) it is capable of
repetition.