Funa vs. Agra

A member of the Cabinet designated in an acting or temporary capacity to hold another office is prohibited from doing so under Section 13, Article VII of the 1987 Constitution, as the provision makes no distinction between permanent and temporary appointments; the exception applies only when expressly provided by the Constitution or when the other office is held in an ex officio capacity.

President Gloria Macapagal-Arroyo designated Alberto C. Agra as Acting Solicitor General on January 12, 2010, following the appointment of Solicitor General Devanadera as Secretary of Justice. On March 5, 2010, President Arroyo further designated Agra as Acting Secretary of Justice vice Secretary Devanadera, who had resigned to run for Congress. Agra relinquished his prior position as Government Corporate Counsel but continued serving in both acting capacities. Petitioner Dennis A.B. Funa, in his capacity as a taxpayer, concerned citizen, and lawyer, challenged the concurrent designations on April 7, 2010. During the pendency of the suit, Jose Anselmo I. Cadiz was appointed and assumed the office of Solicitor General on August 5, 2010.

• Designations: Agra, then the Government Corporate Counsel, was designated Acting Solicitor General on January 12, 2010, and Acting Secretary of Justice on March 5, 2010. He admitted to holding the two offices concurrently in acting capacities.
• Petitioner's Challenge: Funa filed the suit on April 7, 2010, assailing the constitutionality of the concurrent designations, relying on the pronouncements in Civil Liberties Union v. Executive Secretary and Public Interest Center, Inc. v. Elma.
• Supervening Event: The appointment of Cadiz as Solicitor General occurred during the pendency of the suit, rendering the specific controversy over Agra's tenure moot but not precluding resolution of the constitutional issue.

• Applicability of the Prohibition to Acting Appointments: Petitioner argued that Section 13, Article VII of the 1987 Constitution makes no distinction between permanent and acting or temporary appointments; Acting Secretaries remain Members of the Cabinet and are fully covered by the constitutional ban.
• Ex Officio Capacity: Petitioner maintained that the position of Solicitor General is not ex officio relative to the Secretary of Justice, as the Office of the Solicitor General (OSG) is an independent and autonomous office attached to the Department of Justice (DOJ) and requires a separate warrant of appointment.
• No Prevailing Special Circumstance: Petitioner insisted that no special circumstance justified exempting Agra from the constitutional prohibition, and the temporariness of the designation did not excuse the violation.

• Temporary Capacity Exception: Respondents contended that Agra's concurrent designations were temporary, merely conferring additional duties rather than constituting "holding" both offices in the strict constitutional sense.
• Hold-over Principle: Respondents argued that Agra's continued service as Acting Solicitor General was akin to a hold-over to prevent a hiatus in government, and he received no salaries or emoluments from the OSG after becoming Acting Secretary of Justice.
• OSG Autonomy: Respondents pointed out that the OSG's independence is defined by its statutory powers, not by the person heading it, and the DOJ's supervision over the OSG is limited to budgetary matters.

• Constitutionality of Concurrent Designation: Whether the designation of Agra as Acting Secretary of Justice, concurrently with his position of Acting Solicitor General, violated the constitutional prohibition against dual or multiple offices for Members of the Cabinet and their deputies and assistants.
• Mootness: Whether the intervening appointment of a new Solicitor General rendered the case moot and academic.

• Constitutionality of Concurrent Designation: The concurrent designation was unconstitutional and void. Section 13, Article VII imposes a stricter prohibition on the President, Vice-President, Members of the Cabinet, and their deputies or assistants, making no distinction between permanent and temporary appointments. The phrase "unless otherwise provided in this Constitution" refers only to specific constitutional exceptions (e.g., the Vice-President as Cabinet member, the Secretary of Justice as ex officio JBC member) or ex officio capacities. The OSG is independent and autonomous from the DOJ; thus, the SolGen position is not ex officio to the Secretary of Justice. Furthermore, the broad exceptions under Section 7, Article IX-B (allowing other appointive officials to hold multiple offices if allowed by law or primary functions) cannot be applied to Cabinet members subject to the stricter Section 13 rule. The two offices are incompatible, as the magnitude of their duties prevents one person from faithfully discharging both.
• Mootness: The case falls under recognized exceptions to the mootness doctrine. Resolving the constitutional issue was necessary because it involved a grave violation of the Constitution, a situation of paramount public interest, the need to formulate controlling principles for the bench and bar, and the likelihood that the situation was capable of repetition yet evading review.

• Prohibition on Holding Multiple Offices (Section 13, Article VII) — The President, Vice-President, Members of the Cabinet, and their deputies or assistants are strictly prohibited from holding any other office or employment during their tenure unless otherwise provided in the Constitution. This prohibition applies irrespective of whether the appointment or designation is permanent or temporary/acting. The only exceptions are: (1) those expressly provided in the Constitution, and (2) positions occupied in an ex officio capacity. The broader exceptions under Section 7, Article IX-B (allowing multiple posts if allowed by law or primary functions) do not apply to Cabinet members.
• De Facto Officer Doctrine — A de facto officer is one who derives appointment from one with colorable authority, whose appointment is valid on its face, and who discharges duties under color of authority. The acts of a de facto officer are valid and binding as to the public and third persons. Agra was declared a de facto officer during his tenure as Acting Secretary of Justice, thereby protecting the sanctity of his official acts.

• "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."
• "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 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..."
• "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..."

• Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1991) — Followed. Clarified that Section 13, Article VII imposes a stricter prohibition on Cabinet members, undersecretaries, and assistant secretaries, distinct from the general rule in Section 7, Article IX-B. Defined ex officio capacities and established that officials with the rank of Secretary/Undersecretary/Assistant Secretary are not covered by the stricter prohibition.
• Public Interest Center, Inc. v. Elma, 494 SCRA 53 (2006) — Followed. Held that the only exceptions to the prohibition on holding multiple offices are those provided in the Constitution and ex officio capacities. Clarified that the prohibition in Section 13, Article VII does not apply to officials merely given the rank of Secretary, Undersecretary, or Assistant Secretary.
• Funa v. Ermita, 612 SCRA 308 (2010) — Followed. Reiterated the differentiation between Section 7, Article IX-B (general rule) and Section 13, Article VII (stricter prohibition for Cabinet members).

• Section 13, Article VII, 1987 Constitution — Prohibits the President, Vice-President, Members of the Cabinet, and their deputies or assistants from holding any other office or employment during their tenure unless otherwise provided in the Constitution. Applied strictly to Agra's concurrent acting designations.
• Section 7, Paragraph (2), Article IX-B, 1987 Constitution — Bans appointive officials from holding other offices unless allowed by law or the primary functions of their position. Held inapplicable to Cabinet members subject to the stricter Section 13, Article VII rule.
• Administrative Code of 1987 — Defines the powers and functions of the DOJ and the OSG, establishing the OSG as independent and autonomous, thereby demonstrating that the SolGen position is not ex officio to the Secretary of Justice.
• Republic Act No. 9417 — Vests the Solicitor General with cabinet rank and qualifications equivalent to the Presiding Justice of the Court of Appeals.

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, Leonen