Funa v.
Agra
G.R. No. 191644, February 19, 2013
J. Bersamin
Digest Author: June Vincent Ferrer III
Topic: The Public Officer – De Facto and De Jure Officers – Effects of Acts of De Facto Officer
Petitioner: Dennis A.B. Funa
Respondents: 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
Case Summary: President Arroyo appointed Agra as Acting SOJ and later as Acting Solicitor
General. Petitioner filed this suit to challenge the constitutionality of Agra's concurrent
appointments or designations, claiming it to be prohibited by the Constitution.
The Supreme Court ruled that Agra was covered by the prohibition. Accordingly, he was not to
be considered as a de jure officer for the entire period of his tenure as the Acting SOJ. Instead,
he is a de facto officer. Hence, all official actions of Agra as a de facto Acting SOJ were
presumed valid, binding and effective as if he was the officer legally appointed and qualified for
the office.
Doctrine: The acts of the de facto officer are just as valid for all purposes as those of a de jure
officer, in so far as the public or third persons who are interested therein are concerned.
FACTS
On March 1, 2010, President Arroyo appointed Agra as Acting Secretary of Justice
(SOJ)
President Arroyo later designated Agra as the Acting Solicitor General in a concurrent
capacity
Petitioner filed this suit to challenge the constitutionality of Agra's concurrent
appointments or designations, claiming it to be prohibited under Sec. 13, Art. 7 of the
1987 Constitution
Agra’s Version:
o On January 12, 2010, he was then the Government Corporate Counsel when
President Arroyo designated him as the Acting Solicitor General
o On March 5, 2010, President Arroyo designated him also as the Acting SOJ
o But he admits that he held 2 offices in an acting capacity concurrently
Petitioner contends:
The prohibition under Sec. 13, Art. 7 of the 1987 Constitution does not distinguish
between an appointment or designation of a Cabinet Member in an acting or
temporary capacity and one in a permanent capacity
Acting Secretaries, being Cabinet Members, are not exempt from the constitutional ban
The position of the Solicitor General is not an ex officio position in relation to the
position of the SOJ
o The OSG is an independent and autonomous office attached to the DOJ
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
o An ex officio position does not require any further warrant or appointment
Respondents counter:
Agra’s concurrent designations as the Acting SOJ and Acting Solicitor General
were only in a temporary capacity
o The only effect of which was to confer additional duties to him
o Thus, as the Acting Solicitor General and Acting SOJ, Agra was not “holding”
both offices in the strict constitutional sense.
o For an appointment to be covered by the constitutional prohibition, it must be
regular and permanent, instead of a mere designation
Even assuming that Agra’s concurrent designation constituted “holding of multiple
offices”, his continued service as the Acting Solicitor General was akin to a hold-over
o Upon Agra's designation as the Acting SOJ, his term as the Acting Solicitor
General expired in view of the constitutional prohibition against holding of
multiple offices by Members of the Cabinet
o 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
o During his continued service as the Acting Solicitor General, he did not receive
any salaries and emoluments from the OSG after becoming the Acting SOJ
The OSG’s independence and autonomy are defined by the powers and functions
conferred to that office by law, not by the person appointed to head such office
o Although the OSG is attached to the DOJ, the DOJ's authority, control and
supervision over the OSG are limited only to budgetary purposes
ISSUES AND HELD
1. W/N the designation of Agra as the Acting SOJ, concurrently with his position of Acting
Solicitor General, violated the constitutional prohibition against dual or multiple offices for
the Members of the Cabinet and their deputies and assistants – YES
RULE
Sec. 13, Art. 7 of the 1987 Constitution
o 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.
Sec. 7(2), Art. 9-B of the 1987 Constitution
o 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 GOCCs or their
subsidiaries.
While all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the Constitution itself
o Thus, Sec. 7, Art. 9-B lays down the general rule applicable to all elective and
appointive public officials and employees
o Meanwhile, Sec. 13, Art. 7 is meant to be the exception applicable only to the
President, the Vice- President, Members of the Cabinet, their deputies and
assistants.
Purpose of the Framers for the Exception:
o 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
o Hence, the exception to this prohibition must be read strictly
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
APPLICATION
Being designated as the Acting SOJ concurrently with his position of Acting
Solicitor General, Agra was undoubtedly covered by Sec. 13, Art. 7
o (Because SOJ is a Cabinet position?)
Hence, Agra could not validly hold any other office or employment during his tenure as
the Acting Solicitor General
o The Constitution has not otherwise so provided
2. W/N the prohibition applies even if Agra’s designation was in a temporary capacity – YES
It does not matter that Agra’s designation was in an acting or temporary capacity
Sec. 13, Art. 7 plainly indicates that the intent of the framers 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 GOCCs was concerned.
o 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 language of the Constitution makes no reference to the nature of the
appointment or designation.
o 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
o To construe differently is to open the floodgates of circumvention of an important
constitutional disqualification of officials in the Executive Department and of
limitations on the President's power of appointment in the guise of temporary
designations
The only 2 exceptions against the holding of multiple offices are:
o (1) Those provided for under the Constitution
Such as Sec. 3, Art. 7, authorizing the Vice President to become a
Member of the Cabinet
o (2) Posts occupied by Executive officials specified in Sec. 13, Art. 7 without
additional compensation in ex officio capacities as provided by law and as
required by the primary functions of the officials' offices
3. W/N Agra’s designation was in an ex officio capacity – NO
RULE
Ex Officio
o Means “from office; by virtue of office”
o It refers to an authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the official
position.
o It denotes an act done in an official character, or as a consequence of
office, and without any other appointment or authority other than that
conferred by the office
o An ex officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment
The ex officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position
o These services are already paid for and covered by the compensation attached
to his principal office
APPLICATION
Under the Administrative Code of 1987, the DOJ’s mandate is to:
o Provide the government with a principal law agency which shall be both its legal
counsel and prosecution arm
o Administer the criminal justice system in accordance with the accepted
processes thereof consisting in the investigation of the crimes, prosecution of
offenders and administration of the correctional system
o Implement the laws on the admission and stay of aliens, citizenship, land titling
system, and settlement of land problems involving small landowners and
members of indigenous cultural minorities
o Provide free legal services to indigent members of the society
On the other hand, the Administrative Code of 1987 confers upon the OSG the following
powers and functions:
o Represent the Government of the Philippines, its agencies and instrumentalities
and its officials and agents in any litigation, proceeding, investigation or matter
requiring the services of lawyers
o When authorized by the President or head of the office concerned, it shall also
represent GOCCs
o Discharge duties requiring the services of lawyers
Clearly, 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
o Although the OSG is attached to the DOJ, the OSG is not a constituent unit of
DOJ
o In fact, the Administrative Code of 1987 decrees that the OSG is independent
and autonomous
o With the enactment of RA 9417, the Solicitor General is now vested with a
Cabinet rank, and has the same qualifications for appointment, rank,
prerogatives, salaries, allowances, benefits and privileges as those of the
Presiding Justice of the CA
Moreover, the magnitude of the scope of work of the Solicitor General, if added to
the equally demanding tasks of the SOJ, is obviously too much for any one official
to bear.
o Apart from the sure peril of political pressure, the concurrent holding of the two
positions may affect sound government operations and the proper performance
of duties, even if they are not entirely incompatible
Civil Liberties Union v. Executive Secretary
o Being head of an executive department is no mean job
It is more than a full-time job, requiring full attention, specialized
knowledge, skills and expertise
o If maximum benefits are to be derived from a department head's ability and
expertise, he should be allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or employment.
He should be precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may result in
haphazardness and inefficiency.
o The advantages to be derived from this concentration of attention, knowledge
and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits that may be gained from a department
head spreading himself too thin and taking in more than what he can handle
Even assuming that Agra, as the Acting Solicitor General, was not covered by the
stricter prohibition under Sec. 13, due to such position being merely vested with a
cabinet rank under Sec. 3 of RA 9417, he is still covered by the general prohibition
under Sec. 7
o Hence, his concurrent designations were still subject to the conditions under the
latter constitutional provision
There 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
o The crucial test in determining whether incompatibility exists between two offices
was is whether one office is subordinate to the other, in the sense that one office
has the right to interfere with the other
However, the primary functions of the OSG are not related or necessary to the primary
functions of the DOJ
o The nature and duties of the two offices are such as to render it improper for one
person to retain both, from considerations of public policy
o Thus, an incompatibility between the offices exists
4. W/N Agra was a de facto officer – YES
RULE
De Jure Officer
o One who is deemed, in all respects, legally appointed and qualified and whose
term of office has not expired
De Facto Officer
o 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.
o One who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however
irregular or informal, so that the incumbent is not a mere volunteer
The acts of the de facto officer are just as valid for all purposes as those of a de jure
officer, in so far as the public or third persons who are interested therein are concerned
In cases where there is no de jure officer, a de facto officer, who in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office
o He may recover the salary, fees and other compensations attached to the office
in an appropriate action
o It would be unjust that the public should benefit by the services of a de facto
officer and then be freed from all liability to pay any one for such services
APPLICATION
In view of the application of the stricter prohibition under Sec. 13, Agra did not validly
hold the position of Acting SOJ concurrently with his holding of the position of Acting
Solicitor General.
Accordingly, he was not to be considered as a de jure officer for the entire period of his
tenure as the Acting SOJ
o Instead, he is a de facto officer
Hence, all official actions of Agra as a de facto Acting SOJ were presumed valid,
binding and effective as if he was the officer legally appointed and qualified for
the office
RULING
Petition GRANTED.
