G.R. No. 191644 - Funa vs. Agra

Case Summary (G.R. No. 191644)

Key Dates and Procedural Milestones

Petitioner filed the suit on April 7, 2010. Alleged designations occurred March 1, 2010 (Acting Secretary of Justice, per petitioner) and March 5, 2010 (Acting Solicitor General, per petitioner). During pendency, Jose Anselmo I. Cadiz was appointed and assumed office as Solicitor General on August 5, 2010.

Applicable Law

Constitutional provisions: 1987 Constitution — Section 13, Article VII (strict prohibition on holding other office by President, Vice‑President, Members of the Cabinet and their deputies/assistants) and Section 7, paragraph (2), Article IX‑B (general rule limiting appointive officials from holding other government offices unless allowed by law or by the primary functions of their position). Administrative Code of 1987 provisions on DOJ and OSG functions and Republic Act No. 9417 (granting cabinet rank to the Solicitor General) were treated as relevant statutory context.

Antecedent Facts and Parties’ Versions

The petitioner alleged that President Arroyo appointed Agra Acting Secretary of Justice (March 1, 2010) and then designated him Acting Solicitor General (March 5, 2010), prompting the constitutional challenge. Agra’s version averred he was Government Corporate Counsel, was designated Acting Solicitor General on January 12, 2010, and later (March 5) was designated Acting Secretary of Justice and relinquished the Government Corporate Counsel post while continuing to perform Acting Solicitor General duties. Both versions agree Agra concurrently occupied the two offices in acting capacities — a fact sufficient to raise the constitutional question.

Petitioner’s Legal Arguments

Petitioner argued that Section 13, Article VII prohibits Members of the Cabinet (including acting officials) from holding any other office or employment during tenure; temporariness or acting status does not exempt a Cabinet member from the constitutional ban. He emphasized the Solicitor General is not an ex officio derivative of the Secretary of Justice because the OSG is an independent and autonomous office attached to the DOJ; the fact that a separate appointment or designation was issued refuted any claim of ex officio status.

Respondents’ Legal Arguments

Respondents contended the concurrent designations were temporary designations that merely conferred additional duties, not dual holding of offices in the strict constitutional sense. They argued the constitutional prohibition should apply only to regular, permanent appointments and that a hold‑over principle permitted Agra to perform Acting Solicitor General functions until a successor was appointed, to avoid a hiatus. They also asserted limitations on DOJ control over the OSG (mainly budgetary) and maintained OSG independence.

Litigability, Standing, and Mootness Considerations

The Court found justiciability and ripeness satisfied. Petitioner’s locus standi as a taxpayer, concerned citizen, and lawyer was accepted on a liberal footing because the issue is of transcendental public importance. Although a successor (Cadiz) assumed the Solicitor General post during the case, the Court invoked well‑recognized exceptions to mootness (grave constitutional violation, exceptional character and paramount public interest, need to formulate controlling principles, and capability of repetition yet evading review) and proceeded to resolve the constitutional question.

Core Constitutional Question

Whether Agra’s designation as Acting Secretary of Justice concurrently with his position as Acting Solicitor General violated the constitutional prohibition in Section 13, Article VII of the 1987 Constitution (and, subsidiarily, Section 7, Article IX‑B).

Fundamental Constitutional Interpretation

Section 13, Article VII imposes a stricter prohibition on the President, Vice‑President, Members of the Cabinet, and their deputies/assistants: they "shall not" hold any other office or employment during tenure unless the Constitution expressly provides otherwise. Section 7(2), Article IX‑B is a broader rule applicable to all appointive officials that permits multiple offices only if allowed by law or by the primary functions of the official’s position. The Court emphasized that the phrase "unless otherwise provided in this Constitution" in Section 13 must be read literally and narrowly, referring only to specific constitutional authorizations (e.g., the Vice‑President’s possible inclusion in the Cabinet, or the Secretary of Justice’s ex officio membership in the Judicial and Bar Council). Section 7(2) cannot be used to dilute Section 13’s stricter prohibition.

Effect of Acting or Temporary Status

The Court held that the temporary or acting character of appointments does not exempt a Cabinet member from Section 13. "Holding an office" contemplates actual possession and discharge of functions and duties; the constitutional bar applies irrespective of whether the appointment or designation is permanent or temporary. Permitting acting designations to circumvent the prohibition would undermine the Framers’ intent to prevent concentration of executive power and would allow circumvention of constitutional limits through temporary designations.

Ex Officio Capacity Analysis

The Court examined whether one designation was ex officio of the other. Ex officio status means membership "by virtue of office" without separate appointment. The Court found Agra’s concurrent designations were not ex officio: the Solicitor General’s functions are not derived from the Secretary of Justice’s office; the OSG’s statutory powers and autonomy (as reflected in the Administrative Code and RA 9417) show that the two offices are distinct. The fact that a separate designation was issued further indicated a non‑ex officio relationship.

Statutory Functions of DOJ and OSG

The Administrative Code enumerates separate powers and functions for the DOJ and the OSG. The DOJ serves as the government’s principal law agency and prosecution arm, administering criminal justice, immigration, land titling functions, and providing legal services including to indigents. The OSG specifically represents the Government in litigation, prosecutes certain cases, advises on legal matters, deputizes fiscal officers, and performs distinct lawyerly functions. The Court concluded that neither office’s primary functions encompass the other’s functions, demonstrating distinct and non‑derivative roles.

Incompatibility and Section 7(2) Considerations (Subsidiary)

Even if one were to consider the Section 7 general rule rather than Section 13, the Court applied the incompatibility test derived fro

Case Syllabus (G.R. No. 191644)

Nature of the Case and Relief Sought

Special civil action for certiorari and prohibition filed on April 7, 2010.
Petitioner (Dennis A.B. Funa) challenged the constitutionality of respondent Alberto C. Agra’s concurrent designation as Acting Secretary of Justice and Acting Solicitor General.
Relief sought: declaration that Agra’s concurrent appointments/designations were prohibited by the Constitution and therefore void.

Parties and Relevant Chronology (Antecedents)

Petitioner: Dennis A.B. Funa — taxpayer, concerned citizen and lawyer; petitioner had previously litigated similar public-law matters.
Respondent: Hon. Alberto C. Agra — admitted to holding simultaneously two acting positions: Acting Secretary of Justice and Acting Solicitor General.
Petitioner’s alleged chronology:
- March 1, 2010: President Gloria M. Arroyo appointed Agra Acting Secretary of Justice following Secretary Agnes VST Devanadera’s resignation to run for Congress.
- March 5, 2010: President Arroyo designated Agra as Acting Solicitor General in a concurrent capacity.
- April 7, 2010: Petitioner filed the suit.
- During pendency: President Benigno S. Aquino III appointed Jose Anselmo I. Cadiz as Solicitor General; Cadiz assumed office on August 5, 2010.
Agra’s version:
- January 12, 2010: While Government Corporate Counsel, Agra was designated Acting Solicitor General in place of Devanadera, who had been appointed Secretary of Justice.
- March 5, 2010: President Arroyo designated him Acting Secretary of Justice after Devanadera tendered her resignation to run for Congress; Agra relinquished Government Corporate Counsel post; pending appointment of his successor, he continued to perform duties as Acting Solicitor General.
Irrespective of differing accounts, Agra admitted to concurrently holding both acting positions; the constitutional question therefore became ripe for resolution.

Central Legal Issue

Did Agra’s designation as Acting Secretary of Justice, concurrently with his position as Acting Solicitor General, violate the constitutional prohibition against holding dual or multiple offices by Members of the Cabinet and their deputies and assistants (Section 13, Article VII of the 1987 Constitution)?

Constitutional and Statutory Provisions Cited

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; further bars practicing other professions, participating in business, or financial interests in government contracts, franchises, or special privileges; requires avoidance of conflict of interest.
Section 7, paragraph (2), Article IX-B, 1987 Constitution:
- General rule for appointive officials: 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 its instrumentalities.
Administrative Code of 1987:
- Identifies the powers and functions of the Department of Justice (DOJ) and the Office of the Solicitor General (OSG); specifies OSG is attached to DOJ but is independent and autonomous (sections cited in the decision).
Republic Act No. 9417:
- Strengthened OSG and vested Solicitor General with a cabinet rank and parity in qualifications, rank, prerogatives, salaries, allowances, benefits and privileges with the Presiding Justice of the Court of Appeals.

Petitioner’s Principal Arguments

The constitutional prohibition under Section 13, Article VII applies equally to acting or temporary designations as it does to permanent appointments; temporariness does not create an exception.
Acting Secretaries are Members of the Cabinet and are therefore bound by Section 13’s strict prohibition.
The Office of the Solicitor General is independent and autonomous and is not an ex officio appendage of the DOJ; Agra’s appointment to Acting Solicitor General required a separate designation and therefore was not ex officio.
Relied on prior decisions (Funa v. Ermita; Civil Liberties Union v. Executive Secretary; Public Interest Center, Inc. v. Elma) to support the strict reading of Section 13.
Alleged violation of the Administrative Code of 1987 that mandates OSG autonomy and independence.

Respondents’ Principal Arguments

Agra’s concurrent designations were temporary or acting assignments that merely conferred additional duties and did not constitute “holding” two offices in the strict constitutional sense.
An appointment must be regular and permanent to be covered by the constitutional prohibition; mere designation is insufficient.
Alternatively, Agra’s continued service as Acting Solicitor General after designation as Acting Secretary of Justice constituted a hold-over to prevent vacancy and ensure continuity until a successor was elected and qualified.
During the hold-over period, Agra did not receive salaries or emoluments from the OSG after March 5, 2010.
The OSG’s independence and autonomy are defined by statutory powers and functions, not by the personal identity of the officeholder; DOJ’s authority over OSG is limited to budgetary matters.

Justiciability, Standing, and Mootness: Court’s Preliminary Considerations

The requisites of judicial review were satisfied: an actual case or controversy existed, petitioner’s standing as taxpayer/concerned citizen/lawyer was deemed proper in light of prior jurisprudence and the transcendental importance of the issue, the constitutional question was timely raised and formed the lis mota of the case.
The Court recognized petitioner’s locus standi under precedents (including Funa v. Villar and David) that allow a liberal approach to standing for matters of transcendental import.
Although the intervening appointment and assumption of Solicitor General Cadiz during pendency could have made the controversy moot, the Court invoked well-established exceptions to deciding moot cases:
- Grave violation of the Constitution;
- Situation of exceptional character and paramount public interest;
- Need to formulate controlling principles to guide Bench, Bar and public;
- Capable of r