The petitioner alleges that President Gloria Macapagal-Arroyo appointed Agra as the Acting Secretary of Justice, and also designated Agra as the Acting Solicitor General in a concurrent capacity.
Petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer, commenced this suit to challenge the constitutionality of Agra’s concurrent appointments or designations, claiming it to be prohibited under Section 13, Article VII of the 1987 Constitution.
During the pendency of the suit, President Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General.
Agra, on his part, alleged that he was then the Government Corporate Counsel when President Arroyo designated him as the Acting Solicitor General and designated him also as the Acting Secretary of Justice. He said, 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.
Agra has admitted to holding the two offices concurrently in acting capacities.
Whether or not 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.
The petition is meritorious.
The designation of Agra as 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 Section 13, Article VII of the 1987 Constitution.
At the center of the controversy is the correct application of Section 13, Article VII of the 1987 Constitution, viz:
Section 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. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987 Constitution, to wit:
Section 7. x x x
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 government-owned or controlled corporations or their subsidiaries.
Thus, 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.
In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.
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, 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.
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 Court ANNULS AND VOIDS the designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a concurrent capacity with his position as the Acting Solicitor General for being unconstitutional and violative of Section 13, Article VII of the 1987 Constitution.