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Saturday, March 23, 2013

CAN ONE CABINET MEMBER ASSUME CONCURRENTLY AS DOJ SECRETARY AND SOLICITOR GENERAL?


May one be validly appointed and assume as DOJ Secretary and concurrently as Solicitor General? Does it matter if either or both appointments are merely temporary or in acting capacity?

The answers to both are in the negative. Pursuant to Sec. 13, Article VII of the Constitution, “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”.

To claim exception from this prohibition on double or multiple holding of offices involving the executive officials mentioned, one needs to establish that the concurrent designations and assumptions are expressly allowed by the Constitution itself. The only two exceptions against the holding of multiple offices are: (1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice President to become a member of the Cabinet; and (2) posts occupied by Executive officials specified in Section 13, Article VII without additional compensation in ex officio capacities as provided by law and as required by the primary functions of the officials’ offices.

However, none of these exceptions as embodied in the Constitution apply to justify the concurrent assumption of one as DOJ Secretary (DOJ) and Solicitor General (OSG). The appointment to the post of Solicitor General cannot not merely be by virtue of one’s office (ex-officio) as DOJ Secretary, and vice versa. Similarly, the concurrent designations cannot be justified by arguing that the powers and functions of the OSG are required by the primary functions or included by the powers of the DOJ, and vice versa. By law and by the nature of their powers and functions, these two offices are independent and distinct from each other. The OSG, while attached to the DOJ, is not a constituent unit of the latter, as, in fact, the Administrative Code of 1987 decrees that the OSG is independent and autonomous. With the enactment of Republic Act No. 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 Court of Appeals.

The prohibition on double or multiple appointments applies regardless of whether either or both the appointments are merely temporary or in acting capacity. This is so because the constitution does not make a distinction as to the nature of appointment. Secondly, the purpose of the prohibition is to prevent the concentration of powers in the Executive Department officials, specifically the President, the Vice-President, the Members of the Cabinet and their deputies and assistants. To construe differently is to open the veritable 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 of Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-owned or controlled corporations. (FUNA vs. ACTING SECRETARY OF JUSTICE ALBERTO AGRA, G.R. No. 191644, February 19, 2013)

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