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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