Funa v. Agra, G.R. No.

191644, February 19, 2013

Facts:

Agra was then the Government Corporate Counsel when Pres Arroyo designated him as the
Acting Solicitor General in place of former Sol Gen Devanadera, who has been appointed as
the Secretary of Justice. Again, Agra was designated as the Acting Secretary in place of
Secretary Devanadera when the latter resigned. Agra then relinquished his position as
Corporate Counsel and continued to perform the duties of an Acting Solicitor General.

Funa, a concerned citizen, questioned his appointment. Agra argued that his concurrent
designations were merely in atemporary capacity. Even assuming that he was holding
multiple offices at the same time, his designation as an Acting Sol Gen is merely akin to a
hold-over, so that he never received salaries and emoluments for being the Acting Sol Gen
when he was appointed as the Acting Secretary of Justice.

Issue 1: W/N Agra’s designation as Acting Secretary of Justice is valid

No. The designation of Agra as Acting Secretary of Justice concurrently with his position of
Acting Solicitor General violates the constitutional prohibition under Article VII, Section 13
of the 1987 Constitution.

It is immaterial that Agra’s designation was in an acting or temporary capacity. Section 13

plainly indicates that the intent of the Framers of the Constitution is to impose a stricter
prohibition on the President and the Cabinet Members in so far as holding other offices or
employments in the Government or in GOCCs is concerned. 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, because the objective of Section 13 is to
prevent the concentration of powers in the Executive Department officials, specifically the
President, the Vice-President, the Cabinet Members and their deputies and assistants.

Issue 2: W/N Agra may concurrently hold the positions by virtue of the “hold-over principle”

No. Agra’s designation as the Acting Secretary of Justice was not in an ex officio capacity,
by which he would have been validly authorized to concurrently hold the two positions due
to the holding of one office being the consequence of holding the other.

Being included in the stricter prohibition embodied in Section 13, Agra cannot liberally apply
in his favor the broad exceptions provided in Article IX-B, Sec 7 (2) of the Constitution to
justify his designation as Acting Secretary of Justice concurrently with his designation as
Acting Solicitor General, or vice versa. It is not sufficient for Agra to show that his holding of
the other office was “allowed by law or the primary functions of his position.” To claim the
exemption of his concurrent designations from the coverage of the stricter prohibition under
Section 13, he needed to establish that his concurrent designation was expressly allowed by
the Constitution.

Issue 3: W/N the offices of the Solicitor General and Secretary of Justice is in an ex officio
capacity in relation to the other
No. The powers and functions of the Solicitor General are neither required by the primary
functions nor included in the powers of the DOJ, and vice versa. The OSG, while attached to
the DOJ, is not a constituent of the latter, as in fact, the Administrative Code of 1987
decrees that the OSG is independent and autonomous. 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, allowances, benefits and privileges as those of Presiding
Judges of the Court of Appeals

AYTONA VS. CASTILLO

FACTS:
On December 29, 1961, Outgoing President Carlos Garcia appointed petitioner Dominador
Aytona as ad interim Governor of the Central Bank. Aytona took the corresponding oath. On
the same day, at noon, President-elect Diosdado Macapagal assumed office; and on the
next day, he issued administrative order no. 2 recalling, withdrawing, and cancelling all ad
interim appointments made by former President Garcia. There were all-in all, 350 midnight
or last minute appointments made by the former President Garcia. On January 1, President
Macapagal appointed Andres Castillo as ad interim Governor of the Central Bank. Aytona
instituted a case (quo warranto) against Castillo, contending that he was validly appointed,
thus the subsequent appointment to Castillo by the new President, should be considered
void.

ISSUE:
Whether or not the 350 midnight appointments of former President Garcia were valid.

RULING:
No. After the proclamation of the election of President Macapagal, previous President Garcia
administration was no more than a care-taker administration. He was duty bound to prepare
for the orderly transfer of authority the incoming President, and he should not do acts which
he ought to know, would embarrass or obstruct the policies of his successor. It was not for
him to use powers as incumbent President to continue the political warfare that had ended
or to avail himself of presidential prerogatives to serve partisan purposes. The filling up
vacancies in important positions, if few, and so spaced to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointee's qualifications may undoubtedly be permitted. But the issuance of 350
appointments in one night and planned induction of almost all of them a few hours before
the inauguration of the new President may, with some reason, be regarded by the latter as
an abuse Presidential prerogatives, the steps taken being apparently a mere partisan effort
to fill all vacant positions irrespective of fitness and other conditions, and thereby deprive
the new administration of an opportunity to make the corresponding appointments

Normally, when the President makes appointments the consent of the Commission on
Appointments, he has benefit of their advice. When he makes ad interim appointments, he
exercises a special prerogative and is bound to be prudent to insure approval of his
selection either previous consultation with the members of the Commission or by thereafter
explaining to them the reason such selection. Where, however, as in this case, the
Commission on Appointments that will consider the appointees is different from that existing
at the time of the appointment2 and where the names are to be submitted by successor,
who may not wholly approve of the selections, the President should be doubly careful in
extending such appointments. Now, it is hard to believe that in signing 350 appointments in
one night, President Garcia exercised such "double care" which was required and expected
of him; and therefore, there seems to be force to the contention that these appointments
fall beyond the intent and spirit of the constitutional provision granting to the Executive
authority to issue ad interim appointments

Result: Because of the haste and irregularities, some judges of first instance qualified for
districts wherein no vacancies existed, because the incumbents had not qualified for other
districts to which they had been supposedly transferred or promoted

BUT THOSE WHO QUALIFIED, THEIR POSITIONS CANNOT BE REVOKED. ONLY THOSE WHO
ARENT QUALIFIED, THEIR POSITIONS CAN BE REVOKED

In re: Valenzuela
A.M. No. 98-5-01-SC November 9, 1998
Narvasa, C.J.

Facts:

On March 30, 1998, The President signed appointments of Hon. Mateo

Valenzuela and Hon. Placido Vallarta as Judges of RTC-Bago City and Cabanatuan City,
respectively. These appointments were deliberated, as it seemed to be expressly prohibited
by Art 7 Sec 15 of the Constitution:

Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.”

A meeting was held on March 9, 1998 by the Judicial and Bar Council to discuss the
constitutionality of appointments to the Court of Appeals (CA) in light of the forthcoming
1998 Presidential elections. Senior Associate Justice Florenz Regalado, Consultant of the
Council and Member of the 1986 Constitutional Commission, was in the position that
“election ban had no application to the CA based on the Commission’s records”.
This hypothesis was then submitted to the President for consideration together with the
Council’s nominations for 8 vacancies in the CA.

The Chief Justice (CJ) received on April 6, 1998, an official communication from
the Executive Secretary transmitting the appointments of 8 Associate Justices of CA duly
signed on March 11, 1998 (day immediately before the commencement of the ban on
appointments), which implies that the President’s Office did not agree with the hypothesis.

The President, addressed to the JBC, requested on May 4, 1998 the transmission
of the “list of final nominees” for the vacancy in view of the 90 days imposed by the
Constitution (from Feb 13, date present vacancy occurred). In behalf of the JBC, CJ sent
the reply on May 6 that no session has been scheduled after the May elections for the
reason that they apparently did not share the same view (hypothesis) proposed by the
JBC shown by the uniformly dated March 11, 1998 appointments. However, it appeared
that the Justice Secretary and the other members of the Council took action without waiting
for the CJ reply. This prompted CJ to call for a meeting on May 7. On this day, CJ received
a letter from the President in reply of the May 6 letter where the President expressed his
view that Article 7 Sec 15 only applied to executive appointments, the whole article being
entitled “EXECUTIVE DEPT”. He posited that appointments in the Judiciary have special and
specific provisions, as follows:

Article 8 Sec 4

“The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices.
It may sit en banc or in its discretion, in divisions of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence thereof.”

Article 8 Sec 9

“The Members of the Supreme Court and judges in lower courts shall be appointed by the
President from the list of at least three nominees prepared by the Judicial and Bar Council
for every vacancy. Such appointments need no confirmation.

On May 12, CJ received from Malacañang, the appointments of the 2 Judges of

the RTC mentioned. Considering the pending proceedings and deliberations on this matter,
the Court resolved by refraining the appointees from taking their oaths. However, Judge
Valenzuela took oath in May 14, 1998 claiming he did so without knowledge on the on-going
deliberations. It should be noted that the originals of the appointments for both judges had
been sent to and received by the CJ on May 12 and is still in the latter’s office and had not
been transmitted yet. According to Judge Valenzuela, he did so because of the May 7
Malacañang copy of his appointment.

In construing Article 7 and 8: when there are no presidential elections, Art. 8

shall apply where vacancies in SC shall be filled within 90 days otherwise prohibition in Art.
7 must be considered where the President shall not make any appointments. According to
Fr. Bernas, the reason for prohibition is in order not to tie the hands of the incoming Pres
through midnight appointments.

Issue:

whether, during the period of the ban on appointments imposed by Section 15,
Article VII of the, Constitution, the President is nonetheless required to fill vacancies in the
judiciary, in view of Sections 4(1) and 9 of Article VIII; whether he can make appointments
to the judiciary during the period of the ban in the interest of public service.

Held:

The provisions of the Constitution material to the inquiry at bar read as follows: 3

Sec. 15, Article VII:

Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.

Sec. 4 (1), Article VIII :

The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It
may sit en banc or in its discretion, in divisions of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence thereof.

Sec. 9, Article VIII :

The members of the Supreme Court and judges in lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for,
every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the
submission of the list.

During the period stated in Section 15. Article VII of the Constitution — “(t)wo
months immediately before the next presidential elections and up to the end his term” —
the President is neither required to make appointments to the courts nor allowed to do so;
and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill
vacancies in the courts within the time frames provided therein unless prohibited by Section
15 of Article VII. It is not noteworthy that the prohibition on appointments comes into effect
only once every six years.

Section 15, Article VI is directed against two types of appointments: (1) those made
for buying votes and (2) those made for partisan considerations. The first refers to those
appointments made within the two months preceding a Presidential election and are similar
to those which are declared elections offenses in the Omnibus Election Code, viz.:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:

(a) Vote-buying and vote-selling. — (1) Any person who gives, offer or promises money or
anything of value gives or promises any office or employment, franchise or grant, public or
private, or makes or offers to make an expenditure, directly or indirectly, or cause an
expenditure to be made to any person, association, corporation, entity, or community in
order to induce anyone or the public in general to vote for or against any candidate or
withhold his vote in the election, or to vote for or against any aspirant for thenomination or
choice of a candidate in a convention or similar selection process of a political party.

xxx xxx xxx

(g) Appointment of new employees, creation of new position, promotion, or giving salary
increases. — During the period of forty-five days before a regular election and thirty days
before a regular election and thirty days before a special election, (1) any head, official or
appointing officer of a government office, agency or instrumentality, whether national or
local, including government-owned or controlled corporations, who appoints or hires any
new employee, whether provisional, temporary, or casual, or creates and fills any new
position, except upon prior authority of the Commission. The Commission shall not grant the
authority sought unless, it is satisfied that the position to be filled is essential to the proper
functioning of the office or agency concerned, and that the position shall not be filled in a
manner that may influence the election.

The second type of appointments prohibited by Section 15, Article VII consist of the
so-called “midnight” appointments. There may well be appointments to important
positions which have to be made even after the proclamations of a new President. Such
appointments, so long as they are “few and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointee’s qualifications,” can be made by the outgoing President.

Section 15 may not unreasonably be deemed to contemplate not only “midnight”

appointments — those made obviously for partisan reasons as shown by their number and
the time of their making — but also appointments of the Presidential election.

The exception in the same Section 15 of Article VII allows only the making of
temporary appointments to executive positions when continued vacancies will prejudice
public service or endanger public safety. Obviously, the article greatly restricts the
appointing power of the President during the period of the ban.

Considering the respective reasons for the time frames for filling vacancies in the
courts and the restriction on the President’s power of appointments, it is the Supreme
Court’s view that, as a general proposition, in case of conflict, the former should yield to the
latter. Surely, the prevention of vote-buying and similar evils outweighs the need for
avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary
vacancies can abide the period of the ban which, incidentally and as earlier pointed out,
comes to exist only once in every six years. Moreover, those occurring in the lower courts
can be filled temporarily by designation. But prohibited appointments are long-lasting and
permanent in their effects. They may, as earlier pointed out, their making is considered an
election offense.

To be sure, instances may be conceived of the imperative need for an appointment,

during the period of the ban, not only in the executive but also in the Supreme Court. This
may be the case should the membership of the Court be so reduced that it will have no
quorum, or should the voting on a particularly important question requiring expeditious
resolution be evenly divided. Such a case, however, is covered by neither Section 15 of
Article VII nor Sections 4 (1) and 9 of Article VIII.