Can OSG be a lawyer of Comelec commissioners, chair in disbarment case?
Can OSG be lawyer of Comelec
commissioners, chair in disbarment case?
This question of whether the Office of the Solicitor General (OSG) can be allowed to be the lawyer of the commissioners and chairman of the Commission on Elections (COMELEC) arose after the State's counsel filed its entry of appearance and sought an additional time to file the comment of those charged in the disbarment case filed by Alab ng Mamahayag (ALAM) against Sixto S. Brillantes Jr, et al.
On 29 July 2013, ALAM filed a motion to prohibit the OSG from acting as the lawyer of these Comelec officials, contending that the suit for disbarment is personal to these officials and that the State or the People can never be affected by whatever decision that may be had in the same disbarment proceedings.
Briefly, ALAM filed a disbarment case against Chairman Brillantes, then Commissioner Rene V. Sarmiento, then Commissioner Armando C. Velasco, Commssioner Lucenito N. Tagle, Commissioner Elias R. Yusoph and Commissioner Christian Robert S. Lim after they voted to remove the name of ALAM from the official PCOS ballot.
It is recalled that on January 4, 2013 ALAM was allowed at first to take part in the raffle to determine placements of partylist candidates in the PCOS ballot. ALAM drew Slot No. 34. On January 7, 2013, these officials voted to pass Resolution No. 9604 removing ALAM from the PCOS ballot on the ground that it did not qualify on the basis of Comelec Resolution No. 9591 passed on December 19, 2012.
For that act of removing ALAM from the PCOS ballot, it filed the disbarment complaint, contending that the act of removing ALAM from the ballot constituted contempt to the Status Quo Order of the Supreme Court, gross ignorance of the law if they ignored the SQO or grave misconduct if they deliberately violated the SQ.
That act is also considered by ALAM as a display of arrogance in power, oppression, boastfulness, and power-tripping for self-aggrandizement.
On December 4, 2012, the Supreme Court ordered a Status Quo ordering ALAM and the Comelec not to disturb the state of affairs before the issuance by the Comelec of the final order disqualifying ALAM.
Among those that were present prior to the Comelec final order disqualifying ALAM was Comelec Resolution No. 9467 passed on June 15, 2012, which gives the material right to partylist groups that were disqualified by the Comelec but managed to file a petition before the Supreme Court.
The material right found in Resolution No. 9467 is the entitlement to take part in the raffle for the slots in the PCOS ballot.
If Resolution No. 9467 was among those matters that were outstanding before the disqualification of ALAM and before the issuance of the Status Quo order, that should be followed by the respondents in the disbarment complaint.
But what the respondents did during the period covered by the SQ was they passed a new resolution (Resolution No. 9591) to amend Resolution No. 9467.
Meanwhile, in his reply, Commissioner Lim attempted to distinguish between accreditation and registration. He argued that he must not be held liable because ALAM was not yet registered and the directive of Resolution No. 9467 only covered partylist groups that were not accredited.
This argument of Commissioner Lim was rebuked by ALAM by reminding him that when ALAM filed its petition before the Comelec, it filed for both registration and accreditation as a partylist group seeking to participate in the May 13, 2013 elections.
Nevertheless, the position of ALAM is that the OSG cannot act as the lawyer of Brillantes and company.
Generally, ALAM argued that disbarment seeks is personal to Brillantes, et al and the State or the People can never be affected by the judgment of disbarment, or suspension from the practice of law, or warning or reprimand.
To know the detailed reasons, the motion to disqualify the OSG from acting as the lawyer of Brillantes, et al, is posted below:
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REPUBLIC OF THE PHILIPPINES
Supreme Court
THIRD DIVISION
ALAB NG
MAMAMAHAYAG
(ALAM)
represented by
ATTY.
BERTENI CATALUNA CAUSING,
Complainant
-versus- A. C. No. 9735
COMMISSION
ON ELECTIONS
(COMELEC)
CHAIRMAN SIXTO S.
BRILLIANTES,JR.,
COMMISSIONER
RENE V.
SARMIENTO, COMMISSIONER
LUCENITO
N. TAGLE, COMMISSIONER
ARMANDO
C. VELASCO, COMISSIONER
ELIAS
R. YUSOPH AND COMMISSIONER
CHRISTIAN
ROBERT S. LIM,
Respondents.
x------------------------------------------------------x
Motion to Prohibit
Office of the
Solicitor General
and
Declare Right to
Comment as Waived
Complainant
Alab ng Mamamahayag (ALAM), by the undersigned counsel and its president,
respectfully moves that the Office of the Solicitor General (OSG) be prohibited
from acting as the lawyer of all respondents other than Commissioner Robert
Christian S. Lim who filed his comment through a private lawyer.
On
July 24, 2013, the undersigned president of the complainant received the “Motion
for Additional Time to File Comment” filed by the OSG representing as the
counsel for all respondents other than Commissioner Lim.
It
was the first time for the undersigned to learn that the OSG is lawyering for
these respondents.
Nevertheless,
it is moved that the OSG be prohibited from appearing as the counsel of the
respondents other than Commissioner Lim.
And
because of the fact that until today the other respondents have not filed their
comment or answer as directed and the fact that the reprsentation here by the
OSG is NULL and VOID, the other respondents are now deemed to have waived their
right to file their respective comments.
Suffice
it to say that the OSG is the lawyer of the State and its people as a whole.
It
can never be a lawyer of officials who are sued for acts done in the
performance of their official duties if these acts are patently illegal,
erroneous, cotemptuous, and unduly prejudicial to persons and the suit is
praying for reliefs that are personal to the same officials.
In
this case of disbarment, the judgment may be acquittal of the respondents, or
conviction whose punishment may be disbarment, suspension from the practice of
law or even a warning or reprimand. In
any case, the State and the People can never be called to account for whatever
judgment that may be had in this case.
For
sure, the State or the People of the Philippines can never be adjudged guilty
or otherwise for grave misconduct in the application of the knowledge of law in
the official positions being held by the respondents.
For
sure, the State or the People cannot be required to suffer if all the
respondents in this case are adjudged guilty of a violation of the Lawyer’s
Oath and cannot be punished with disbarment or suspension from the practice of
law.
Under
this clear indication that no State’s or People’s interest is at stake in this
disbarment proceedings and the unquestionable premise that the OSG is the
lawyer of the State and its People, it is therefore enjoined from defending any
public official, impeacheable or otherwise, in a disbarment proceedings seeking
sanctions against such officials in so far as their privilege to practice law
is concerned.
It
is the position of the undersigned that any lawyer does not cease to be a
lawyer if he happens to be appointed or elected in a public office. He is always in a constant injunction to
observe faithfully the Lawyer’s Oath.
And it is with more reason that a lawyer favored with such a position of
public trust must at all times be a shining example of what a lawyer should
be. This position is punctuated by the
fact that if he is a judge, a justice, a senator, a congressman, a
constitutional officer, he is enjoying the privilege of being exempt from the
Mandatory Continuing Legal Education (MCLE) seminar.
Neither
can the OSG draw authority from the facts that they respondents here happen to
be officials who can be removed only by impeachment and their qualifications to
the offices of the Commission include the membership to the Bar in good
standing.
While
it is an interest of the State and the People to defend the Constitution to
enforce the provision that members and chairman of the Comelec can be removed only
by means of impeachment only, that duty to defend the Constitution is not yet
at issue here.
Concededly, the
issue on offense against the impeachent rule can arise only if the decision in
this case disbars all the respondents and their disbarment will result in a
situation that will remove them from the list of members of the Bar and the
composition of the Comelec becomes a commission where the majority are not
members of the Bar.
Until
that situation comes, there is no interest of the State or the People to talk
about.
In all eventualities,
crisis situations will surely be addressed competently because at the end of
the day, when the respondents are found guilty, it is still the Supreme Court
En Banc that will decide what to do with Constitutional questions. Remember, it is the En Banc that has the sole
or exclusive authority disbar or sanction a lawyer.
So that on the
impeachment issue, the OSG cannot get authority to act as the lawyer of the
respondents.
When former Chief
Justice Renato C. Corona was impeached and tried, the OSG cannot represent him.
When former
President Joseph Estrada was impeached and trieed, the OSG cannot represent
him.
When officials of
the Development Bank of the Philippines (DBP), including members of the Board
of Directors, were charged with administrative and criminal charges before the
Ombudsman, the OSG did not act as their lawyer.
The issues in this case stemmed from the corporate act of DBP. It only happened that the corporate act was
assailed by the OSG as illegal or improper.
When police or
military officials are charged with criminal violations, including the infamous
Atimonan Massacre and the most recent controversy where Ozamis gang leader
Ricky Cadavero was killed, the OSG cannot represent them even if the defense is
performance of official function.
The bottom line is:
If the suit is one where the relief prayed for is a personal liability of a
public official, like sanctions out of the violation of the practice of law, the
OSG has no business to interfere.
So that it is
correct for Commissioner Robert Christian Lim to be represented by a private
lawyer.
This position of
the complainant is strongly supported by the case Director Celso Pascual vs Hon.
Orlando Beltran, G.R. No. 129318, October 27, 2006. In this case, the OSG sought to represent a
director on the ground that the suit for damages arose from official acts of
the director. The Supreme Court upheld
the disqualification of the OSG, considering that the liability that may be
adjudged was for the personal account of the director and not the State’s or
the People’s.
The Pascual
vs Beltran case says:
To repeat, the Solicitor General is the lawyer of the government,
any of its agents and officials in any litigation, proceeding, investigation or
matter requiring the services of a lawyer. The exception is when such
officials or agents are being charged or are being civilly sued for damages
arising from a felony.
This rationale must apply with greater force in the case at bar. Here, the private respondent filed an action
for damages arising from Malicious Administrative Suit against petitioner with
the RTC of Tuguegarao, Cagayan, Branch IV. Petitioner was sued for damages
arising from the administrative complaint he filed against respondent with the
DOTC, for Conduct Grossly Prejudicial to the Best Interest of the Service/Gross
Insubordination/Violation of Reasonable Office Rules and Regulations, Gross
Discourtesy in the Course of Official functions and Gross Dishonesty. Private
respondent was subsequently exonerated by the DOTC for failure of the
petitioner to present substantial evidence to prove his charges against private
respondent.
Also, an action for recovery of damages for the commission of an
injury to a person is a personal action. A personal action is one
brought for the recovery of personal property, for the enforcement of some
contract of recovery of damages for its breach, or for the recovery of damages
for the commission of an injury to the person or property.
More so, any liability the petitioner may be
held to account for on the occasion of such civil suit is for his own account
and the State is not liable for the same. Thus, the OSG has no authority to
represent him in such civil suit for damages.
Nevertheles,
it prudent to restate here the Reply of the complainant to the comment of
Commissioner Robert Christian Lim, with typhographical errors already corrected. The said Reply is hereunder reproduced.
“On the first point
raised by respondent Commissioner Lim, that the only remedy available for
petitioner ALAM is impeachment, it is untenable.
“Respondent
Lim cannot compare himself and his position as a Commissioner of the Commission
on Elections as against the person and position of Associate Justice Marvic
M.V. F. Leoven.
“In
the case of a Commissioner of the Comelec, it is not so material that he or she
must be a member of the Philippine Bar. Membership to Philippine Bar is
indispensable only when disbarment will result in the total membership of the
Commision having lawyers as constituting the minority and non-lawyers the
majority.
“In
the present membership of the Comelec, only one, Maria Gracia Cielo M. Padaca,
is a non-lawyer. The rest, including the two new appointees, are lawyers.
“So
that a removal of respondent from the Philippine Bar membership does not
disqualify him from continuing to serve as a Commissioner.
“In
the case of Associate Justice Leonen, he must always be a member of the
Philippine bar. So that removing Justice Leonen’s bar membership cannot be done because doing so would go
against the Constitution that prescribes that removal of a member of the
Supreme Court can only be done by impeachment.
“On
the second point raised by respondent Commissioner Lim, he attempted to get an
excuse by citing the distinction between accreditation and registration.
“This
position of Commissioner Robert Christian Lim is again incorrect.
“He
failed to notice that when complainant Alab ng Mamamahayag (ALAM) filed its
petition for registration, it was also at the same time applying for
accreditation to the 2013 partylist elections.
“So
that when the Comelec denied the petition for registration and accreditation of
ALAM, it also denied at the same time the petition for accreditation.
“And
when ALAM filed its petition before the Supreme Court, it was also petitioning
to be acrredited for the 2013 partylist elections.
“It
is relevant to cite first paragrapgh of ALAM’s petition, to wit:
‘Petitioner Alab ng
Mamamahayag (ALAM), by the undersigned law firm, respectfully submits this
Petition for Registration and/ or Accreditation as a Sectoral Partylist
Organization.’
“Respondent
Lim also attempted to borrow support from the Supreme Court’s decision in Atong
Paglaum, et.al, vs. Commission on Elections, G. R. No. 203766, 02 April
2013, where it is stated that ALAM and 12 others “shall not participate in the
13th May 2013 elections.”
“This
is not relevant to the issue at hand.
“This
is because it was just natural for the SC to rule as such because it recognized
the physical impossibility of including ALAM and 12 others into the PCOS ballot
because all 52 million of the ballots were all printed already by the time the
decision in the same case came out.
“Furthermore,
the SC has yet to rule on the motion for Contempt insisted by ALAM to be
decided, as the only contention in the Motion for reconsideration filed by ALAm
in Atong
Paglaum case.
“In
short, the respondent cannot be permitted to escape liability after excersiing
his powers as a Commissioner in a manner that is arrogant, whimsical,
capricious and wanton.”
MOREOVER, it is wished to be underscored
that the complainant filed this complaint because it wants to stop the culture
where officials become bull-headed, arrogant, boastful, power-tripper, and oppressive
when vested with some exclusive powers to act on applications or requests of anybody
from the citizens.
The Prayer
Wherefore, it is respectfully prayed
that the Office of the Solicitor General (OSG) be prohibited from acting as the
counsel of the respondents.
Further,
it is prayed that the respondents other than Commissioner Robert Christian Lim
be declared to have waived their right to comment or answer the Complaint for
Disbarment.
Other
reliefs just and equittable are also prayed for. Manila, July 29, 2013
RENTA PE
CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
By:
BERTENI
CATALUÑA CAUSING
IBP No. 876498 / Manila IV / 10-01-2013
PTR No. 1435314 / Manila / 10-01-2013
Roll No. 60944 / MCLE No. IV -0007338 / 08-10-2012
Lack of manpower and time compelled
the service of copy of this Reply by
means of registered mails.
BERTENI CATALUNA CAUSING
Cc:
OFFICE OF
THE SOLICITOR GENERAL
134
Amorsolo St., Legaspi Vilage, Makati
HON.
CHAIRMAN SIXTO S. BRILLANTES JR.
Palacio
del Gobernador Building
General
Luna St. Corner Andes Soriano Jr. Avenue
Intramuros,
Manila
HON.
COMMISSIONER RENE V. SARMIENTO
Care
of: Comelec, Palacio del Gobernador Building
General
Luna Street corner Andres Soriano Jr. Avenue
Intramuros,
Manila
HON.
COMMISSIONER LUCENITO TAGLE
Palacio
del Gobernador Bldg
General
Luna Street corner Andres Soriano jr. Avenue
Intramuros,
Manila
HON.
COMMISSIONER ARMANDO C. VELASCO
Care
of: Comelec, Palacio del Gobernador Building
General
Luna Street corner Andres Soriano Jr. Avenue
Intramuros,
Manila
HON.
COMMISSIONER ELIAS R. YUSOPH
Palacio
del Gobernador Building
General
Luna Street corner Andres Soriano jr. Avenue
Intramuros,
Manila
NOTICE
OF HEARING
THE CLERK OF COURT
EN BANC
Supreme
Court
Padre
Faura St., Manila
OFFICE OF
THE SOLICITOR GENERAL
134
Amorsolo St., Legaspi Vilage, Makati
HON.
CHAIRMAN SIXTO S. BRILLANTES JR.
Palacio
del Gobernador Building
General
Luna St. Corner Andes Soriano Jr. Avenue
Intramuros,
Manila
HON.
COMMISSIONER RENE V. SARMIENTO
Care
of: Comelec, Palacio del Gobernador Building
General
Luna Street corner Andres Soriano Jr. Avenue
Intramuros,
Manila
HON.
COMMISSIONER LUCENITO TAGLE
Palacio
del Gobernador Bldg
General
Luna Street corner Andres Soriano jr. Avenue
Intramuros,
Manila
HON.
COMMISSIONER ARMANDO C. VELASCO
Care
of: Comelec, Palacio del Gobernador Building
General
Luna Street corner Andres Soriano Jr. Avenue
Intramuros,
Manila
HON.
COMMISSIONER ELIAS R. YUSOPH
Palacio
del Gobernador Building
General
Luna Street corner Andres Soriano jr. Avenue
Intramuros,
Manila
Greetings!
Please submit this Motion for the
consideration of the Court En Banc in the soonest possible time.
BERTENI
CATALUÑA CAUSING
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