Saturday, July 27, 2013

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:

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx





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
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521

                   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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