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L-51813-14 November 29, 1983 Hence, this petition for certiorari, mandamus and
prohibition with prayers, among others, that the Orders of
ROMULO CANTIMBUHAN, NELSON B. MALANA, and respondent judge, dated August 16, 1979 and
September 4, 1979, be set aside as they are in plain
ROBERT V. LUCILA, petitioners,
vs. violation of Section 34, Rule 138 of the Rules of Court
HON. NICANOR J. CRUZ, JR., Presiding Judge of the and/or were issued with grave abuse of discretion
Municipal Court of Paraaque, Metro Manila, and amounting to lack of jurisdiction. Upon motion, the Court,
FISCAL LEODEGARIO C. QUILATAN, respondents. on November 8, 1979, issued a temporary restraining
order "enjoining respondent judge and all persons acting
for and in his behalf from conducting any proceedings in
Froilan M. Bacungan and Alfredo F. Tadiar for Criminal Cases Nos. 58549 (People of the Philippines vs.
petitioners. Danilo San Antonio) and 58559 (People of the
Philippines vs. Rodolfo Diaz) of the Municipal Court of
The Solicitor General for respondents. Paraaque, Metro Manila on November 15, 1979 as
scheduled or on any such dates as may be fixed by said
respondent judge.
Appeal from the Order, dated August 16, 1979, of SEC. 34. By whom litigation
respondent Judge Nicanor J. Cruz, Jr., of the then conducted. In the court of a justice
Municipal Court of Paraaque, Metro Manila, disallowing of the peace a party may conduct his
the appearances of petitioners Nelson B. Malana and litigation in person, with the aid of an
Robert V. Lucila as private prosecutors in Criminal Cases agent or friend appointed by him for
Nos. 58549 and 58550, both for less serious physical that purpose, or with the aid of an
injuries, filed against Pat. Danilo San Antonio and Pat. attorney. In any other court, a party
Rodolfo Diaz, respectively, as well as the Order, dated may conduct his litigation personally
September 4, 1979, denying the motion for or by aid of an attorney, and his
reconsideration holding, among others, that "the fiscal's appearance must be either personal
claim that appearances of friends of party-litigants should or by a duly authorized member of the
be allowed only in places where there is a scarcity of bar.
legal practitioner, to be well founded. For, if we are to
allow non-members of the bar to appear in court and
prosecute cases or defend litigants in the guise of being Thus, a non-member of the Philippine Bar a party to
friends of the litigants, then the requirement of an action is authorized to appear in court and conduct his
membership in the Integrated Bar of the Philippines and own case; and, in the inferior courts, the litigant may be
the additional requirement of paying professional taxes aided by a friend or agent or by an attorney. However, in
for a lawyer to appear in court, would be put to naught. " the Courts of First Instance, now Regional Trial Courts,
(p. 25, Rollo) he can be aided only by an attorney.
Records show that on April 6, 1979, petitioner Romulo On the other hand, it is the submission of the
Cantimbuhan filed separate criminal complaints against respondents that pursuant to Sections 4 and 15, Rule
Patrolmen Danilo San Antonio and Rodolfo Diaz for less 110 of the Rules of Court, it is the fiscal who is
serious physical injuries, respectively, and were docketed empowered to determine who shall be the private
as Criminal Cases Nos. 58549 and 58550 in the then prosecutor as was done by respondent fiscal when he
Municipal Court of Paraaque, Metro Manila. objected to the appearances of petitioners Malana and
Lucila. Sections 4 and 15, Rule 110 of the Rules of Court
provide: t.hqw
Petitioners Nelson B. Malana and Robert V. Lucila, in
1979, were senior law students of the U.P.assistance to
the needy clients in the Office of the Legal Aid. Thus, in SEC. 4. Who must prosecute criminal
August 1979, petitioners Malana and Lucila filed their actions. All criminal actions either
separate appearances, as friends of complainant- commenced by complaint or by
petitioner Cantimbuhan. Herein respondent Fiscal information shall be prosecuted under
Leodegario C. Quilatan opposed the appearances of said the direction and control of the fiscal.
petitioners, and respondent judge, in an Order dated
August 16, 1979, sustained the respondent fiscal and xxx xxx xxx
disallowed the appearances of petitioners Malana and
Lucila, as private prosecutors in said criminal cases.
Likewise, on September 4, 1979, respondent Judge SEC. 15. Intervention of the offended
issued an order denying petitioners' motion for party in criminal action. Unless the
reconsideration. offended party has waived the civil
action or expressly reserved the right
to institute it separately from the
criminal action, and subject to the
provisions of section 4 hereof, he may Fernando, C.J., Makasiar, Concepcion Jr., Guerrero,
intervene, personally or by attorney, Abad Santos, Plana, Escolin and Gutierrez, Jr., JJ.,
in the prosecution of the offense. concur.
WHEREFORE, the Orders issued by respondent judge I vote, therefore, to uphold the Order of respondent
dated August 16, 1979 and September 4, 1979 which Municipal Judge, dated August 16, 1979, disallowing the
disallowed the appearances of petitioners Nelson B. appearances of petitioners as private prosecutors in the
Malana and Robert V. Lucila as friends of party-litigant abovementioned criminal cases. Orders set aside.
petitioner Romulo Cantimbuhan. are hereby SET ASIDE
and respondent judge is hereby ordered to ALLOW the Fernando, C.J., Makasiar, Concepcion, Jr., Guerrero,
appearance and intervention of petitioners Malana and Abad Santos, Plana, Escolin and Gutierrez, Jr., JJ.,
Lucila as friends of Romulo Cantimbuhan. Accordingly, concur.
the temporary restraining order issued on November 8,
1979 is LIFTED.
SO ORDERED.1wph1.t
Separate Opinions
witness in Criminal Cases Nos. 58549 and 58550 of the
then Municipal Court of Paraaque, Metro Manila, is not
AQUINO, J., dissenting: a "party" within the meaning of the said Rule. The parties
in a criminal case are the accused and the People. A
complaining witness or an offended party only intervene
Senior law students should study their lessons anti in a criminal action in respect of the civil liability. The
prepare for the bar. They have no business appearing in case of Laput and Salas vs. Bernabe, 55 Phil. 621, is
court. authority only in respect of the accused, as a "party", in a
criminal case.
MELENCIO-HERRERA, J., dissenting:
Sections 4 and 15, Rule 110 of the Rules of Court, being
Section 34, Rule 138 of the Rules of Court specifically the more specific provisions in respect of criminal cases,
provides that it is "a party" who may conduct his litigation should take precedence over Section 34, Rule 138 and
in person, with the aid of an agent or friend appointed by should be controlling (Bagatsing vs. Hon. Ramirez, 74
him for that purpose in the Court of a Justice of the SCRA 306 [1976]). Section 4 provides that all criminal
Peace. Romulo Cantimbuhan, as the complaining actions shall be prosecuted under the direction and
witness in Criminal Cases Nos. 58549 and 58550 of the control of the Fiscal, while Section 15 specifically
then Municipal Court of Paraaque, Metro Manila, is not provides that the offended party may intervene,
a "party" within the meaning of the said Rule. The parties personally or by attorney, in the prosecution of the
in a criminal case are the accused and the People. A offense.
complaining witness or an offended party only intervene
in a criminal action in respect of the civil liability. The I vote, therefore, to uphold the Order of respondent
case of Laput and Salas vs. Bernabe, 55 Phil. 621, is Municipal Judge, dated August 16, 1979, disallowing the
authority only in respect of the accused, as a "party", in a appearances of petitioners as private prosecutors in the
criminal case. abovementioned criminal cases.
Sections 4 and 15, Rule 110 of the Rules of Court, being De Castro, Teehankee, JJ., concurs with the dissent of
the more specific provisions in respect of criminal cases, Assoc. Justice Herrera.
should take precedence over Section 34, Rule 138 and
should be controlling (Bagatsing vs. Hon. Ramirez, 74
SCRA 306 [1976]). Section 4 provides that all criminal
actions shall be prosecuted under the direction and
control of the Fiscal, while Section 15 specifically
provides that the offended party may intervene,
personally or by attorney, in the prosecution of the
offense.
Separate Opinions
Court, grounded on pure questions of law, with However, in an Order dated February 1, 2002,
P r a y e r f o r P r e l i mi n a r y I n j u n c t i o n a s s a i l i n g t h e t h e M e T C d e n i e d p e r mi s s i o n f o r petitioner to
Resolution dated May 3, 2002 promulgated by a p p e a r a s p r i va t e p r o s e c u t o r o n t h e g r o u n d t h a t
the Regional Trial Court (RTC), Branch 116, C i r c u l a r N o . 1 9 g o v e r n i n g l i mi t e d l a w s t u d e n t
Pasay City, in Civil Case No. 02 -0137, which practice in conjunction with Rule 138 -A of the
d e n i e d t h e i s s u a n c e o f a w r i t o f p r e l i mi n a r y Rules of Court (Law Student Practice Rule)
injunction against the Metropolitan Trial Court should take precedence over the ruling of the
(MeTC), Branch 45, Pasay City, in Criminal Court laid down in Cantimbuhan; and set the
[1]
Case No. 00-1705; and the RTCs Order dated case for continuation of trial. [3]
June 5, 2002 denying the Motion for
On February 13, 2002, petitioner filed
Reconsideration. No writ of preliminary
before the MeTC a Motion for Reconsideration
injunction was issued by this Court .
seeking to reverse the February 1, 2002 Order
In an Order dated March 4, 2002, Pending the resolution of the foregoing Motion
the MeTC denied the Motion for for Reconsideration before the RTC, the
On April 2, 2002, the petitioner filed before the Reconsideration dated June 7, 2002 with
for Certiorari and Mandamus with Prayer for 2002 Denial Order of the said court, on the
P r e l i mi n a r y Injunction and Temporary strength of Bar Matter No. 730, and a Motion to
and the public respondent MeTC. of C r i mi n a l Case No. 00-1705 pending the
A f t e r h e a r i n g t h e p r a y e r f o r p r e l i mi n a r y RTC.
injunction to restrain public On June 5, 2002, the RTC issued its Order
respondent MeTC Judge from proceeding with denying the petitioners Motion for
Resolution dated May 3, 2002, resolved to deny Likewise, in an Order dated June 13, 2002,
the issuance of an injunctive writ on the ground the MeTC denied the petitioners Second Motion
that the cri me of Grave Threats, the subject of for Reconsideration and his Motion to Hold in
prosecuted de oficio, there being no claim for had already denied the Entry of Appearance of
On May 9, 2002, the petitioner filed before the the following errors:
Thus, a law student Section 34 of Rule 138. The court a quo must
may appear before an inferior
have been confused by the fact that petitioner
r e f e r r e d t o h i ms e l f a s a l a w s t u d e n t i n h i s e n t r y e s p i o n a g e , v i o l a t i o n o f n e u t r a l i t y, f l i g h t t o a n
of appearance. Rule 138-A should not have been enemy c o u n t r y, and crime against popular
used by the courts a quo in denying permission representation. [9] The basic rule applies in the
t o a c t a s p r i va t e p r o s e c u t o r a g a i n s t p e t i t i o n e r f o r i n s t a n t c a s e , s u c h t h a t w h e n a c r i mi n a l a c t i o n i s
t h e s i mp l e r e a s o n t h a t R u l e 1 3 8 - A i s n o t t h e i n s t i t u t e d , t h e c i vi l a c t i o n f o r t h e r e c o v e r y o f
s h a l l b e d e e m e d i n s t i t u t e d w i t h c r i mi n a l a c t i o n ,
Section 34, Rule 138 is clear that appearance unless the offended party waives the civil
before the inferior courts by a non -lawyer is action, reserves the right to institute it
Matter No. 730, by virtue of Section 34, Rule The petitioner is correct in stating that there
supervision of a lawyer before inferior courts. No. 00-1705, it follows that the civil aspect
Petitioner further argues that the RTC arising from Grave Threats is deemed instituted
c i vi l l i a b i l i t y ma y f l o w f r o m t h e c r i m e o f G r a v e p r o s e c u t o r ma y r i g h t f u l l y i n t e r v e n e t o p r o s e c u t e
a p r i va t e p r o s e c u t o r i s n o t p o s s i b l e .
It is clear from the RTC Decision that is GRANTED. The assailed Resolution and
no such conclusion had been intended by the Order of the Regional Trial Court, Branch
court, the RTC stated in its Decision that there ASIDE. The Metropolitan Trial Court, Branch
was no claim for civil liability by the private 45, Pasay City is DIRECTED to ADMIT the
c o mp l a i n a n t f o r d a ma g e s , a n d t h a t t h e r e c o r d s o f E n t r y o f A p p e a r a n c e o f p e t i t i o n e r i n C r i mi n a l
the case do not provide for a claim for Case No. 00-1705 as a private prosec utor under
a p p e a r a n c e a s p r i va t e p r o s e c u t o r a p p e a r s t o b e prosecutor.
legally untenable.
No pronouncement as to costs.
a l s o c i vi l l y l i a b l e e x c e p t i n i n s t a n c e s w h e n n o
a c t u a l d a ma g e r e s u l t s f r o m a n o f f e n s e , s u c h a s
assigned to the writer of the opinion of the
MA. ALICIA AUSTRIA-MARTINEZ Courts Division.
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
ATTESTATION
CONSUELO YNARES-SANTIAGO
Associate Justice
C h a i r p e r s o n , T h i r d D i vi s i o n
C E R T I F I C A T I O N
The above-named petitioners were The award of 10% to Quintin Muning who is
complainants in Case No. 72-ULP-Iloilo not a lawyer according to the order, is sought
entitled, "PAFLU et al. vs. Binalbagan Isabela to be voided in the present petition.
Sugar Co., et al." After trial, the Court of
Industrial Relations rendered a decision, on Respondent Muning moved in this Court to
29 March 1961, ordering the reinstatement dismiss the present petition on the ground of
with backwages of complainants Enrique late filing but his motion was overruled on 20
Entila and Victorino Tenazas. Said decision January 1965. 1 He asked for reconsideration,
became final. On 18 October 1963, Cipriano but, considering that the motion contained
Cid & Associates, counsel of record for the averments that go into the merits of the case,
winning complainants, filed a notice of this Court admitted and considered the motion
attorney's lien equivalent to 30% of the total for reconsideration for all purposes as
backwages. On 22 November 1963, Atty. respondent's answer to the petitioner for
Atanacio Pacis also filed a similar notice for a review. 2 The case was considered submitted for
reasonable amount. Complainants Entila and decision without respondent's brief.3
Tenazas on 3 December 1963, filed a
manifestation indicating their non-objection to Applicable to the issue at hand is the principle
an award of attorney's fees for 25% of their enunciated in Amalgamated Laborers'
backwages, and, on the same day, Quentin Association, et al. vs. Court of Industrial
Muning filed a "Petition for the Award of Relations, et al., L-23467, 27 March
Services Rendered" equivalent to 20% of the 1968, 4 that an agreement providing for the
division of attorney's fees, whereby a non-lawyer imports the existence of an attorney-client
union president is allowed to share in said fees relationship as a condition to the recovery of
with lawyers, is condemned by Canon 34 of attorney's fees. Such a relationship cannot
Legal Ethics and is immoral and cannot be exist unless the client's representative in court
justified. An award by a court of attorney's fees be a lawyer. Since respondent Muning is not
is no less immoral in the absence of a contract, one, he cannot establish an attorney-client
as in the present case. relationship with Enrique Entila and Victorino
Tenezas or with PAFLU, and he cannot,
The provision in Section 5(b) of Republic Act therefore, recover attorney's fees. Certainly
No. 875 that public policy demands that legal work in
representation of parties litigant should be
In the proceeding before the entrusted only to those possessing tested
Court or Hearing Examiner qualifications and who are sworn, to observe
thereof, the parties shall not the rules and the ethics of the profession, as
be required to be represented well as being subject to judicial disciplinary
by legal counsel ... control for the protection of courts, clients and
the public.
is no justification for a ruling, that the person
representing the party-litigant in the Court of On the present issue, the rule in American
Industrial Relations, even if he is not a lawyer, jurisdictions is persuasive. There, it is stated:
is entitled to attorney's fees: for the same
section adds that But in practically all
jurisdictions statutes have now
it shall be the duty and been enacted prohibiting
obligation of the Court or persons not licensed or
Hearing Officer to examine admitted to the bar from
and cross examine witnesses practising law, and under
on behalf of the parties and to statutes of this kind, the great
assist in the orderly weight of authority is to the
presentation of evidence. effect that compensation for
legal services cannot be
thus making it clear that the representation recovered by one who has not
should be exclusively entrusted to duly been admitted to practice
qualified members of the bar. before the court or in the
jurisdiction the services were
The permission for a non-member of the bar rendered. 5
to represent or appear or defend in the said
court on behalf of a party-litigant does not by No one is entitled to recover
itself entitle the representative to compensation for services as an
compensation for such representation. For attorney at law unless he has
Section 24, Rule 138, of the Rules of Court, been duly admitted to practice
providing ... and is an attorney in good
standing at the time. 6
Sec. 24. Compensation of
attorney's agreement as to The reasons are that the ethics of the legal
fees. An attorney shall be profession should not be violated; 7 that acting
as an attorney with authority constitutes
entitled to have and recover
contempt of court, which is punishable by fine or
from his client no more than a imprisonment or both, 8 and the law will not
reasonable compensation for assist a person to reap the fruits or benefit of an
his services, ... act or an act done in violation of law; 9 and that if
were to be allowed to non-lawyers, it would
leave the public in hopeless confusion as to
whom to consult in case of necessity and also Sec. 6. Unfair Labor Practice
leave the bar in a chaotic condition, aside from cases Appeals. Any
the fact that non-lawyers are not amenable to person aggrieved by any order
disciplinary measures. 10 of the Court may appeal to the
Supreme Court of the
And the general rule above- Philippines ...,
stated (referring to non-
recovery of attorney's fees by since more often than not the individual
non-lawyers) cannot be unionist is not in a position to bear the
circumvented when the financial burden of litigations.
services were purely legal, by
seeking to recover as an Petitioners allege that respondent Muning is
"agent" and not as an engaged in the habitual practice of law before
attorney. 11 the Court of Industrial Relations, and many of
them like him who are not licensed to practice,
The weight of the reasons heretofore stated registering their appearances as
why a non-lawyer may not be awarded "representatives" and appearing daily before
attorney's fees should suffice to refute the the said court. If true, this is a serious situation
possible argument that appearances by non- demanding corrective action that respondent
lawyers before the Court of Industrial court should actively pursue and enforce by
Relations should be excepted on the ground positive action to that purpose. But since this
that said court is a court of special jurisdiction; matter was not brought in issue before the
such special jurisdiction does not weigh the court a quo, it may not be taken up in the
aforesaid reasons and cannot justify an present case. Petitioners, however, may file
exception. proper action against the persons alleged to
be illegally engaged in the practice of law.
The other issue in this case is whether or not
a union may appeal an award of attorney's WHEREFORE, the orders under review are
fees which are deductible from the backpay of hereby set aside insofar as they awarded 10%
some of its members. This issue arose of the backwages as attorney's fees for
because it was the union PAFLU, alone, that respondent Quintin Muning. Said orders are
moved for an extension of time to file the affirmed in all other respects. Costs against
present petition for review; union members respondent Muning.
Entila and Tenazas did not ask for extension
but they were included as petitioners in the Concepcion, C.J., Makalintal, Zaldivar, Castro,
present petition that was subsequently filed, it Fernando, Teehankee, Barredo, Villamor and
being contended that, as to them (Entila and Makasiar, JJ. concur.
Tenazas), their inclusion in the petition as co-
petitioners was belated.
(
S
The Solicitor General filed a withdraw his appearance without the consent of
substantially similar pleading in the the Republic or the PCGG unless the court
cases where the Republic is a party. authorizes his withdrawal. Since there was no
such court authority, the Solicitor General's
As a result of such withdrawal of appearance, withdrawal of appearance in said several cases
is null and void, as it constitutes an act against a
the PCGG hired forty (40) private lawyers,
mandatory law and hence, it may be attacked
nineteen (19) of whom are trial lawyers. They
collaterally. Neither may the Solicitor General
would receive a monthly compensation of at withdraw on the authority of Orbos v. Civil
least P10,000.00 plus appearance fee of Service Commission 8 wherein this Court held:
P1,700.00 in actual trial and/or P500.00 if trial
is postponed. 3
In the discharge of this task
the Solicitor General must see
Petitioner contends that since the Solicitor to it that the best interest of
General's withdrawal of appearance was the government is upheld
made without any reason, it implied that it was within the limits set by law. . .
"within the absolute discretion" of said public
official. Section 1 of Presidential Decree No.
xxx xxx xxx
478 and Section 35 of the Administrative
Code of 1987, however, mandatorily require
the Solicitor General to stand in the place of, There are cases where a
and act for the Republic and the PCGG in government agency declines
court. Therefore, the Solicitor General has "no the services of the Solicitor
discretion to reject by withdrawing" as counsel General or otherwise fails or
for said entities. refuses to forward the papers
of the case to him for
appropriate action. . .
Applying the ruling of this Court with respect
to a fiscal in Sta. Rosa Mining
Co. v. Zabala, 4 the petitioner further states that: The Court finds and so holds
"Similarly, it is the duty of the Solicitor General to that this practice should be
appear for the Republic and the PCGG, hence stopped. To repeat, the
regardless of his personal convictions or Solicitor General is the lawyer
opinions, he must proceed to discharge his duty of the government, any of its
(not withdraw, which is equivalent to refusal to agents and officials in any
prosecute), and let the court decide the merits of litigation, proceeding,
the case." 5 investigation or matter
requiring the services of a
Moreover, petitioner avers that the Solicitor lawyer. The exception is
General cannot withdraw his appearance when such officials or agents
"with reservation" nor can he file his are being charged criminally or
"comment/observation on the are being civilly sued for
incident/matters" after such withdrawal damages arising from a
because by ceasing to appear as counsel, he felony. His services cannot be
loses his standing in court. Unless a case lightly rejected, much less
involves the constitutionality of a treaty, law, ignored by the officer or
ordinance or executive order for which Rule 3 officials concerned.
Section 23 of the Rules of Court 6 mandates
his appearance, the Solicitor General is not Indeed, the assistance of the
authorized to appear therein after his withdrawal Solicitor General should be
as counsel inasmuch as he himself is not a welcomed by the parties. He
party-litigant. should be given full support
and cooperation by any
Furthermore, under Section 26, of Rule agency or official involved in
138, 7 the Solicitor General may not unilaterally litigation. He should be
enabled to faithfully discharge relationship should continue
his duties and responsibilities sans PCGG demurring, and
as the government advocate. the Solicitor General
And he should do no less for withdrawing. Absent such
his clients. His burden of resignation or abolition, the
assisting in the fair and just Solicitor General has to
administration of justice is prosecute or defend the said
clear. cases to the best of his ability.
This Court does not expect the Hence, petitioner contends, the PCGG acted
Solicitor General to waver in without or in excess of jurisdiction in hiring
the performance of his private lawyers as substitutes for the Solicitor
duty. As a matter of fact, the General. Nowhere in Executive Order Nos. 1,
Court appreciates the 2 and 14 does it appear that the PCGG is
participation of the Solicitor authorized to hire said lawyers. Since the
General in many proceedings Solicitor General is named by law as the
and his continued fealty to his lawyer for all government agencies, the hiring
assigned task. He should not of private lawyers by such agencies is
therefore desist from impliedly excluded. Thus, by employing
appearing before this Court private lawyers, the PCGG is creating a public
even in those cases he finds office and naming a public officer. However, in
his opinion inconsistent with the absence of a law providing for the creation
the government or any of its of the office of PCGG counsel, said hired
agents he is expected to lawyers are usurpers or intruders whose acts
represent. The Court must be may be challenged in a collateral proceeding
advised of his position just as such as an action for prohibition.
well. (Emphasis supplied)
Similarly, petitioner asserts, prohibition will lie
The petitioner adds the following against the Commission on Audit considering
observations: 9 that any payment for the services of the
PCGG-hired lawyers would result in an
Therefore, this case militates unlawful expenditure of public funds.
more against the Solicitor Stressing the need to preserve the status
General than in his favor. For quo until the determination of his rights as a
if the government and its citizen and taxpayer, petitioner prays for the
officials cannot reject the issuance of temporary restraining order.
services of the Solicitor
General, neither may the latter Acting on the petition, however, the Court
select the case he would required the respondent to file their respective
represent by withdrawing in comments on the petition without granting the
some and retaining others. For prayer for a temporary restraining order. 10
unlike private lawyers who are
bound to their clients by In its comment, the Commission on Audit
contract and, therefore, can (COA) alleges that it has not allowed the
reject cases offered to them, disbursement of funds to pay for the services
the Solicitor General and of PCGG-hired private lawyers. It points out
PCGG are wedded to each the fact that under COA Circular No. 89-299
other by statute for better and dated March 21, 1989, the COA has
for worse. And only a divorce, withdrawn the pre-audit of transactions
through the abolition of PCGG entered into by national government agencies
or resignation of the Solicitor pursuant to the constitutional provision that
General, can untie the marital the COA has the exclusive authority to "define
knot. Otherwise, the the scope of its audit and examination, to
establish the techniques and methods The PCGG further asserts that the hiring of
required therefor." 11 Neither has the COA private lawyers is "not an ultra vires" act but a
allowed in post-audit the disbursements of funds "means by which (it) can effectively exercise
in payment of the services of the hired private its powers." It emphasizes the fact that it hired
lawyers. Moreover, under COA Circular No. 86- private lawyers "only after the Officer of the
255 dated April 2, 1986, the hiring of private Solicitor General had unilaterally withdrawn its
lawyers by government agencies and appearance" for the PCGG in the various
instrumentalities is prohibited unless there is pending PCGG-instituted cases. Its own
prior written conformity of the Solicitor General Litigation Division, which was constituted after
or the Government Corporate Counsel, as the the Solicitor General's withdrawal, is "sorely
case may be, as well as the written concurrence undermanned" but it has to contend with
of COA.
"affluent and influential individuals and
entities" who can "afford to hire skilled lawyers
For its part, the PCGG, through Commissioner and organize vast litigation networks." The
Maximo A. Maceren and lawyer Eliseo B. PCGG tried to seek the assistance of the
Alampay, asserts in its comment that the Department of Justice and the Office of the
scope of its authority under Executive Orders Government Corporate Counsel but only the
Nos. 1, 2 and 14 is broad enough to include former sent two additional prosecutors to
the authority to engage the services of private handle its cases. 14
lawyers, if necessary, for the fulfillment of its
mandate. While such authority is not
The PCGG clarifies that its powers are
expressly stated in said executive orders, "it
circumscribed not only by the executive orders
must be deemed necessarily implied in and
aforementioned but also by the inherent police
subsumed under the expressly enumerated
power of the State. By hiring private lawyers, it
powers of the Commission." 12
was merely trying to assist the President of
the Philippines in protecting the interest of the
The PCGG contends that its power under State. As such, it was acting as an alter ego of
Section 1 of Executive Order No. 14 to "file the President and therefore, it was the
and prosecute all cases investigated by it" Executive which determined the necessity of
includes "the grant of discretion to the engaging the services of private prosecutors.
Commission in determining the manner of Contending that "overwhelming necessity"
filing and prosecuting its cases including the impelled it to hire private lawyers, the PCGG
matter of who, in particular, will control and avers that inasmuch as the Central Bank of
supervise the prosecution of said cases." The the Philippines or the Philippine National Bank
phrase "with the assistance of the Office of may engage the services of private lawyers,
the Solicitor General and other government with more reason may it be allowed to hire
agencies" simply means that the Solicitor private prosecutors after it was abandoned by
General is called upon to render assistance to the Solicitor General in the prosecution of the
the PCGG and whether or not such discretion ill-gotten wealth cases. Consequently, "the
is required by the Commission is a matter of Solicitor General's withdrawal of assistance is
discretion on its part. Such provision does not tantamount to his tacit approval of the
preclude the PCGG from engaging the PCGG's hiring of private prosecutors in
services of private lawyers in the same way replacement of the solicitors handling the said
that it is "clearly authorized to hire civil cases." 15
accountants, appraisers, researchers and
other professionals as it performs its
The PCGG concludes that the
functions." Since, upon the dictates of legal
reasonableness of the compensation for its
and practical necessity, it has hired lawyers in
hired lawyers can hardly be questioned
the United States and in Switzerland, "it may
considering the expertise of said lawyers and
similarly hire Filipino lawyers in prosecuting its
the complexity of the cases they would be
Philippine cases." 13
handling for the PCGG. Thus, the prayer for a
preliminary injunction must be denied
otherwise "the harm that would be done would
be far greater than the perceived mischief Justices that the sequestration
petitioner seeks to prevent." 16 had earlier been lifted, with a
PCGG resolution, the
Solicitor General Francisco I. Chavez inhibits document, to boot (Razon
himself from appearing in this case case). Then, again, OSG
"considering that as far as the Office of the argued, even before this
Solicitor General (OSG for brevity) is Honorable Court, that an ill-
concerned, the subject is a closed matter gotten asset had
among the OSG, the PCGG and the "mysteriously" disappeared,
Courts." 17 In the comment filed by Assistant only to be informed by the
Solicitor General Edgardo L. Kilayko and Honorable Court, that a PCGG
Solicitor Iderlina P. Pagunuran, the OSG sets Commissioner had earlier by
out at length the history of the PCGG from its resolution authorized the
creation until the filing in the Sandiganbayan of disposition of the asset
thirty-nine (39) " prima facie cases" for ill-gotten (COCOFED case). All the
wealth against former President Marcos and his instances need not be
cronies. As suits and countersuits stemmed from enumerated here, as they are
the original thirty-nine (39) civil cases, "the OSG not meat and substance, even
had been put to a tremendous task and thus as OSG is rendered thereby a
invariably in urgent need of being consulted or laughing stock in its
informed by the PCGG of the facts and professionalism.
circumstances material to the prosecution and
progress not only of the original 39 civil cases,
but also of all kinds of "incidents." As to matters that are of great
pith and moment, suffice it to
say that the recent Benedicto
Nonetheless, the OSG lawyers faced the
"compromise" agreement, not
challenge and the odds if only to live up to
to mention the SMC-UCPB
their task as "the best lawyers there are in the
Compromise settlement,
country." The OSG further explains: 18
is sub judice or under
advisement not only of the
On many a time, however a Sandiganbayan but also of this
time, however, the lack of the Honorable Court in separate
above-mentioned consultation "incidents," and suffice it to
or information resulted in state that the relationship,
situations that rendered the obtaining between the
OSG unavoidably incapable of Government offices/agencies
performing its functions and and the Office of the Solicitor
duties as Lawyer of the General as counsel, is not at
Government, not only as all like one that simply would
mandated upon it by law and obtain between private client
as spelled out in Orbos and private lawyer in private
v. CSC, G.R. No. 92561, practice, although constant
September 12, 1990, but also consultation and advice
in consonance with its office are sine qua non in both types
motto: "Integrity In Advocacy." of relationship. The
relationship is rather one,
Once the OSG argued before created as it is by law, where
the Sandiganbayan that an imposed upon OSG is the
asset was under responsibility to present to the
sequestration, only to be courts the position that will
informed by the adverse uphold the best interests of the
party waving a document People, the Government and
before the Sandiganbayan the State, albeit the same may
run counter to its client's The OSG maintains further that the instant
position or route of action. At petition does not present a case and
any rate, the PCGG through controversy as the petitioner himself does not
nationwide TV broadcast and even have a "court standing" and a "litigable
print media, publicly interest." All the petitioner seeks is an
announced that PCGG had "advisory opinion." The OSG asserts that the
disposed with or otherwise did "incident" (referring to the Solicitor General's
not need the legal services of withdrawal of appearance) should be
the Lawyer of the distinguished from that in JPC Enterprise,
Government, and thus OSG Inc. v. Court of Appeals, et al., 21 wherein the
descended, not the unmerited Assets Privatization Trust (APT) decided to
remark of having "abandoned" appear for itself because the law names the
the ill-gotten wealth cases, but Minister of Justice only as its ex oficio legal
the time-honored principle adviser while by itself it can file suits and
of impossibilium nulla obligatio institute proceedings and engage external
est, i.e., there is no obligation expertise in the fulfillment of its tasks. However,
to do impossible things (Lim since the APT has no personality of its own, it
Co Chui v. Paredes, 47 Phil. should have appeared through the Solicitor
463), without in any way General. The OSG argues that said "adversarial
incident" is not present in this case.
casting any aspersion on the
moral integrity of any
Commissioner or PCGG In his reply to the comments of the PCGG and
official, as made clear by the the OSG, the petitioner insists that although
Solicitor General to the as between the Solicitor General and the
President in a meeting with PCGG, this case may have been rendered
PCGG. moot and academic, as between him on the
one hand and the Solicitor General and the
PCGG on the other hand, a "real controversy"
Hence, in the light of all the
still exists and the issues raised herein have
foregoing circumstances, at
not ceased to exist either. Moreover, a
rock-bottom precisely so as
judgment of prohibition and mandamus would
not to prejudice "the interest of
have a "practical legal effect and can be
the Government" (Orbos), the
enforced." 22
Solicitor General withdrew as
counsel for PCGG in all said
cases by filing a notice of Citing Miguel v. Zulueta, 23 and Taada
24
"Withdrawal of Appearance v. Tuvera, petitioner asserts that he has a
with Reservation." standing in court because where a question of
public right is involved and the object of
the mandamus is the enforcement of a public
In arguing that the instant petition should be duty, the relator need not show any legal or
dismissed, the OSG contends that this case special interest in the result of the proceeding. It
has become moot and academic as this very is sufficient that, as a citizen, he is interested in
Court had resolved to allow the withdrawal of having the laws executed and the duty in
appearance of the Solicitor General in all the question enforced.
cases pending before it "with reservation,
conformably with PD No. 478, Executive The petitioner rebuts the PCGG's contention
Order No. 292, as well as the doctrine laid that its power to hire private lawyers may be
down in 'Orbos v. Civil Service Commission, implied from its expressly enumerated
et al.,' G.R. No. 92561, September 12, 1990, . powers. He asserts that since P.D. No. 478
. ." 19 For its part, the Sandiganbayan had also mandates that "the Solicitor General as law
resolved that "the appearance of the Solicitor office of the government with the duty to
General is deemed withdrawn to be substituted appear for the PCGG," no implication from the
by the PCGG's legal panel." 20 express powers of (the) PCGG can stand
against the language of P.D. No. 478. On the
other hand, the law regarding the PCGG and The resolution of the first issue laid down at
that regarding the Solicitor General should be the beginning of this ponencia hinges on
harmonized. 25 whether or not the Solicitor General may be
compelled by mandamus to appear for the
The Court considers these pleadings sufficient Republic and the PCGG. This issue is best
bases for resolving this petition and, on resolved by a close scrutiny of the nature and
account of the importance and imperativeness extent of the power and authority lodged by
of the issues raised herein, the filing of law on the Solicitor General.
memoranda by the parties is dispensed with.
At this juncture, a flashback on the statutory
We shall, first of all, confront a preliminary origins of the Office of the Solicitor General is
issue interposed by the OSG whether or in order. Incorporated in Act No. 136 dated
not this case has been rendered moot and June 11,
academic by this Court's resolution granting 1901 28 providing for the organization of courts
the Solicitor General's motion to withdraw in the Philippine Islands was Chapter III entitled
appearance as counsel in the several cases "The Attorney General." Section 40 states:
pending herein. It should be clarified that the
resolution had to be issued with the national There shall be an Attorney-
interest in mind. Time was of the essence and General for the Philippine
any hedging on the part of the PCGG and/or Islands, to be appointed by the
its counsel could, not merely set back but Philippine Commission . . .
prejudice, the government's all-out efforts to
recover ill-gotten wealth. The catalog of his duties includes the
following:
Notwithstanding the ostensible mootness of
the issues raised in a case, this Court has He shall prosecute or defend
never shirked from its symbolic function of therein all causes, civil and
educating bench and bar by formulating criminal, to which the
guiding and controlling principles, precepts, Government of the Philippine
doctrines and rules. 26 More so, if the case is of Islands, or any officer thereof,
such magnitude that certain legal ambiguities in his official capacity, is a
must be unravelled for the protection of the party . . . 29
national interest. 27
Section 41 further provides:
To allow the transcendental issue of whether
the OSG may withdraw its appearance in a There shall be an officer
cluster of cases of national import to pass into learned in the law to assist the
legal limbo simply because it has been Attorney-General in the
"mooted" would be a clear case of misguided performance of all his duties,
judicial self-restraint. This Court has called the Solicitor-General
assiduously taken every opportunity to lay who shall be appointed by the
down brick by brick the doctrinal infrastructure Commission . . . In case of a
of our legal system. Certainly, this is no time vacancy in the office of
for a display of judicial timorousness of the Attorney-General, or of his
kind which the Solicitor General is untimely absence or disability, the
exhibiting now. Solicitor-General shall have
power to exercise the duties of
Accordingly, we confront the issue conscious that office. Under the
of their far-reaching implications, not alone on supervision of the Attorney-
the instant case but on future ones as well, General, it shall be the
which the OSG will surely be called upon to especial duty of the Solicitor-
handle again and again. General to conduct and argue
suits and appeals in the assumed by the Secretary of
Supreme Court, in which the Justice. 35 Subsequently, the Bureau of Justice
Philippine Government is came to be known as the Office of the Solicitor
interested, and the Attorney- General, 36 headed by the Solicitor General. 37
General may, whenever he
deems it for the interest of the Parenthetically, these institutions were
Philippine Government, either patterned after the Office of Attorney-General,
in person conduct and argue created by the First U.S. Congress in the
any case in any court of the Judiciary Act of 1789 which called for a "meet
Philippine Islands in which the person, learned in the law, to act as Attorney-
Philippine Government is General for the U.S." 38 When the Department
interested or may direct the of Justice was established in 1870, the position
Solicitor General to do so. of Solicitor-General was created as an assistant
(Emphasis supplied) to the Attorney-General. 39 Over a century later,
their respective positions and functions remain
Six months later, a law was passed the same. The Attorney-General of the United
reorganizing the Office of the Attorney- States, appointed by the President with the
advice and consent of the Senate, is now the
General and providing for the appointment of
head of the Department of Justice. 40 In the
the said official and the Solicitor General by
same manner, a Solicitor General, learned in the
the Civil Governor and for an increase in their
law, is appointed to assist the Attorney-General
salaries. Their duties remained basically the in the performance of his duties. 41
same. 30
In contrast, the Solicitor-General of the
In the meantime, Act No. 222 was passed on Philippines, emerging from the shadow of the
September 5, 1901 providing for the Attorney-General and later, of the Secretary of
organization of, among others, the Justice, has come to his own. On July 20,
Department of Finance and Justice which 1948, Republic Act. No. 335, amending
embraced within its executive control the Section 1659 of the Administrative Code,
Bureau of Justice. 31 bestowed on him the rank of Undersecretary
of a Department. Subsequently, a series of
Under Act No. 2711, otherwise known as the amendatory laws designed to enlarge the
Administrative Code of 1917, the Bureau of complement of the Office of the Solicitor
Justice is specifically constituted "the law General was enacted 42 until on June 4, 1974,
office of the Government of the Philippine by virtue of Presidential Decree No. 478, its
Islands and by it shall be performed duties pivotal role in the government became clearly
requiring the services of a law officer." 32 Its defined and delineated.
chief officials are the Attorney-General and his
assistant, the Solicitor General. 33 During the martial law years, President
Ferdinand E. Marcos leaned heavily on his
As principal law officer of the Solicitor General to provide legal
Government, the Attorney- underpinnings of his official acts. Reflective of
General shall have authority to the tremendously enhanced power of the
act for and represent the official and the position was Executive Order
Government of the Philippine No. 454 enacted on September 23, 1975,
Islands, its officers, and conferring upon the Solicitor General the rank
agents in any official of a member of the Cabinet "with all the rights,
investigation, proceeding, or honors and privileges pertaining to the
matter requiring the services position." Said executive order was
of a lawyer. 34 superseded by Executive Order No. 473 dated
August 12, 1976 "making the Solicitor
In 1932, the office of the Attorney-General Generala member of the Cabinet." These
was phased out and his functions were executive orders were capped by Executive
Order No. 552 dated August 14, 1979 the Supreme
elevating the OSG into a Ministry with the Court and the
same powers and functions defined in P.D. Court of
Nos. 478 and 1347. Appeals in all
criminal
P.D. 478 became, as it were, the Magna proceedings;
Carta of the Office of the Solicitor General. represent the
After the change of administration, or on July Government
25, 1987, President Corazon C. Aquino and its officers
signed into law Executive Order No. 292 in the Supreme
instituting the Administrative Code of 1987. Court, the
Under Book IV, Title III, Chapter 12 thereof, Court of
the Office of the Solicitor General is described Appeals, and
as an "independent and autonomous office all other courts
attached to the Department of Justice." or tribunals in
Headed by the Solicitor General, "who is the all civil actions
principal law officer and legal defender of the and special
Government," the Office shall have a Legal proceedings in
Staff composed of fifteen (15) Assistant which the
Solicitors General and such number of Government or
Solicitors and Trial Attorneys "as may be any officer
necessary to operate the Office which shall thereof in his
divided into fifteen (15) divisions. 43 Among its official capacity
powers and functions are the following which are is a party.
relevant to the issues:
(2) Investigate,
Sec. 35. Powers and initiate court
Functions. The office of the action, or in
Solicitor General shall any manner
represent the Government of proceed
the Philippines, its agencies against any
and instrumentalities and its person,
officials and agents in any corporation or
litigation, proceeding, firm for the
investigation or matter enforcement of
requiring the services of a any contract,
lawyer. When authorized by bond,
the President or head of the guarantee,
office concerned, it shall also mortgage,
represent government owned pledge or other
or controlled corporations. The collateral
Office of the Solicitor General executed in
shall constitute the law office favor of the
of the Government, and, as Government.
such, shall discharge duties Where
requiring the services of a proceedings
lawyer. (Emphasis supplied.) It are to be
shall have the following conducted
specific powers and functions: outside of the
Philippines, the
(1) Represent Solicitor
the General may
Government in employ
counsel to the services of
assist in the any
discharge of government
the official or
aforementione employees in
d the pursuit of
responsibilities. his tasks.
In one case where a fiscal manifested before Like the Attorney-General of the United States
the trial court that he would not prosecute the who has absolute discretion in choosing
case in court for insufficiency of evidence after whether to prosecute or not to prosecute or to
his motion to dismiss had been denied, this abandon a prosecution already started, 52 our
own Solicitor General may even dismiss, and requiring all persons in and outside of the
abandon, discontinue or compromise suit either Philippines who are in possession of said
with or without stipulations with other properties to make full disclosure of the same
party. 53 Abandonment of a case, however, does to the PCGG.
not mean that the Solicitor General may just
drop it without any legal and valid reason for the
On April 11, 1986, the PCGG promulgated its
discretion given him is not unlimited. 54 Its
Rules and Regulations. A pertinent provision
exercise must be, not only within the parameters
set by law but with the best interest of the State
states:
as the ultimate goal. Such are reflected in its
policies, thus: Sec. 10. Findings of the
Commission. Based on the
The discretionary power of the evidence adduced, the
attorney for the United States Commission shall determine
in determining whether a whether there is reasonable
prosecution shall be ground to believe that the
commenced or maintained asset, property or business
may well depend upon matters enterprise in question
of policy wholly apart from any constitute ill-gotten wealth as
question of probable cause. described in Executive Orders
Although as member of the Nos. 1 and 2. In the event of
bar, the Attorney for the United an affirmative finding, the
States is an officer of the Commission shall certify the
court, he is nevertheless an case to the Solicitor General
executive official of the for appropriate action in
Government, and it is as an accordance with law.
officer of the executive Business, properties, funds,
department that he exercises and other assets found to be
a discretion as to whether or lawfully acquired shall be
not there shall be a immediately released and the
prosecution in a particular writ of sequestration, hold or
case. . . . 55 freeze orders lifted
accordingly. (Emphasis
supplied)
The first executive order ever issued by
President Aquino on February 28, 1986,
created the PCGG. It announced the Thereafter, or on May 7, 1986, Executive
government's policy of recovering all ill-gotten Order No. 14 defining the jurisdiction over
wealth amassed by former President Marcos, cases involving such ill-gotten wealth was
his immediate family, relatives and close issued, it contains the following provisions:
associates. It charged the PCGG with the
"task of assisting the President" in regard to Sec. 1. Any provision of law to
the recovery of all ill-gotten wealth, the contrary notwithstanding,
investigation of "such cases of graft and the Presidential Commission
corruption as the President may assign" to it, on Good Government, with the
and the adoption of safeguards to ensure that assistance of the Solicitor
corruption may not be again committed with General and other government
impunity. agencies, is hereby
empowered to file and
This issuance was followed by Executive prosecute all cases
Order No. 2 dated March 12, 1986 freezing all investigated by it under
assets and properties of Marcos, his family Executive Order No. 1, dated
and cronies; prohibiting their transfer, February 28, 1986, and
conveyance, encumbrance or concealment, Executive Order No. 2, dated
March 12, 1986, as may be because he may not be licensed to appear
warranted by its finding. before the courts in a foreign jurisdiction.
Sec. 3. Civil suits for Upon receipt of a case certified to him, the
restitution, reparation of Solicitor General exercises his discretion in
damages, or indemnification the management of the case. He may start the
for consequential damages, prosecution of the case by filing the
forfeiture proceedings appropriate action in court or he may opt not
provided for under Republic to file the case at all. He may do everything
Act No. 1379, or any other civil within his legal authority but always
actions under the Civil Code or conformably with the national interest and the
other existing laws, in policy of the government on the matter at
connection with Executive hand.
Order No. 2 dated March 12,
1986, may be filed separately After filing a case, he may even move for its
from and proceed dismissal in the event that, along the way, he
independently of any criminal realizes that prosecuting the case would not
proceedings and may be serve the government's purposes. In other
proved by a preponderance of words, because he was appointed to the
evidence. (Emphasis position on account of his qualification as a
supplied). man "learned in the law," the Solicitor General
is obligated to perform his functions and to
All these legal provisions ineluctably lead to perform them well. He may not, however,
no other conclusion but that under the law of abdicate his function through an arbitrary
its creation and the complementary Rules, the exercise of his discretion. We find that a
law office of the PCGG, as it is for the rest of withdrawal of appearance on flimsy or petty
the Government, is the Office of the Solicitor grounds is tantamount to withdrawing on no
General. Although the PCGG is "empowered grounds at all and to a dereliction of duty.
to file and prosecute all cases investigated by
it" under Executive Orders No. 1 and 2, it The Office of the Solicitor General repeatedly
does not thereby oust the Office of the invoked the ruling in Orbos v. Civil Service
Solicitor General from its lawful mandate to Commission, 57 which hardly constitutes
represent the Government and its agencies in authority to uphold its position with respect to
any litigation, proceeding, investigation or the withdrawal of the Solicitor General in the
matter requiring the services of a lawyer. instant case. On the contrary, in said case, this
Moreover, such express grant of power to Court struck down private respondent's motion
PCGG does not imply that it may abdicate to disqualify the OSG from appearing for
such power and turn over the prosecution of petitioner Department of Transportation and
the cases to private lawyers whom it may Communications Secretary Orbos. At the risk of
decide to employ. In those instances where being repetitious, the parties were reminded that
proceedings are to be conducted outside of under Section 1 of Presidential Decree No. 478
the Philippines, the Solicitor General,
continuing to discharge his duties, may
employ counsel to assist him, 56 particularly
The Office of the Solicitor under the Office of the President, he being a
General shall represent the part of the Executive Department.
Government of the Philippines,
its agencies and In the case at bar, the reason advanced by
instrumentalities and its the Solicitor General for his motion to
officials and agents in any withdraw his appearance as lawyer for the
litigation, proceeding, PCGG is that he has been, more than once
investigation, or matter embarrassed in court and thereby made "a
requiring the services of a laughing stock in its (his) professionalism."
lawyer. (Emphasis supplied) Examples are when the OSG lawyers
betrayed ignorance in open court of certain
This Court clarified that even when moves taken by the PCGG, such as the lifting
"confronted with a situation where one of a sequestration of an asset or when it was
government office takes an adverse position under the impression that an asset had
against another government agency, as in this mysteriously disappeared only to be informed
case, the Solicitor General should not refrain that "a PCGG Commissioner had earlier by
from performing his duty as the lawyer of the resolution authorized the disposition of said
government. It is incumbent upon him to asset."
present to the court what he considers would
legally uphold the best interest of the The last straw, as it were, was the public
government although it may run counter to a announcement through media made by the
client's position. In such an instance, the PCGG that it had "dispensed with or
government office adversely affected by the otherwise did not need the legal services of
position taken by the Solicitor General, if it still the lawyer of the government." 60 It is evident
believes in the merit of its case may appear in that the withdrawal of the Solicitor General was
its own behalf through its legal personnel or precipitated by institutional pique, the lawyers
representative." concerned having allowed their collective pride
to prevail over their sense of duty in protecting
The Court further pointed out that it is not and upholding the public interest.
entirely impossible that the Office of the
Solicitor General may take a position adverse One wistfully wishes that the OSG could have
to his clients like the Civil Service Commission been as zealous in representing the PCGG as
and the National Labor Relations it was in appearing for the head of their office,
Commission, among others, and even the the Solicitor General, in a civil suit for
People of the Philippines. In such instances, damages filed against him in a Regional Trial
however, it is not proper for the Solicitor Court arising from allegedly defamatory
General to simply decline to handle the case remarks uttered by him.
or arbitrarily withdraw therefrom. The Court
enjoins him to "nevertheless manifest his Such enthusiasm, according to this Court, was
opinion and recommendations to the Court misplaced. For Section 1 of Presidential
which is an invaluable aid in the disposition of Decree No. 478 which authorizes the OSG to
the case." 58 represent the Government of the Philippines,
its agencies and instrumentalities and its
However, in those cases where a government officials and agents in any litigation, admits of
agency declines the services of the Solicitor an exception, and that it is, it stops short of
General or otherwise fails or refuses to representing "a public official at any stage of a
forward the papers of the case to him for criminal case or in a civil suit for damages
appropriate action, the Court categorically arising from a felony." 61
held that ". . . this practice should be
estopped." 59 By the same token, the Solicitor In instances such as the above, the OSG can,
General should not decline to appear in court to with reason, withdraw its representation even
represent a government agency without just and if it has already entered its appearance. But
valid reason, especially the PCGG which is the Solicitor General, as the officially-
mandated lawyer of the government, is not person, it is to state the obvious that it can
empowered to take a similar step on the basis only act through the instrumentality of the
of a petty reason like embarrassment, as that government which, according to the
to which the individual lawyers assigned to Administrative Code of 1987, refers to the
appear for their office were subjected. Had "corporate governmental entity through which
they not been too preoccupied with their the functions of government are exercised
personal feelings, they could have checked throughout the Philippines . . ." 63 And the OSG
themselves in time. For a sense of is, by law, constituted the law office of the
professional responsibility and proper Government whose specific powers and
decorum would dictate that they distinguish functions include that of representing the
between the institution which, from the very Republic and/or the people before any court in
beginning, had been constituted as the law any action which affects the welfare of the
office of the Government and people as the ends of justice may require.
the individuals through whom its powers and
duties are exercised. No emotions, of Indeed, in the final analysis, it is the Filipino
whatever kind and degree, should be allowed people as a collectivity that constitutes the
to becloud their high sense of duty and Republic of the Philippines. Thus, the
commitment to country and people. distinguished client of the OSG is the people
themselves of which the individual lawyers in
The OSG itself admitted refraining from citing said office are a part.
other incidents as additional bases for the
Solicitor General's withdrawal "as they are not In order to cushion the impact of his untimely
of meat and substance" but apparently, their withdrawal of appearance which might
overwhelming sense of shame overcame adversely affect the case, the Solicitor
them as the OSG was "rendered thereby a General has offered "to submit his
laughing stock in its professionalism." 62 comment/observation on incidents/matters
pending with this Honorable Court, if called for
Now a word on the incidents that allegedly by circumstances in the interest of the
caused humiliation to the OSG lawyers, thus government or if he is so required by the
provoking the Solicitor General into court." However, as correctly pointed out by
withdrawing his appearance as counsel for the the petitioner, while the Solicitor General may
PCGG. No litigation can be assured of be free to express his views and comments
success if counsel does not enjoy the before the Court in connection with a case he
confidence of his client. This is manifested by, is handling, he may not do so anymore after
among other things, holding regular, constant he has formally expressed his refusal to
and untrammeled consultation with each appear therein. For by then, he has lost his
other. Who can say but that if the standing in court. Unless his views are sought
communication lines had been kept open by the court, the Solicitor General may not
between the OSG and PCGG, no surprises voluntarily appear in behalf of his client after
would have been sprung on the former by the his withdrawal from the case; otherwise, such
latter in open court? reappearance would constitute a blatant
disregard for court rules and procedure, and
that, on the part of one who is presumed to be
Petitioner's claim that the Solicitor General
"learned in the law."
could not withdraw his appearance as lawyer
of PCGG inasmuch as he had neither the
consent of his client nor the authority from the In the face of such express refusal on the part
court, applying the pertinent provision of the of the Solicitor General to continue his
Rules of Court, is not well-taken. Here is no appearance as counsel of the PCGG in the
ordinary lawyer-client relationship. Let it be cases to recover the ill-gotten wealth of the
remembered that the client is no less than the Filipino people from the Marcoses and their
Republic of the Philippines in whom the cronies, the PCGG has had to employ the
plenum of sovereignty resides. Whether service of a group of private attorneys lest the
regarded as an abstract entity or an ideal national interest be prejudiced. Were this
Court to allow such action to remain experience, resources, staff and prestige of
unchallenged, this could well signal the laying the OSG which were painstakingly built up for
down of the novel and unprecedented doctrine almost a century.
that the representation by the Solicitor
General of the Government enunciated by law Moreover, endowed with a broad perspective
is, after all, not mandatory but merely that spans the legal interests of virtually the
directory. Worse, that this option may be entire government officialdom, the OSG may
exercised on less than meritorious grounds; be expected to transcend the parochial
not on substance but on whimsy, depending concerns of a particular client agency and
on the all too human frailties of the lawyers in instead, promote and protect the public weal.
the OSG assigned to a particular case. Under Given such objectivity, it can discern,
such circumstances, it were better to repeal metaphorically speaking, the panoply that is
the law than leave the various government the forest and not just the individual trees. Not
agencies, all dependent on the OSG for legal merely will it strive for a legal victory
representation, in a condition of suspenseful circumscribed by the narrow interests of the
uncertainty. With every looming legal battle, client office or official, but as well, the vast
they will be speculating whether they can rely concerns of the sovereign which it is
on the Solicitor General to defend the committed to serve.
Government's interest or whether they shall
have to depend on their own "in-house" In light of the foregoing, the Solicitor General's
resources for legal assistance. withdrawal of his appearance on behalf of the
PCGG was beyond the scope of his authority
The Court is firmly convinced that, considering in the management of a case. As a public
the spirit and the letter of the law, there can be official, it is his sworn duty to provide legal
no other logical interpretation of Sec. 35 of the services to the Government, particularly to
Administrative Code than that it is, indeed, represent it in litigations. And such duty may
mandatory upon the OSG to "represent the be enjoined upon him by the writ
Government of the Philippines, its agencies of mandamus. And such duty may be enjoined
and instrumentalities and its officials and upon him by the writ of mandamus. Such
agents in any litigation, proceeding, order, however, should not be construed to
investigation or matter requiring the services mean that his discretion in the handling of his
of a lawyer." cases may be interfered with. The Court is not
compelling him to act in a particular
Sound management policies require that the way. 64 Rather, the Court is directing him to
government's approach to legal problems and prevent a failure of justice 65resulting from his
policies formulated on legal issues be abandonment in midstream of the cause of the
harmonized and coordinated by a specific PCGG and the Republic and ultimately, of the
agency. The government owes it to its officials Filipino people.
and their respective offices, the political units
at different levels, the public and the various In view of the foregoing, there need be no
sectors, local and international, that have proof adduced that the petitioner has a
dealings with it, to assure them of a degree of personal interest in the case, as his petition is
certitude and predictability in matters of legal anchored on the right of the people, through
import. the PCGG and the Republic, to be
represented in court by the public officer duly
From the historical and statutory perspectives authorized by law. The requirement of
detailed earlier in this ponencia, it is beyond personal interest is satisfied by the mere fact
cavil that it is the Solicitor General who has that the petitioner is a citizen and hence, part
been conferred the singular honor and of the public which possesses the right. 66
privilege of being the "principal law officer and
legal defender of the Government." One The writ of prohibition, however, may not be
would be hard put to name a single legal similarly treated and granted in this petition.
group or law firm that can match the expertise, The said writ, being intended to prevent the
doing of some act that is about to be done, it Administrative Case No. 526 2 of the Court, and
may not provide a remedy for acts which are "consistently with the views and counsel
already fait accompli. 67 Having been placed in received from its [the Commission's] Board of
a situation where it was constrained to hire Consultants, as well as the overwhelming
private lawyers if the Republic's campaign to nationwide sentiment of the Philippine Bench
legally recover the wealth amassed by the and Bar" that "this Honorable Court ordain
Marcoses, their friends and relatives was to the integration of the Philippine Bar as soon as
prosper, the PCGG's action is justified. possible through the adoption and promulgation
However, it was not entirely blameless. Its of an appropriate Court Rule."
failure to coordinate closely with the Solicitor
General has spawned the incidents which The petition in Adm. Case No. 526 formally
culminated in the withdrawal of the latter from prays the Court to order the integration of the
appearing as counsel in its cases. Philippine Bar, after due hearing, giving
recognition as far as possible and practicable
WHEREFORE, the petition for a writ to existing provincial and other local Bar
of mandamus is hereby GRANTED. The associations. On August 16, 1962, arguments
Solicitor General is DIRECTED to immediately in favor of as well as in opposition to the
re-enter his appearance in the cases wherein petition were orally expounded before the
he had filed a motion to withdraw appearance Court. Written oppositions were
and the PCGG shall terminate the services of admitted, 3 and all parties were thereafter
the lawyers it had employed but not before granted leave to file written memoranda. 4
paying them the reasonable fees due them in
accordance with rules and regulations of the Since then, the Court has closely observed
Commission on Audit. and followed significant developments relative
to the matter of the integration of the Bar in
This decision is immediately executory. this jurisdiction.
Feliciano, J., concurs in the result. In September, 1971, Congress passed House
Bill No. 3277 entitled "An Act Providing for the
anuary 9, 1973 Integration of the Philippine Bar, and
Appropriating Funds Therefor." The measure
was signed by President Ferdinand E. Marcos
IN THE MATTER OF THE INTEGRATION OF
on September 17, 1971 and took effect on the
THE BAR OF THE PHILIPPINES.
same day as Rep. Act 6397. This law provides
as follows:
RESOLUTION
SECTION 1. Within two years
from the approval of this Act,
the Supreme Court may adopt
PER CURIAM: rules of court to effect the
integration of the Philippine
On December 1, 1972, the Commission on Bar under such conditions as it
Bar Integration 1 submitted its Report dated shall see fit in order to raise
November 30, 1972, with the "earnest the standards of the legal
recommendation" on the basis of the profession, improve the
said Report and the proceedings had in administration of justice, and
enable the Bar to discharge its adopt the concept given by the Commission
public responsibility more on Bar Integration on pages 3 to 5 of
effectively. its Report, thus: