G.R. No.

L-51813-14 November 29, 1983
ROMULO CANTIMBUHAN, NELSON B. MALANA, and
ROBERT V. LUCILA, petitioners,
vs.
HON. NICANOR J. CRUZ, JR., Presiding Judge of the
Municipal Court of Paraaque, Metro Manila, and
FISCAL LEODEGARIO C. QUILATAN, respondents.
Froilan M. Bacungan and Alfredo F. Tadiar for petitioners.
The Solicitor General for respondents.
Hence, this petition for certiorari, mandamus and
prohibition with prayers, among others, that the Orders of
respondent judge, dated August 16, 1979 and September
4, 1979, be set aside as they are in plain violation of
Section 34, Rule 138 of the Rules of Court and/or were
issued with grave abuse of discretion amounting to lack
of jurisdiction. Upon motion, the Court, 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 Criminal
Cases Nos. 58549 (People of the Philippines vs. Danilo
San Antonio) and 58559 (People of the Philippines vs.
Rodolfo Diaz) of the Municipal Court of Paraaque,
Metro Manila on November 15, 1979 as scheduled or on
any such dates as may be fixed by said respondent
judge.

RELOVA, J.:+.wph!1 Basis of this petition is Section 34, Rule 138 of the Rules
Appeal from the Order, dated August 16, 1979, of
respondent Judge Nicanor J. Cruz, Jr., of the then
Municipal Court of Paraaque, Metro Manila, disallowing
the appearances of petitioners Nelson B. Malana and
Robert V. Lucila as private prosecutors in Criminal Cases
Nos. 58549 and 58550, both for less serious physical
injuries, filed against Pat. Danilo San Antonio and Pat.
Rodolfo Diaz, respectively, as well as the Order, dated
September 4, 1979, denying the motion for
reconsideration holding, among others, that "the fiscal's
claim that appearances of friends of party-litigants should
be allowed only in places where there is a scarcity of
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
friends of the litigants, then the requirement of
membership in the Integrated Bar of the Philippines and
the additional requirement of paying professional taxes
for a lawyer to appear in court, would be put to naught. "
(p. 25, Rollo)
Records show that on April 6, 1979, petitioner Romulo
Cantimbuhan filed separate criminal complaints against
Patrolmen Danilo San Antonio and Rodolfo Diaz for less
serious physical injuries, respectively, and were docketed
as Criminal Cases Nos. 58549 and 58550 in the then
Municipal Court of Paraaque, Metro Manila.
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
August 1979, petitioners Malana and Lucila filed their
separate appearances, as friends of complainant-
petitioner Cantimbuhan. Herein respondent Fiscal
Leodegario C. Quilatan opposed the appearances of said
petitioners, and respondent judge, in an Order dated
August 16, 1979, sustained the respondent fiscal and
disallowed the appearances of petitioners Malana and
Lucila, as private prosecutors in said criminal cases.
Likewise, on September 4, 1979, respondent Judge
issued an order denying petitioners' motion for
reconsideration.
of Court which states: t.hqw
SEC. 34. By whom litigation
conducted. In the court of a justice
of the peace a party may conduct his
litigation in person, with the aid of an
agent or friend appointed by him for
that purpose, or with the aid of an
attorney. In any other court, a party
may conduct his litigation personally
or by aid of an attorney, and his
appearance must be either personal
or by a duly authorized member of the
bar.
Thus, a non-member of the Philippine Bar a party to
an action is authorized to appear in court and conduct his
own case; and, in the inferior courts, the litigant may be
aided by a friend or agent or by an attorney. However, in
the Courts of First Instance, now Regional Trial Courts,
he can be aided only by an attorney.
On the other hand, it is the submission of the
respondents that pursuant to Sections 4 and 15, Rule
110 of the Rules of Court, it is the fiscal who is
empowered to determine who shall be the private
prosecutor as was done by respondent fiscal when he
objected to the appearances of petitioners Malana and
Lucila. Sections 4 and 15, Rule 110 of the Rules of Court
provide: t.hqw
SEC. 4. Who must prosecute criminal
actions. All criminal actions either
commenced by complaint or by
information shall be prosecuted under
the direction and control of the fiscal.
xxx xxx xxx
SEC. 15. Intervention of the offended
party in criminal action. Unless the
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
intervene, personally or by attorney, in
the prosecution of the offense.
And, they contend that the exercise by the offended party
to intervene is subject to the direction and control of the
fiscal and that his appearance, no less than his active
conduct of the case later on, requires the prior approval
of the fiscal.
We find merit in the petition. Section 34, Rule 138 of the
Rules of Court, clearly provides that in the municipal
court a party may conduct his litigation in person with the
aid of an agent appointed by him for the purpose. Thus,
in the case of Laput vs. Bernabe, 55 Phil. 621, a law
student was allowed to represent the accused in a case
pending before the then Municipal Court, the City Court
of Manila, who was charged for damages to property
through reckless imprudence. "It is accordingly our view
that error was committed in the municipal court in not
allowing Crispiniano V. Laput to act as an agent or friend
of Catalino Salas to aid the latter in conducting his
defense." The permission of the fiscal is not necessary
for one to enter his appearance as private prosecutor. In
the first place, the law does not impose this condition.
What the fiscal can do, if he wants to handle the case
personally is to disallow the private prosecutor's
participation, whether he be a lawyer or not, in the trial of
the case. On the other hand, if the fiscal desires the
active participation of the private prosecutor, he can just
manifest to the court that the private prosecutor, with its
approval, will conduct the prosecution of the case under
his supervision and control. Further, We may add that if a
non-lawyer can appear as defense counsel or as friend
of the accused in a case before the municipal trial court,
with more reason should he be allowed to appear as
private prosecutor under the supervision and control of
the trial fiscal.
In the two criminal cases filed before the Municipal Court
of Paraaque, petitioner Cantimbuhan, as the offended
party, did not expressly waive the civil action nor reserve
his right to institute it separately and, therefore, the civil
action is deemed impliedly instituted in said criminal
cases. Thus, said complainant Romulo Cantimbuhan has
personal interest in the success of the civil action and, in
the prosecution of the same, he cannot be deprived of
his right to be assisted by a friend who is not a lawyer.
WHEREFORE, the Orders issued by respondent judge
dated August 16, 1979 and September 4, 1979 which
disallowed the appearances of petitioners Nelson B.
Malana and Robert V. Lucila as friends of party-litigant
petitioner Romulo Cantimbuhan. are hereby SET ASIDE
and respondent judge is hereby ordered to ALLOW the
appearance and intervention of petitioners Malana and
Lucila as friends of Romulo Cantimbuhan. Accordingly,
the temporary restraining order issued on November 8,
1979 is LIFTED.
SO ORDERED.1wph1.t
Fernando, C.J., Makasiar, Concepcion Jr., Guerrero,
Abad Santos, Plana, Escolin and Gutierrez, Jr., JJ.,
concur.
Separate Opinions
AQUINO, J., dissenting:
Senior law students should study their lessons anti
prepare for the bar. They have no business appearing in
court.
MELENCIO-HERRERA, J., dissenting:
Section 34, Rule 138 of the Rules of Court specifically
provides that it is "a party" who may conduct his litigation
in person, with the aid of an agent or friend appointed by
him for that purpose in the Court of a Justice of the
Peace. Romulo Cantimbuhan, as the complaining
witness in Criminal Cases Nos. 58549 and 58550 of the
then Municipal Court of Paraaque, Metro Manila, is not
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
in a criminal action in respect of the civil liability. The
case of Laput and Salas vs. Bernabe, 55 Phil. 621, is
authority only in respect of the accused, as a "party", in a
criminal case.
Sections 4 and 15, Rule 110 of the Rules of Court, being
the more specific provisions in respect of criminal cases,
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.
I vote, therefore, to uphold the Order of respondent
Municipal Judge, dated August 16, 1979, disallowing the
appearances of petitioners as private prosecutors in the
abovementioned criminal cases. Orders set aside.
Fernando, C.J., Makasiar, Concepcion, Jr., Guerrero,
Abad Santos, Plana, Escolin and Gutierrez, Jr., JJ.,
concur.
Separate Opinions

AQUINO, J., dissenting:
Senior law students should study their lessons anti
prepare for the bar. They have no business appearing in
court.
MELENCIO-HERRERA, J., dissenting:
Section 34, Rule 138 of the Rules of Court specifically
provides that it is "a party" who may conduct his litigation
in person, with the aid of an agent or friend appointed by
him for that purpose in the Court of a Justice of the
Peace. Romulo Cantimbuhan, as the complaining
witness in Criminal Cases Nos. 58549 and 58550 of the
then Municipal Court of Paraaque, Metro Manila, is not
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
in a criminal action in respect of the civil liability. The
case of Laput and Salas vs. Bernabe, 55 Phil. 621, is
authority only in respect of the accused, as a "party", in a
criminal case.
witness in Criminal Cases Nos. 58549 and 58550 of the
then Municipal Court of Paraaque, Metro Manila, is not
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
in a criminal action in respect of the civil liability. The
case of Laput and Salas vs. Bernabe, 55 Phil. 621, is
authority only in respect of the accused, as a "party", in a
criminal case.
Sections 4 and 15, Rule 110 of the Rules of Court, being
the more specific provisions in respect of criminal cases,
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.
I vote, therefore, to uphold the Order of respondent
Municipal Judge, dated August 16, 1979, disallowing the
appearances of petitioners as private prosecutors in the
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.

I vote, therefore, to uphold the Order of respondent

Municipal Judge, dated August 16, 1979, disallowing the
appearances of petitioners as private prosecutors in the
abovementioned criminal cases. Orders set aside.

De Castro, Teehankee, JJ., concur

Separate Opinions

AQUINO, J., dissenting:

Senior law students should study their lessons anti

prepare for the bar. They have no business appearing in
court.

MELENCIO-HERRERA, J., dissenting:

Section 34, Rule 138 of the Rules of Court specifically

provides that it is "a party" who may conduct his litigation
in person, with the aid of an agent or friend appointed by
him for that purpose in the Court of a Justice of the
Peace. Romulo Cantimbuhan, as the complaining
 FERDINAND A. G.R. No. 154207
CRUZ, On September 25, 2000, Ferdinand A. Cruz
P e t i t i o n e r,
(petitioner) filed before the MeTC a formal
Present:
E n t r y o f A p p e a r a n c e , a s p r i v a t e p r o s e c u t o r, i n
- versus - YNARES- Criminal Case No. 00-1705 for Grave Threats,
SANTIAGO, J.,
Chairperson, where his f a t h e r, Mariano Cruz, is the
AUSTRIA-
M A RT I N E Z , complaining witness.
CALLEJO, SR.,
A L B E RTO M I N A , CHICO-NAZARIO,
and
HON. ELEUTERIO NACHURA, JJ. T h e p e t i t i o n e r, d e s c r i b i n g h i m s e l f a s a t h i r d y e a r
F
GUERRERO and law student, justifies his appearance as private
HON.
prosecutor on the bases of Section 34 of Rule
ZENAIDA Promulgated:
LAGUILLES, 138 of the Rules of Court and the ruling of the
Respondents. April 27, 2007
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C o u r t E n B a n c i n C a n t i m b u h a n v. J u d g e C r u z , J r .
- - - - - - - - - - x
[2]
that a non-lawyer may appear before the

inferior courts as an agent or friend of a party

D E C I S I O N
litigant. The petitioner furthermore avers that his

appearance was with the prior conformity of the

A U S T R I A - M A RT I N E Z , J . : public prosecutor and a written authority of

Mariano Cruz appointing him to be his agent in

Before the Court is a Petition the prosecution of the said criminal case.
for Certiorari under Rule 65 of the Rules of

C o u r t , g r o u n d e d o n p u r e q u e s t i o n s o f l a w, w i t h H o w e v e r, i n a n O r d e r d a t e d F e b r u a r y 1 , 2 0 0 2 ,
Prayer for Preliminary Injunction assailing the the MeTC denied permission for petitioner to
Resolution dated May 3, 2002 promulgated by appear as private prosecutor on the ground that
t h e R e g i o n a l Tr i a l C o u r t ( RT C ) , B r a n c h 11 6 , Circular No. 19 governing limited law student
P a s a y C i t y, i n C i v i l C a s e N o . 0 2 - 0 1 3 7 , w h i c h practice in conjunction with Rule 138-A of the
denied the issuance of a writ of preliminary Rules of Court (Law Student Practice Rule)
i n j u n c t i o n a g a i n s t t h e M e t r o p o l i t a n Tr i a l C o u r t should take precedence over the ruling of the
( M e T C ) , B r a n c h 4 5 , P a s a y C i t y, i n C r i m i n a l C a s e Court laid down in Cantimbuhan; and set the
[1]
No. 00-1705; a n d t h e RT C s O r d e r d a t e d J u n e 5 , case for continuation of trial. [3]
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

alleging that Rule 138-A, or the Law Student

The antecedents:
Practice Rule, does not have the e ff e c t of

superseding Section 34 of Rule 138, for the

authority to interpret the rule is the source itself of a party litigant, even without the supervision

of the rule, which is the Supreme Court alone. o f a m e m b e r o f t h e b a r.

In an Order dated March 4, 2002, Pending the resolution of the foregoing Motion

the MeTC denied the Motion for for Reconsideration before the RT C , the

Reconsideration. petitioner filed a Second Motion for

On April 2, 2002, the petitioner filed before the Reconsideration dated June 7, 2002 with

RT C a Petition the MeTC seeking the reversal of the March 4,

for Certiorari and Mandamus with Prayer for 2002 Denial Order of the said court, on the

Preliminary Injunction and Te m p o r a r y strength of Bar Matter No. 730, and a Motion to

Restraining Order against the private respondent H o l d I n A b e y a n c e t h e Tr i a l d a t e d J u n e 1 0 , 2 0 0 2

and the public respondent MeTC. of Criminal Case No. 00-1705 pending the

outcome of the certiorari proceedings before the

After hearing the prayer for preliminary RT C .

injunction to restrain public On June 5, 2002, the RT C issued its Order

respondent MeTC Judge from proceeding with denying the petitioners Motion for

Criminal Case No. 00-1705 pending Reconsideration.

theCertiorari proceedings, the RT C , in a

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 crime of Grave Threats, the subject of for Reconsideration and his Motion to Hold in

Criminal Case No. 00-1705, is one that can be A b e y a n c e t h e Tr i a l o n t h e g r o u n d t h a t t h e RT C

prosecuted de oficio, there being no claim for had already denied the Entry of Appearance of

civil i n d e m n i t y, and that therefore, the petitioner before the MeTC.

intervention of a private prosecutor is not legally

tenable. On July 30, 2002, the petitioner directly filed

with this Court, the instant Petition and assigns

On May 9, 2002, the petitioner filed before the the following errors:

RT C a Motion for Reconsideration. The I.

p e t i t i o n e r a rg u e s that nowhere does the law THE RESPONDENT REGIONAL
T R I A L C O U RT A B U S E D I T S
provide that the crime of Grave Threats has no
DISCRETION WHEN IT
civil aspect. And last, petitioner cites Bar Matter R E S O LV E D TO D E N Y T H E
P R AY E R F O R T H E W R I T O F
No. 730 dated June 10, 1997 which expressly INJUNCTION OF THE HEREIN
PETITIONER DESPITE
provides for the appearance of a non-lawyer PETITIONER H AV I N G
E S TA B L I S H E D THE
before the inferior courts, as an agent or friend NECESSITY OF GRANTING
T H E W R I T;
 Considering that this case involves the
II.
interpretation, clarification, and implementation
THE RESPONDENT TRIAL of Section 34, Rule 138 of the Rules of Court,
C O U RT ABUSED ITS
DISCRETION, TA N TA M O U N T Bar Matter No. 730, Circular No. 19 governing
T O I G N O R A N C E O F T H E L AW,
W H E N I T R E S O LV E D TO D E N Y law student practice and Rule 138-A of the Rules
T H E P R AY E R F O R T H E W R I T
OF P R E L I M I N A RY of Court, and the ruling of the Court
INJUNCTION AND THE
SUBSEQUENT MOTION FOR in Cantimbuhan, the Court takes cognizance of
R E C O N S I D E R AT I O N O F T H E
HEREIN PETITIONER ON THE herein petition.
BASIS T H AT [ G R AV E ]
T H R E AT S HAS NO CIVIL
A S P E C T, F O R T H E S A I D B A S I S T h e b a s i c q u e s t i o n i s w h e t h e r t h e p e t i t i o n e r, a
OF DENIAL IS NOT IN
A C C O R D W I T H T H E L AW; law student, may appear before an inferior court

III. as an agent or friend of a party litigant.

THE R E S P O N D E N T M E T R O P O L I TA N
T R I A L C O U RT A B U S E D I T S
DISCRETION WHEN IT The courts a quo held that the Law Student
D E N I E D T H E M O T I O N TO
Practice Rule as encapsulated in Rule 138-A of
H O L D I N A B E YA N C E T R I A L ,
W H E N W H AT WA S D E N I E D B Y t h e R u l e s o f C o u r t , p r o h i b i t s t h e p e t i t i o n e r, a s a
THE RESPONDENT REGIONAL
TRIAL C O U RT IS THE law student, from entering his appearance in
ISSUANCE OF THE WRIT OF
P R E L I M I N A RY INJUNCTION b e h a l f o f h i s f a t h e r, t h e p r i v a t e c o m p l a i n a n t i n
AND WHEN THE RESPONDENT
R E G I O N A L T R I A L C O U RT I S the criminal case without the supervision of an
Y E T TO D E C I D E O N T H E
MERITS OF THE PETITION attorney duly accredited by the law school.
FOR CERTIORARI;

I V.
Rule 138-A or the Law Student Practice Rule,
THE RESPONDENT C O U RT [ S ] ARE provides:
C L E A R LY IGNORING THE
L AW W H E N T H E Y PAT E N T LY RULE 138-A
REFUSED TO HEED
TO [sic] THE CLEAR L AW S T U D E N T P R A C T I C E R U L E
M A N D AT E O F T H E L A P U T,
CANTIMBUHAN AND Section 1. Conditions
BULACAN CASES, AS WELL for Student Practice. A law
A S B A R M AT T E R N O . 7 3 0 , student who has successfully
PROVIDING FOR THE completed his 3rd year of the
APPEARANCE OF NON- regular four-year prescribed law
L AW Y E R S BEFORE THE curriculum and is enrolled in a
L O W E R C O U RT S ( M T C S ) . [ 4 ] recognized law school's clinical
legal education program
approved by the Supreme Court,
This Court, in exceptional cases, and for may appear without
compensation in any civil,
compelling reasons, or if warranted by the nature criminal or administrative case
before any trial court, tribunal,
of the issues reviewed, may take cognizance of b o a r d o r o ff i c e r, t o r e p r e s e n t
indigent clients accepted by the
petitions filed directly before it. [5] legal clinic of the law school.
 Sec. 2. Appearance. The party without the supervision
appearance of the law student o f a m e m b e r o f t h e b a r.
[7]
authorized by this rule, shall be (Emphasis supplied)
under the direct supervision and
control of a member of the
Integrated Bar of The phrase In the court of a justice of
thePhilippines duly accredited
by the law school. Any and all the peace in Bar Matter No. 730 is subsequently
pleadings, motions, briefs,
changed to In the court of a municipality as it
memoranda or other papers to be
filed, must be signed by the now appears in Section 34 of Rule 138, thus: [8]
supervising attorney for and in
behalf of the legal clinic. SEC. 34. By whom
litigation is conducted . In the
Court of a municipality a party
may conduct his litigation in
H o w e v e r, i n R e s o l u t i o n [ 6 ] d a t e d J u n e 1 0 , 1 9 9 7 i n person, with the aid of an agent
or friend appointed by him for
Bar Matter No. 730, the Court En Banc clarified: that purpose, or with the aid of
a n a t t o r n e y. I n a n y o t h e r c o u r t , a
T h e r u l e , h o w e v e r, i s party may conduct his litigation
d i f f e re n t i f t h e l a w s t u d e n t personally or by aid of an
a p p e a r s b e f o re a n i n f e r i o r attorney and his appearance
c o u r t , w h e re t h e i s s u e s a n d must be either personal or by a
p ro c e d u re a re re l a t i v e l y duly authorized member of the
simple. In inferior courts, a b a r. ( E m p h a s i s s u p p l i e d )
law student may appear in his
personal capacity without the which is the prevailing rule at the time the
s u p e r v i s i o n o f a l a w y e r. S e c t i o n
petitioner filed his Entry of Appearance with
34, Rule 138 provides:
the MeTC on September 25, 2000. No real
Sec.
34. By whom distinction exists for under Section 6, Rule 5 of
litigation is
conducted. - In t h e R u l e s o f C o u r t , t h e t e r m " M u n i c i p a l Tr i a l
the court of a
justice of the Courts" as used in these Rules shall include
peace, a party
may conduct his Metropolitan Tr i a l Courts, Municipal Tr i a l
litigation in
person, with the C o u r t s i n C i t i e s , M u n i c i p a l Tr i a l C o u r t s , a n d
aid of an agent
M u n i c i p a l C i r c u i t Tr i a l C o u r t s .
or friend
appointed by There is really no problem as to the
him for that
purpose, or with application of Section 34 of Rule 138 and Rule
the aid of an
a t t o r n e y. I n a n y 1 3 8 - A . I n t h e f o r m e r, t h e a p p e a r a n c e o f a n o n -
other court, a
party may l a w y e r, a s a n a g e n t o r f r i e n d o f a p a r t y l i t i g a n t ,
conduct his
litigation is expressly allowed, while the latter rule
personally or by
provides for conditions when a law student, not
aid of an
a t t o r n e y, a n d h i s as an agent or a friend of a party litigant, may
appearance must
be either appear before the courts.
personal or by a
duly authorized
member of the
b a r. Petitioner expressly anchored his appearance on

Thus, a law student Section 34 of Rule 138. The court a quo must
m a y a p p e a r b e f o re a n i n f e r i o r
court as an agent or friend of a have been confused by the fact that petitioner
referred to himself as a law student in his entry 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

to act as private prosecutor against petitioner for instant case, such that when a criminal action is

the simple reason that Rule 138-A is not the instituted, the civil action for the recovery of

basis for the petitioners appearance. c i v i l l i a b i l i t y a r i s i n g f r o m t h e o ff e n s e c h a rg e d

shall be deemed instituted with criminal action,

Section 34, Rule 138 is clear that appearance u n l e s s t h e o ff e n d e d p a r t y w a i v e s t h e c i v i l a c t i o n ,

before the inferior courts by a non-lawyer is reserves the right to institute it separately or

allowed, irrespective of whether or not he is a institutes the civil action prior to the criminal

law student. As succinctly clarified in Bar action.[10]

Matter No. 730, by virtue of Section 34, Rule The petitioner is correct in stating that there

1 3 8 , a l a w s t u d e n t m a y a p p e a r, a s a n a g e n t o r a being no reservation, w a i v e r, nor prior

friend of a party litigant, without the supervision institution of the civil aspect in Criminal Case

of a lawyer before inferior courts. No. 00-1705, it follows that the civil aspect

Petitioner further a rg u e s that the RT C arising from Grave Threats is deemed instituted

erroneously held that, by its very nature, no civil with the criminal action, and, hence, the private

liability may flow from the crime of Grave prosecutor may rightfully intervene to prosecute

Threats, and, for this reason, the intervention of the civil aspect.

a private prosecutor is not possible.

WHEREFORE, the Petition

I t i s c l e a r f r o m t h e RT C D e c i s i o n t h a t n o is GRANTED. The assailed Resolution and Order

such conclusion had been intended by the of the Regional Tr i a l Court, Branch

RT C . I n d e n y i n g t h e i s s u a n c e o f t h e i n j u n c t i v e 11 6 , P a s a y C i t y a r e R E V E R S E D a n d S E T

c o u r t , t h e RT C s t a t e d i n i t s D e c i s i o n t h a t t h e r e A S I D E . T h e M e t r o p o l i t a n Tr i a l C o u r t , B r a n c h

was no claim for civil liability by the private 45, Pasay City is DIRECTED to ADMIT the

complainant for damages, and that the records of Entry of Appearance of petitioner in Criminal

the case do not provide for a claim for Case No. 00-1705 as a private prosecutor under

indemnity; and that therefore, petitioners the direct control and supervision of the public

appearance as private prosecutor appears to be p r o s e c u t o r.

legally untenable.

No pronouncement as to costs.

Under Article 100 of the Revised Penal Code,

every person criminally liable for a felony is SO ORDERED.

also civilly liable except in instances when no

a c t u a l d a m a g e r e s u l t s f r o m a n o ff e n s e , s u c h a s
 assigned to the writer of the opinion of the
M A . A L I C I A A U S T R I A - M A RT I N E Z Courts Division.
Associate Justice

WE CONCUR:
R E Y N ATO S . P U N O

Chief Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

ROMEO J. CALLEJO, SR.

Associate Justice

A N TO N I O E D U A R D O B . N A C H U R A
Associate Justice

AT T E S TAT I O N

I attest that the conclusions in the above

Decision had been reached in consultation before
the case was assigned to the writer of the
opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of

the Constitution, and the Division Chairpersons
Attestation, it is hereby certified that the
conclusions in the above Decision had been
reached in consultation before the case was

G.R. No. L-23959 November 29, 1971
PHILIPPINE ASSOCIATION OF FREE
LABOR UNIONS (PAFLU), ENRIQUE
ENTILA & VICTORIANO
TENAZASpetitioners,
vs.
BINALBAGAN ISABELA SUGAR
COMPANY, COURT OF INDUSTRIAL
RELATIONS, & QUINTIN
MUNINGrespondents.
Cipriano Cid & Associates for petitioners.
Ceferino Magat and Manuel C. Gonzales for
respondent Quintin Muning.
REYES, J.B.L., J.:
May a non-lawyer recover attorney's fees for
legal services rendered? This is the issue
presented in this petition for review of an
order, dated 12 May 1964, and the en
banc resolution, dated 8 December 1964, of
the Court of Industrial Relations, in its Case
No. 72-ULP-Iloilo, granting respondent Quintin
Muning a non-lawyer, attorney's fees for
professional services in the said case.
The above-named petitioners were
complainants in Case No. 72-ULP-Iloilo
entitled, "PAFLU et al. vs. Binalbagan Isabela
Sugar Co., et al." After trial, the Court of
Industrial Relations rendered a decision, on
29 March 1961, ordering the reinstatement
with backwages of complainants Enrique
Entila and Victorino Tenazas. Said decision
became final. On 18 October 1963, Cipriano
Cid & Associates, counsel of record for the
winning complainants, filed a notice of
attorney's lien equivalent to 30% of the total
backwages. On 22 November 1963, Atty.
Atanacio Pacis also filed a similar notice for a
reasonable amount. Complainants Entila and
Tenazas on 3 December 1963, filed a
manifestation indicating their non-objection to
an award of attorney's fees for 25% of their
backwages, and, on the same day, Quentin
Muning filed a "Petition for the Award of
Services Rendered" equivalent to 20% of the
backwages. Munings petition was opposed by
Cipriano Cid & Associates the ground that he
is not a lawyer.
The records of Case No. 72-ULP-Iloilo show
that the charge was filed by Cipriano Cid &
Associates through Atty. Atanacio Pacis. All
the hearings were held in Bacolod City and
appearances made in behalf of the
complainants were at first by Attorney Pacis
and subsequently by respondent Quintin
Muning.
On 12 May 1964, the Court of Industrial
Relations awarded 25% of the backwages as
compensation for professional services
rendered in the case, apportioned as follows:
Attys. Cipriano Cid &
Associates ..............................
............... 10%
Quintin
Muning ....................................
..................................... 10%
Atty. Atanacio
Pacis .......................................
.......................... 5%
The award of 10% to Quintin Muning who is
not a lawyer according to the order, is sought
to be voided in the present petition.
Respondent Muning moved in this Court to
dismiss the present petition on the ground of
late filing but his motion was overruled on 20
January 1965. 1 He asked for reconsideration,
but, considering that the motion contained
averments that go into the merits of the case,
this Court admitted and considered the motion
for reconsideration for all purposes as
respondent's answer to the petitioner for
review. 2 The case was considered submitted for
decision without respondent's brief.3
Applicable to the issue at hand is the principle
enunciated in Amalgamated Laborers'
Association, et al. vs. Court of Industrial
Relations, et al., L-23467, 27 March
1968, 4 that an agreement providing for the
division of attorney's fees, whereby a non-lawyer
union president is allowed to share in said fees
with lawyers, is condemned by Canon 34 of
Legal Ethics and is immoral and cannot be
justified. An award by a court of attorney's fees
is no less immoral in the absence of a contract,
as in the present case.
The provision in Section 5(b) of Republic Act
No. 875 that
In the proceeding before the
Court or Hearing Examiner
thereof, the parties shall not
be required to be represented
by legal counsel ...
is no justification for a ruling, that the person
representing the party-litigant in the Court of
Industrial Relations, even if he is not a lawyer,
is entitled to attorney's fees: for the same
section adds that
it shall be the duty and
obligation of the Court or
Hearing Officer to examine
and cross examine witnesses
on behalf of the parties and to
assist in the orderly
presentation of evidence.
thus making it clear that the representation
should be exclusively entrusted to duly
qualified members of the bar.
The permission for a non-member of the bar
to represent or appear or defend in the said
court on behalf of a party-litigant does not by
itself entitle the representative to
compensation for such representation. For
Section 24, Rule 138, of the Rules of Court,
providing
Sec. 24. Compensation of
attorney's agreement as to
fees. An attorney shall be
entitled to have and recover
from his client no more than a
reasonable compensation for
his services, ...
imports the existence of an attorney-client
relationship as a condition to the recovery of
attorney's fees. Such a relationship cannot
exist unless the client's representative in court
be a lawyer. Since respondent Muning is not
one, he cannot establish an attorney-client
relationship with Enrique Entila and Victorino
Tenezas or with PAFLU, and he cannot,
therefore, recover attorney's fees. Certainly
public policy demands that legal work in
representation of parties litigant should be
entrusted only to those possessing tested
qualifications and who are sworn, to observe
the rules and the ethics of the profession, as
well as being subject to judicial disciplinary
control for the protection of courts, clients and
the public.
On the present issue, the rule in American
jurisdictions is persuasive. There, it is stated:
But in practically all
jurisdictions statutes have now
been enacted prohibiting
persons not licensed or
admitted to the bar from
practising law, and under
statutes of this kind, the great
weight of authority is to the
effect that compensation for
legal services cannot be
recovered by one who has not
been admitted to practice
before the court or in the
jurisdiction the services were
rendered. 5
No one is entitled to recover
compensation for services as an
attorney at law unless he has
been duly admitted to
practice ... and is an attorney in
good standing at the time. 6
The reasons are that the ethics of the legal
profession should not be violated; 7 that acting
as an attorney with authority constitutes
contempt of court, which is punishable by fine or
imprisonment or both, 8 and the law will not
assist a person to reap the fruits or benefit of an
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
leave the bar in a chaotic condition, aside from
the fact that non-lawyers are not amenable to
disciplinary measures. 10
And the general rule above-
stated (referring to non-
recovery of attorney's fees by
non-lawyers) cannot be
circumvented when the
services were purely legal, by
seeking to recover as an
"agent" and not as an
attorney. 11
The weight of the reasons heretofore stated
why a non-lawyer may not be awarded
attorney's fees should suffice to refute the
possible argument that appearances by non-
lawyers before the Court of Industrial
Relations should be excepted on the ground
that said court is a court of special jurisdiction;
such special jurisdiction does not weigh the
aforesaid reasons and cannot justify an
exception.
The other issue in this case is whether or not
a union may appeal an award of attorney's
fees which are deductible from the backpay of
some of its members. This issue arose
because it was the union PAFLU, alone, that
moved for an extension of time to file the
present petition for review; union members
Entila and Tenazas did not ask for extension
but they were included as petitioners in the
present petition that was subsequently filed, it
being contended that, as to them (Entila and
Tenazas), their inclusion in the petition as co-
petitioners was belated.
We hold that a union or legitimate labor
organization may appeal an award of
attorney's fees which are deductible from the
backpay of its members because such union
or labor organization is permitted to institute
an action in the industrial court, 12 on behalf of
its members; and the union was organized "for
the promotion of the emloyees' moral, social and
economic well-being"; 13 hence, if an award is
disadvantageous to its members, the union may
prosecute an appeal as an aggrieved party,
under Section 6, Republic Act 875, which
provides:
Sec. 6. Unfair Labor Practice
cases Appeals. Any
person aggrieved by any order
of the Court may appeal to the
Supreme Court of the
Philippines ...,
since more often than not the individual
unionist is not in a position to bear the
financial burden of litigations.
Petitioners allege that respondent Muning is
engaged in the habitual practice of law before
the Court of Industrial Relations, and many of
them like him who are not licensed to practice,
registering their appearances as
"representatives" and appearing daily before
the said court. If true, this is a serious situation
demanding corrective action that respondent
court should actively pursue and enforce by
positive action to that purpose. But since this
matter was not brought in issue before the
court a quo, it may not be taken up in the
present case. Petitioners, however, may file
proper action against the persons alleged to
be illegally engaged in the practice of law.
WHEREFORE, the orders under review are
hereby set aside insofar as they awarded 10%
of the backwages as attorney's fees for
respondent Quintin Muning. Said orders are
affirmed in all other respects. Costs against
respondent Muning.
Concepcion, C.J., Makalintal, Zaldivar,
Castro, Fernando, Teehankee, Barredo,
Villamor and Makasiar, JJ. concur.
G.R. No. 92561 September 12, 1990
SECRETARY OSCAR ORBOS OF THE
DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS,petitioner,
vs.
CIVIL SERVICE COMMISSION and NERIO
MADARANG, respondents.
The Solicitor General for petitioners.
Jose C. Cimano for private respondent.

GANCAYCO, J:
Once again the extent of the authority of the
Civil Service Commission (CSC) to pass upon
contested appointments is brought into focus
in this petition. The appearance of the Solicitor
General on behalf of the petitioner is also
questioned.
In the course of the reorganization of the
Department of Transportation and
Communications (DOTC), Guido C. Agon and
Alfonso Magnayon were appointed to the
positions of Head Telecommunications
Engineer, range 74.
Nerio Madarang who was also appointed to
the position of Supervising
Telecommunications Engineer, range 12,
questioned the appointments of Agon and
Magnayon by filing an appeal with the
Reorganization Appeals Board of the DOTC
composed of Moises S. Tolentino, Jr. of the
Office of the Secretary, as Chairman and
Assistant Secretary Rosauro V. Sibal and
Graciano L. Sitchon of the Office of the
Secretary, as members. In a resolution dated
January 9, 1989 the said Reorganization
Appeals Board dismissed Madarang's appeal
for lack of merit. Hence, he appealed to the
public respondent Civil Service Commission
(CSC)
In its resolution dated August 29, 1989,
respondent CSC revoked the appointments of
Agon and Magnayon for the contested
positions and directed the appointment of
Madarang to the said position of Heads
Telecommunications Engineer. 1 DOTC
Assistant Secretary Sibal sought a enforcing its questioned resolutions until
reconsideration of the said resolution of the CSC
but this was denied in a resolution dated
November 2, 1989. 2
On November 21, 1989, Assistant Secretary
Sibal filed a manifestation with the CSC
stating:
The Telecommunications
Office through the
undersigned, hereby manifests
that we received the CSC
resolution in CSC Case No.
393 on November 12, 1989
and in compliance thereto, we
will convene our Selection and
Promotion Board to deliberate
on the position of Head
Telecommunications Engineer
(reclassified to Engineer IV
pursuant to National
Compensation Circular No. 58
effective July 1, 1989) with
qualified candidates including
appellant Nerio Madarang. 3
In a letter dated November 27, 1989,
respondent Madarang requested the CSC to
take appropriate action by implementing its
resolutions dated August 29, 1989 and
November 2, 1989.
In an order dated December 19, 1989, the
CSC directed the immediate implementation
of its aforementioned resolution insofar as it
concerned the appointment of Madarang. 4
Agon and Magnayon filed their separate
motions for reconsideration of the aforestated
resolutions of the CSC but these were denied
by the said commission in a resolution dated
January 19, 1990.
Hence, this petition for certiorari with prayer
for a writ of preliminary injunction or
restraining order which was filed by the
Solicitor General in behalf of petitioner. On
March 29, 1990, the Court required the
respondents to comment on the petition within
ten (10) days from notice and issued a
restraining order enjoining the CSC from
further orders.
The sole issue in this case is whether or not
the CSC acted in excess of its jurisdiction or
with grave abuse of discretion amounting to
lack of jurisdiction when it ordered the
appointment of Nerio Madarang to the
contested position.
While petitioner does not question the
aforestated resolutions of the CSC insofar as
it disapproved the appointments of Agon and
Magnayon to the positions of Head
Telecommunications Engineer, petitioner
maintains that as the appointing authority, he
has the right of choice and discretion to
appoint the persons whom he deems fit to the
position to be filled. 5 Petitioner emphasizes
that when the CSC denied his motion for
reconsideration in a resolution dated November
2, 1989, Assistant Secretary Sibal informed the
CSC through a manifestation that the DOTC
Selection and Promotions Board will be
convened to deliberate on the position of Head
Telecommunications Engineer, taking into
consideration qualified candidates including
Nerio Madarang. Nevertheless, the CSC stood
pat on its resolution directing the appointment of
Nerio Madarang to the contested position.
On the other hand, the CSC contends that it
was properly exercising a constitutional and
legal duty to enforce the merit and fitness
principle in the appointment of civil servants
and to uphold their equally guaranteed right to
be appointed to similar or comparable
positions in the reorganized agency consistent
with applicable law and issuances of
competent authorities. 6
Invoking the following provisions of the
Constitution:
Section 3 (Article IX [B]).
The Civil Service Commission,
as the central personnel
agency of the
Government, shall establish a
career service and adopt
measures to promote morale,
efficiency, integrity,
responsiveness,
progressiveness, and courtesy
in the civil service. It shall
strengthen the writ and reward
system, integrate all human
resources development
programs for all levels and
ranks, and institutionalize a
management climate
conducive to public
accountability. It shall submit
to the President and the
Congress an annual report on
its personnel programs.'
(Emphasis supplied.);
Section 19, Book V of Executive Order No.
292 (The Administrative Code of 1987) which
provides:
Section 19. Recruitment and
Selection of Employees (l)
Opportunity for government
employment shall be open to
all qualified citizens, and
positive efforts shall be
exerted to attract the best
qualified to enter the service.
Employees shall be selected
on the basis of the fitness to
perform the duties and
assume the responsibilities of
the position.;
and Section 12 of the same Executive Order:
Sec. 12. The
Commission shall administer
the Civil Service and shall
have the following powers and
functions: (a) Administer and
enforce the constitutional and
statutory provision of the said
merit systems... (Emphasis
supplied.)
respondent CSC argues that the primary
objective of the CSC system is to promote and
establish professionalism by ensuring a high
level of morale among the employees and
officers in the career civil service. Pursuant to
this constitutional mandate, the CSC contends
it should see to it that the merit system is
applied, enforced and implemented in
personnel actions involving appointments
affecting all levels and ranks in the civil
service at all times. 7
The Court finds the petition to be impressed
with merit.
Paragraph H, Section 9 of Presidential Decree From the foregoing provision it is clear that the
No. 807, otherwise known as the 'Civil Service CSC has the power to approve or
Decree of the Philippines," provides: disapprove an appointment and not the power
to make the appointment itself or to direct that
Section 9. Powers and such appointment be made by the appointing
Function of the authority. The CSC can only inquire into the
Commission. The eligibility of the person chosen to fill a vacant
Commission shall administer position and it finds the person qualified it
the Civil Service and shall must so attest. The duty of the CSC is to
have the following powers and attest appointments. 8 That function being
functions: discharged, its participation in the appointment
process ceases. 9
xxx xxx xxx
By the same token, should the CSC find that
(h) Approve all appointments, the appointee is not qualified for the position,
whether original or it has the duty to disapprove the appointment.
promotional, to positions in the Thereafter, the responsibility of appointing the
civil service, except those of qualified person in lieu of the disqualified
presidential appointees, appointee rests upon the discretion of the
members of the Armed Forces appointing authority. The CSC cannot
of the Philippines, police encroach upon such discretion vested solely
forces, firemen, and jailguards, in the appointing authority.
and disapprove those where
the appointees do not possess This Court has pronounced in no uncertain
the appropriate eligibility or terms that the CSC has no authority to revoke
required qualifications. An an appointment on the ground that another
appointment shall take effect person is more qualified for a particular
immediately upon issue by the position. The Court likewise held that the CSC
appointing authority if the does not have the authority to direct the
appointee assumes his duties appointment of a substitute of its choice. 10
immediately and shall remain
effective until it is disapproved Petitioner demonstrated his deference to the
by the Commission, if this resolutions of the CSC disapproving the
should take place, without appointments of Agon and Magnayon.
prejudice to the liability of the However, in the implementation of said
appointing authority for resolutions he decided to convene the DOTC
appointments issued in Selection and Promotions Board to deliberate
violation of existing laws or on the person who should be appointed as
rules: Provided, finally, That Head Telecommunications Engineer among
the Commission shall keep a qualified candidates including respondent
record of appointments of all Nerio Madarang. Instead of acknowledging
officers and employees in the the authority of petitioner to exercise its
civil service. All appointments discretion in the appointment of a
requiring the approval of the replacement, the CSC, in excess of its
Commission as herein jurisdiction and with grave abuse of discretion
provided, shall be submitted to amounting to lack of jurisdiction, directed the
it by the appointing authority appointment of Madarang as the substitute of
within thirty days from its choice. This act of the CSC must be struck
issuance, otherwise the down.
appointment becomes
ineffective thirty days Private respondent Madarang, besides his
thereafter. (Emphasis comment, filed a motion to disqualify the
supplied) Office of the Solicitor General from appearing
for petitioner and to cite petitioner in contempt
of court for the filing of the petition.
The Solicitor General is the lawyer of the
government, its agencies and
instrumentalities, and its officials or agents
including petitioner and public respondent.
This is so provided under Presidential Decree
No. 478:
SECTION 1. Functions and
Organization. (1) The Office
of the Solicitor General shall
represent the Government of
the Philippines, its agencies
and instrumentalities and its
officials and agents in any
litigation, proceeding,
investigation or matter
requiring the services of a
lawyer. .... (Emphasis
supplied.) 10-A
In the discharge of this task the Solicitor
General must see to it that the best interest of
the government is upheld within the limits set
by law. When confronted with a situation
where one government office takes an
adverse position against another government
agency, as in this case, the Solicitor General
should not refrain from performing his duty as
the lawyer of the government. It is incumbent
upon him to present to the court what he
considers would legally uphold the best
interest of the government although it may run
counter to a client's position. 11 In such an
instance the government office adversely
affected by the position taken by the Solicitor
General, if it still believes in the merit of its case,
may appear in its own behalf through its legal
personnel or representative.
In the present case, it appears that after the
Solicitor General studied the issues he found
merit in the cause of the petitioner based on
the applicable law and jurisprudence. Thus, it
is his duty to represent the petitioner as he did
by filing this petition. He cannot be disqualified
from appearing for the petitioner even if in so
doing his representation runs against the
interests of the CSC.
This is not the first time that the Office of the
Solicitor General has taken a position adverse
to his clients like the CSC, the National Labor
Relations Commission, among others, and
even the People of the Philippines. In such
instances, the Solicitor General nevertheless
manifests his opinion and recommendation to
the Court which is an invaluable aid in the
disposition of the case. On some occasions
he begs leave to be excused from intervening
in the case, more so, when the client had
already filed its own comment different from
the stand of the Solicitor General or in a
situation when he finds the contention of a
private party tenable as against that of the
government or any of its agencies. The
Solicitor General has recommended the
acquittal of the accused in appealed criminal
cases.
There are cases where a government agency
declines the services of the Solicitor General
or otherwise fails or refuses to forward the
papers of the case to him for appropriate
action. The Court finds and so holds that this
practice should be stopped. 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 criminally or are being civilly
sued for damages arising from a felony. 12 His
services cannot be lightly rejected, much less
ignored by the office or officials concerned.
Indeed, the assistance of the Solicitor General
should be welcomed by the parties. He should
be given full support and cooperation by any
agency or official involved in litigation. He
should be enabled to faithfully discharge his
duties and responsibilities as the government
advocate. And he should do no less for his
clients. His burden of assisting in the fair and
just administration of justice is clear.
This Court does not expect the Solicitor
General to waver in the performance of his
duty. As a matter of fact, the Court appreciates
the participation of the Solicitor General in
many proceedings and his continued fealty to
his assigned task. He should not therefore
desist from appearing before this Court even
in those cases he finds his opinion
inconsistent with the Government or any of its
agents he is expected to represent. The Court
must be advised of his position just as well.
Private respondent Madarang also seeks to
hold petitioner in contempt of court on the
ground that the petition was filed in order to
circumvent or obviate the dismissal of a
similar petition in this Court filed by Guido
Agon and Alfonso Magnayon. The legal
personality of the petitioner to file the petition
is also questioned on the ground it was
Assistant Secretary Sibal and not the
petitioner who issued the contested
appointments.
The petitioner denies this contention. He
asserts that the petition was properly brought
in his name as head of the DOTC as what is
in issue is the reorganization of the said
department. The petitioner does not dispute
the disapproval of the appointments of Agon
and Magnayon; he only disagrees with the
order of the CSC directing the appointment of
Madarang to the contested position. The
petitioner also alleges that he was not aware
of the existence of a separate petition filed in
this Court by Agon and Magnayon.
The Court finds the arguments and assertions
of petitioner to be well taken.
It is true that the records of this Court show
that there is such a case docketed as G.R.
No. 92064 entitled "Guido Agon, et al., vs.
CSC et al." which is a special civil action for
certiorari with a prayer for a writ of preliminary
injunction. The petition was dismissed for late
filing in a resolution dated February 27, 1990.
On March 29, 1990 this Court denied with
finality the motion for reconsideration filed by
the said petitioners there being no compelling
reason to warrant the reversal of the
questioned resolution.
Apparently, the disapproval of the
appointments of Agon and Magnayon was the
issue in said petition. In the present petition as
aforestated, petitioner yields to the
disapproval of the appointment of the two, but
questions the authority of the CSC to direct
the appointment of Madarang to the contested
position.
WHEREFORE, the petition is GRANTED and
the questioned resolutions of the respondent
CSC dated August 29, 1989, November 2,
1989 and January 19, 1990 are hereby
annulled insofar as they direct the
appointment of Nerio Madarang to the
contested position. The petitioner is hereby
authorized to convene the DOTC Selection
and Promotion Board to determine who shall
replace Guido Agon and Alfonso Magnayon to
the contested position by considering all
qualified candidates including Nerio
Madarang. The restraining order dated March
29, 1990 is hereby made permanent. No
costs.
SO ORDERED.
G.R. No. 97351 February 4, 1992
RAMON A. GONZALES, petitioner,
vs.
HON. FRANCISCO I. CHAVEZ, in his
capacity as Solicitor General,
PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, and COMMISSION ON
AUDIT, respondents.
ROMERO, J.:
In the instant petition for mandamus and
prohibition with prayer for the issuance of a
temporary restraining order, petitioner submits
for the Court's adjudication the twin issues of
whether or not the Solicitor General neglected
his public duty by withdrawing as counsel for
the Republic of the Philippines and the
Presidential Commission on Good
Government (PCGG) in cases he had filed in
court and whether or not the PCGG acted
without or in excess of jurisdiction in hiring
private lawyers as a result of such withdrawal
of appearance.
Petitioner Ramon A. Gonzales, as a citizen
taxpayer, filed the petition as a class suit
under Section 12, Rule 3 of the Rules of Court
on the ground that the subject matters
involved are of common and general interest
to all Filipino citizens and taxpayers as they
pertain to the enforcement of a public duty
and the prevention of unlawful expenditure of
public funds.
According to the petitioner, the Solicitor
General is the counsel for the Republic and
the PCGG in thirty-three (33) cases before
this Court, one hundred nine (109) cases in
the Sandiganbayan, one (1) case in the
National Labor Relations Commission and
another case in the Municipal Trial Court or a
total of one hundred forty-four (144)
cases. 1 In December 1990, the Solicitor
General withdrew as counsel in said cases
through a pleading entitled "Withdrawal of
Appearance with Reservation." 2 The pleading
states:
The SOLICITOR GENERAL,
to this Honorable Court,
hereby respectfully withdraws
as counsel for plaintiff
Presidential Commission on
Good Government (PCGG) in
the above-captioned case,
with the reservation, however,
conformably with Presidential
Decree No. 478, the
provisions of Executive Order
No. 292 as well as the
decisional law of "Orbos v.
Civil Service Commission, et
al.," (G.R. No. 92561,
September 12, 1990), to
submit his
comment/observation on
incidents/matters pending with
this Honorable Court, if called
for by circumstances in the
interest of the government or if
he is so required by the court.
Makati, Metro Manila,
December 3, 1990.
(Sgd.) party-litigant.
IBP O.R. No. 289417-2.06.90
The Solicitor General filed a
substantially similar pleading in the
cases where the Republic is a party.
As a result of such withdrawal of appearance,
the PCGG hired forty (40) private lawyers,
nineteen (19) of whom are trial lawyers. They
would receive a monthly compensation of at
least P10,000.00 plus appearance fee of
P1,700.00 in actual trial and/or P500.00 if trial
is postponed. 3
Petitioner contends that since the Solicitor
General's withdrawal of appearance was
made without any reason, it implied that it was
"within the absolute discretion" of said public
official. Section 1 of Presidential Decree No.
478 and Section 35 of the Administrative
Code of 1987, however, mandatorily require
the Solicitor General to stand in the place of,
and act for the Republic and the PCGG in
court. Therefore, the Solicitor General has "no
discretion to reject by withdrawing" as counsel
for said entities.
Applying the ruling of this Court with respect
to a fiscal in Sta. Rosa Mining
Co. v. Zabala, 4 the petitioner further states that:
"Similarly, it is the duty of the Solicitor General to
appear for the Republic and the PCGG, hence
regardless of his personal convictions or
opinions, he must proceed to discharge his duty
(not withdraw, which is equivalent to refusal to
prosecute), and let the court decide the merits of
the case." 5
Moreover, petitioner avers that the Solicitor
General cannot withdraw his appearance
"with reservation" nor can he file his
"comment/observation on the
incident/matters" after such withdrawal
because by ceasing to appear as counsel, he
loses his standing in court. Unless a case
involves the constitutionality of a treaty, law,
ordinance or executive order for which Rule 3
Section 23 of the Rules of Court 6 mandates
his appearance, the Solicitor General is not
authorized to appear therein after his withdrawal
as counsel inasmuch as he himself is not a
FRANCISCO I. CHAVEZ
Furthermore, under Section 26, of Rule
138, 7 the Solicitor General may not unilaterally
withdraw his appearance without the consent of
the Republic or the PCGG unless the court
authorizes his withdrawal. Since there was no
such court authority, the Solicitor General's
withdrawal of appearance in said several cases
is null and void, as it constitutes an act against a
mandatory law and hence, it may be attacked
collaterally. Neither may the Solicitor General
withdraw on the authority of Orbos v. Civil
Service Commission 8 wherein this Court held:
In the discharge of this task
the Solicitor General must see
to it that the best interest of
the government is upheld
within the limits set by law. . .
xxx xxx xxx
There are cases where a
government agency declines
the services of the Solicitor
General or otherwise fails or
refuses to forward the papers
of the case to him for
appropriate action. . .
The Court finds and so holds
that this practice should be
stopped. 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 criminally or
are being civilly sued for
damages arising from a
felony. His services cannot be
lightly rejected, much less
ignored by the officer or
officials concerned.
Indeed, the assistance of the
Solicitor General should be
welcomed by the parties. He
should be given full support
and cooperation by any
agency or official involved in
litigation. He should be
enabled to faithfully discharge
his duties and responsibilities
as the government advocate.
And he should do no less for
his clients. His burden of
assisting in the fair and just
administration of justice is
clear.
This Court does not expect the
Solicitor General to waver in
the performance of his
duty. As a matter of fact, the
Court appreciates the
participation of the Solicitor
General in many proceedings
and his continued fealty to his
assigned task. He should not
therefore desist from
appearing before this Court
even in those cases he finds
his opinion inconsistent with
the government or any of its
agents he is expected to
represent. The Court must be
advised of his position just as
well. (Emphasis supplied)
The petitioner adds the following
observations: 9
Therefore, this case militates
more against the Solicitor
General than in his favor. For if
the government and its
officials cannot reject the
services of the Solicitor
General, neither may the latter
select the case he would
represent by withdrawing in
some and retaining others. For
unlike private lawyers who are
bound to their clients by
contract and, therefore, can
reject cases offered to them,
the Solicitor General and
PCGG are wedded to each
other by statute for better and
for worse. And only a divorce,
through the abolition of PCGG
or resignation of the Solicitor
General, can untie the marital
knot. Otherwise, the
 relationship should continue
sans PCGG demurring, and
the Solicitor General
withdrawing. Absent such
resignation or abolition, the
Solicitor General has to
prosecute or defend the said
cases to the best of his ability.
Hence, petitioner contends, the PCGG acted
without or in excess of jurisdiction in hiring
private lawyers as substitutes for the Solicitor
General. Nowhere in Executive Order Nos. 1,
2 and 14 does it appear that the PCGG is
authorized to hire said lawyers. Since the
Solicitor General is named by law as the
lawyer for all government agencies, the hiring
of private lawyers by such agencies is
impliedly excluded. Thus, by employing
private lawyers, the PCGG is creating a public
office and naming a public officer. However, in
the absence of a law providing for the creation
of the office of PCGG counsel, said hired
lawyers are usurpers or intruders whose acts
may be challenged in a collateral proceeding
such as an action for prohibition.
Similarly, petitioner asserts, prohibition will lie
against the Commission on Audit considering
that any payment for the services of the
PCGG-hired lawyers would result in an
unlawful expenditure of public funds.
Stressing the need to preserve the status
quo until the determination of his rights as a
citizen and taxpayer, petitioner prays for the
issuance of temporary restraining order.
Acting on the petition, however, the Court
required the respondent to file their respective
comments on the petition without granting the
prayer for a temporary restraining order. 10
In its comment, the Commission on Audit
(COA) alleges that it has not allowed the
disbursement of funds to pay for the services
of PCGG-hired private lawyers. It points out
the fact that under COA Circular No. 89-299
dated March 21, 1989, the COA has
withdrawn the pre-audit of transactions
entered into by national government agencies
pursuant to the constitutional provision that
the COA has the exclusive authority to "define
the scope of its audit and examination, to
establish the techniques and methods
required therefor." 11 Neither has the COA
allowed in post-audit the disbursements of funds
in payment of the services of the hired private
lawyers. Moreover, under COA Circular No. 86-
255 dated April 2, 1986, the hiring of private
lawyers by government agencies and
instrumentalities is prohibited unless there is
prior written conformity of the Solicitor General
or the Government Corporate Counsel, as the
case may be, as well as the written concurrence
of COA.
For its part, the PCGG, through Commissioner
Maximo A. Maceren and lawyer Eliseo B.
Alampay, asserts in its comment that the
scope of its authority under Executive Orders
Nos. 1, 2 and 14 is broad enough to include
the authority to engage the services of private
lawyers, if necessary, for the fulfillment of its
mandate. While such authority is not
expressly stated in said executive orders, "it
must be deemed necessarily implied in and
subsumed under the expressly enumerated
powers of the Commission." 12
The PCGG contends that its power under
Section 1 of Executive Order No. 14 to "file
and prosecute all cases investigated by it"
includes "the grant of discretion to the
Commission in determining the manner of
filing and prosecuting its cases including the
matter of who, in particular, will control and
supervise the prosecution of said cases." The
phrase "with the assistance of the Office of
the Solicitor General and other government
agencies" simply means that the Solicitor
General is called upon to render assistance to
the PCGG and whether or not such discretion
is required by the Commission is a matter of
discretion on its part. Such provision does not
preclude the PCGG from engaging the
services of private lawyers in the same way
that it is "clearly authorized to hire
accountants, appraisers, researchers and
other professionals as it performs its
functions." Since, upon the dictates of legal
and practical necessity, it has hired lawyers in
the United States and in Switzerland, "it may
similarly hire Filipino lawyers in prosecuting its
Philippine cases." 13
The PCGG further asserts that the hiring of
private lawyers is "not an ultra vires" act but a
"means by which (it) can effectively exercise
its powers." It emphasizes the fact that it hired
private lawyers "only after the Officer of the
Solicitor General had unilaterally withdrawn its
appearance" for the PCGG in the various
pending PCGG-instituted cases. Its own
Litigation Division, which was constituted after
the Solicitor General's withdrawal, is "sorely
undermanned" but it has to contend with
"affluent and influential individuals and
entities" who can "afford to hire skilled lawyers
and organize vast litigation networks." The
PCGG tried to seek the assistance of the
Department of Justice and the Office of the
Government Corporate Counsel but only the
former sent two additional prosecutors to
handle its cases. 14
The PCGG clarifies that its powers are
circumscribed not only by the executive orders
aforementioned but also by the inherent police
power of the State. By hiring private lawyers, it
was merely trying to assist the President of
the Philippines in protecting the interest of the
State. As such, it was acting as an alter ego of
the President and therefore, it was the
Executive which determined the necessity of
engaging the services of private prosecutors.
Contending that "overwhelming necessity"
impelled it to hire private lawyers, the PCGG
avers that inasmuch as the Central Bank of
the Philippines or the Philippine National Bank
may engage the services of private lawyers,
with more reason may it be allowed to hire
private prosecutors after it was abandoned by
the Solicitor General in the prosecution of the
ill-gotten wealth cases. Consequently, "the
Solicitor General's withdrawal of assistance is
tantamount to his tacit approval of the
PCGG's hiring of private prosecutors in
replacement of the solicitors handling the said
civil cases." 15
The PCGG concludes that the
reasonableness of the compensation for its
hired lawyers can hardly be questioned
considering the expertise of said lawyers and
the complexity of the cases they would be
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
petitioner seeks to prevent." 16
Solicitor General Francisco I. Chavez inhibits
himself from appearing in this case
"considering that as far as the Office of the
Solicitor General (OSG for brevity) is
concerned, the subject is a closed matter
among the OSG, the PCGG and the
Courts." 17 In the comment filed by Assistant
Solicitor General Edgardo L. Kilayko and
Solicitor Iderlina P. Pagunuran, the OSG sets out
at length the history of the PCGG from its
creation until the filing in the Sandiganbayan of
thirty-nine (39) " prima facie cases" for ill-gotten
wealth against former President Marcos and his
cronies. As suits and countersuits stemmed from
the original thirty-nine (39) civil cases, "the OSG
had been put to a tremendous task and thus
invariably in urgent need of being consulted or
informed by the PCGG of the facts and
circumstances material to the prosecution and
progress not only of the original 39 civil cases,
but also of all kinds of "incidents."
Nonetheless, the OSG lawyers faced the
challenge and the odds if only to live up to
their task as "the best lawyers there are in the
country." The OSG further explains: 18
On many a time, however a
time, however, the lack of the
above-mentioned consultation
or information resulted in
situations that rendered the
OSG unavoidably incapable of
performing its functions and
duties as Lawyer of the
Government, not only as
mandated upon it by law and
as spelled out in Orbos
v. CSC, G.R. No. 92561,
September 12, 1990, but also
in consonance with its office
motto: "Integrity In Advocacy."
Once the OSG argued before
the Sandiganbayan that an
asset was under
sequestration, only to be
informed by the adverse
party waving a document
before the Sandiganbayan
Justices that the sequestration
had earlier been lifted, with a
PCGG resolution, the
document, to boot (Razon
case). Then, again, OSG
argued, even before this
Honorable Court, that an ill-
gotten asset had
"mysteriously" disappeared,
only to be informed by the
Honorable Court, that a PCGG
Commissioner had earlier by
resolution authorized the
disposition of the asset
(COCOFED case). All the
instances need not be
enumerated here, as they are
not meat and substance, even
as OSG is rendered thereby a
laughing stock in its
professionalism.
As to matters that are of great
pith and moment, suffice it to
say that the recent Benedicto
"compromise" agreement, not
to mention the SMC-UCPB
Compromise settlement,
is sub judice or under
advisement not only of the
Sandiganbayan but also of this
Honorable Court in separate
"incidents," and suffice it to
state that the relationship,
obtaining between the
Government offices/agencies
and the Office of the Solicitor
General as counsel, is not at
all like one that simply would
obtain between private client
and private lawyer in private
practice, although constant
consultation and advice
are sine qua non in both types
of relationship. The
relationship is rather one,
created as it is by law, where
imposed upon OSG is the
responsibility to present to the
courts the position that will
uphold the best interests of the
People, the Government and
the State, albeit the same may
run counter to its client's
position or route of action. At
any rate, the PCGG through
nationwide TV broadcast and
print media, publicly
announced that PCGG had
disposed with or otherwise did
not need the legal services of
the Lawyer of the
Government, and thus OSG
descended, not the unmerited
remark of having "abandoned"
the ill-gotten wealth cases, but
the time-honored principle
of impossibilium nulla obligatio
est, i.e., there is no obligation
to do impossible things (Lim
Co Chui v. Paredes, 47 Phil.
463), without in any way
casting any aspersion on the
moral integrity of any
Commissioner or PCGG
official, as made clear by the
Solicitor General to the
President in a meeting with
PCGG.
Hence, in the light of all the
foregoing circumstances, at
rock-bottom precisely so as
not to prejudice "the interest of
the Government" (Orbos), the
Solicitor General withdrew as
counsel for PCGG in all said
cases by filing a notice of
"Withdrawal of Appearance
with Reservation."
In arguing that the instant petition should be
dismissed, the OSG contends that this case
has become moot and academic as this very
Court had resolved to allow the withdrawal of
appearance of the Solicitor General in all the
cases pending before it "with reservation,
conformably with PD No. 478, Executive
Order No. 292, as well as the doctrine laid
down in 'Orbos v. Civil Service Commission,
et al.,' G.R. No. 92561, September 12, 1990, .
. ." 19 For its part, the Sandiganbayan had also
resolved that "the appearance of the Solicitor
General is deemed withdrawn to be substituted
by the PCGG's legal panel." 20
The OSG maintains further that the instant
petition does not present a case and
controversy as the petitioner himself does not
even have a "court standing" and a "litigable
interest." All the petitioner seeks is an
"advisory opinion." The OSG asserts that the
"incident" (referring to the Solicitor General's
withdrawal of appearance) should be
distinguished from that in JPC Enterprise,
Inc. v. Court of Appeals, et al., 21 wherein the
Assets Privatization Trust (APT) decided to
appear for itself because the law names the
Minister of Justice only as its ex oficio legal
adviser while by itself it can file suits and
institute proceedings and engage external
expertise in the fulfillment of its tasks. However,
since the APT has no personality of its own, it
should have appeared through the Solicitor
General. The OSG argues that said "adversarial
incident" is not present in this case.
In his reply to the comments of the PCGG and
the OSG, the petitioner insists that although
as between the Solicitor General and the
PCGG, this case may have been rendered
moot and academic, as between him on the
one hand and the Solicitor General and the
PCGG on the other hand, a "real controversy"
still exists and the issues raised herein have
not ceased to exist either. Moreover, a
judgment of prohibition and mandamus would
have a "practical legal effect and can be
enforced." 22
Citing Miguel v. Zulueta, 23 and Taada
v. Tuvera, petitioner asserts that he has a
24
standing in court because where a question of
public right is involved and the object of
the mandamus is the enforcement of a public
duty, the relator need not show any legal or
special interest in the result of the proceeding. It
is sufficient that, as a citizen, he is interested in
having the laws executed and the duty in
question enforced.
The petitioner rebuts the PCGG's contention
that its power to hire private lawyers may be
implied from its expressly enumerated
powers. He asserts that since P.D. No. 478
mandates that "the Solicitor General as law
office of the government with the duty to
appear for the PCGG," no implication from the
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
that regarding the Solicitor General should be
harmonized. 25
The Court considers these pleadings sufficient
bases for resolving this petition and, on
account of the importance and imperativeness
of the issues raised herein, the filing of
memoranda by the parties is dispensed with.
We shall, first of all, confront a preliminary
issue interposed by the OSG whether or
not this case has been rendered moot and
academic by this Court's resolution granting
the Solicitor General's motion to withdraw
appearance as counsel in the several cases
pending herein. It should be clarified that the
resolution had to be issued with the national
interest in mind. Time was of the essence and
any hedging on the part of the PCGG and/or
its counsel could, not merely set back but
prejudice, the government's all-out efforts to
recover ill-gotten wealth.
Notwithstanding the ostensible mootness of
the issues raised in a case, this Court has
never shirked from its symbolic function of
educating bench and bar by formulating
guiding and controlling principles, precepts,
doctrines and rules. 26 More so, if the case is of
such magnitude that certain legal ambiguities
must be unravelled for the protection of the
national interest. 27
To allow the transcendental issue of whether
the OSG may withdraw its appearance in a
cluster of cases of national import to pass into
legal limbo simply because it has been
"mooted" would be a clear case of misguided
judicial self-restraint. This Court has
assiduously taken every opportunity to lay
down brick by brick the doctrinal infrastructure
of our legal system. Certainly, this is no time
for a display of judicial timorousness of the
kind which the Solicitor General is untimely
exhibiting now.
Accordingly, we confront the issue conscious
of their far-reaching implications, not alone on
the instant case but on future ones as well,
which the OSG will surely be called upon to
handle again and again.
The resolution of the first issue laid down at
the beginning of this ponencia hinges on
whether or not the Solicitor General may be
compelled by mandamus to appear for the
Republic and the PCGG. This issue is best
resolved by a close scrutiny of the nature and
extent of the power and authority lodged by
law on the Solicitor General.
At this juncture, a flashback on the statutory
origins of the Office of the Solicitor General is
in order. Incorporated in Act No. 136 dated
June 11,
1901 28 providing for the organization of courts in
the Philippine Islands was Chapter III entitled
"The Attorney General." Section 40 states:
There shall be an Attorney-
General for the Philippine
Islands, to be appointed by the
Philippine Commission . . .
The catalog of his duties includes the
following:
He shall prosecute or defend
therein all causes, civil and
criminal, to which the
Government of the Philippine
Islands, or any officer thereof,
in his official capacity, is a
party . . . 29
Section 41 further provides:
There shall be an officer
learned in the law to assist the
Attorney-General in the
performance of all his duties,
called the Solicitor-General
who shall be appointed by the
Commission . . . In case of a
vacancy in the office of
Attorney-General, or of his
absence or disability, the
Solicitor-General shall have
power to exercise the duties of
that office. Under the
supervision of the Attorney-
General, it shall be the
especial duty of the Solicitor-
General to conduct and argue
suits and appeals in the
Supreme Court, in which the
Philippine Government is
interested, and the Attorney-
General may, whenever he
deems it for the interest of the
Philippine Government, either
in person conduct and argue
any case in any court of the
Philippine Islands in which the
Philippine Government is
interested or may direct the
Solicitor General to do so.
(Emphasis supplied)
Six months later, a law was passed
reorganizing the Office of the Attorney-
General and providing for the appointment of
the said official and the Solicitor General by
the Civil Governor and for an increase in their
salaries. Their duties remained basically the
same. 30
In the meantime, Act No. 222 was passed on
September 5, 1901 providing for the
organization of, among others, the
Department of Finance and Justice which
embraced within its executive control the
Bureau of Justice. 31
Under Act No. 2711, otherwise known as the
Administrative Code of 1917, the Bureau of
Justice is specifically constituted "the law
office of the Government of the Philippine
Islands and by it shall be performed duties
requiring the services of a law officer." 32 Its
chief officials are the Attorney-General and his
assistant, the Solicitor General. 33
As principal law officer of the
Government, the Attorney-
General shall have authority to
act for and represent the
Government of the Philippine
Islands, its officers, and agents
in any official investigation,
proceeding, or matter requiring
the services of a lawyer. 34
In 1932, the office of the Attorney-General
was phased out and his functions were
assumed by the Secretary of
Justice. 35 Subsequently, the Bureau of Justice
came to be known as the Office of the Solicitor
General, 36 headed by the Solicitor General. 37
Parenthetically, these institutions were
patterned after the Office of Attorney-General,
created by the First U.S. Congress in the
Judiciary Act of 1789 which called for a "meet
person, learned in the law, to act as Attorney-
General for the U.S." 38 When the Department
of Justice was established in 1870, the position
of Solicitor-General was created as an assistant
to the Attorney-General. 39 Over a century later,
their respective positions and functions remain
the same. The Attorney-General of the United
States, appointed by the President with the
advice and consent of the Senate, is now the
head of the Department of Justice. 40 In the
same manner, a Solicitor General, learned in the
law, is appointed to assist the Attorney-General
in the performance of his duties. 41
In contrast, the Solicitor-General of the
Philippines, emerging from the shadow of the
Attorney-General and later, of the Secretary of
Justice, has come to his own. On July 20,
1948, Republic Act. No. 335, amending
Section 1659 of the Administrative Code,
bestowed on him the rank of Undersecretary
of a Department. Subsequently, a series of
amendatory laws designed to enlarge the
complement of the Office of the Solicitor
General was enacted 42 until on June 4, 1974,
by virtue of Presidential Decree No. 478, its
pivotal role in the government became clearly
defined and delineated.
During the martial law years, President
Ferdinand E. Marcos leaned heavily on his
Solicitor General to provide legal
underpinnings of his official acts. Reflective of
the tremendously enhanced power of the
official and the position was Executive Order
No. 454 enacted on September 23, 1975,
conferring upon the Solicitor General the rank
of a member of the Cabinet "with all the rights,
honors and privileges pertaining to the
position." Said executive order was
superseded by Executive Order No. 473
dated August 12, 1976 "making the Solicitor
Generala member of the Cabinet." These
executive orders were capped by Executive
Order No. 552 dated August 14, 1979
elevating the OSG into a Ministry with the
same powers and functions defined in P.D.
Nos. 478 and 1347.
P.D. 478 became, as it were, the Magna
Carta of the Office of the Solicitor General.
After the change of administration, or on July
25, 1987, President Corazon C. Aquino
signed into law Executive Order No. 292
instituting the Administrative Code of 1987.
Under Book IV, Title III, Chapter 12 thereof,
the Office of the Solicitor General is described
as an "independent and autonomous office
attached to the Department of Justice."
Headed by the Solicitor General, "who is the
principal law officer and legal defender of the
Government," the Office shall have a Legal
Staff composed of fifteen (15) Assistant
Solicitors General and such number of
Solicitors and Trial Attorneys "as may be
necessary to operate the Office which shall
divided into fifteen (15) divisions. 43 Among its
powers and functions are the following which are
relevant to the issues:
Sec. 35. Powers and
Functions. The office of the
Solicitor General shall
represent the Government of
the Philippines, its agencies
and instrumentalities and its
officials and agents in any
litigation, proceeding,
investigation or matter
requiring the services of a
lawyer. When authorized by
the President or head of the
office concerned, it shall also
represent government owned
or controlled corporations. The
Office of the Solicitor General
shall constitute the law office
of the Government, and, as
such, shall discharge duties
requiring the services of a
lawyer. (Emphasis supplied.) It
shall have the following
specific powers and functions:
(1) Represent
the
Government in
the Supreme
Court and the assist in the
Court of discharge of
Appeals in all the
criminal aforementione
proceedings; d
represent the responsibilities.
Government
and its officers xxx xxx xxx
in the Supreme
Court, the (8) Deputize
Court of legal officers of
Appeals, and government
all other courts departments,
or tribunals in bureaus,
all civil actions agencies and
and special offices to assist
proceedings in the Solicitor
which the General and
Government or appear or
any officer represent the
thereof in his Government in
official capacity cases involving
is a party. their respective
offices, brought
(2) Investigate, before the
initiate court courts and
action, or in exercise
any manner supervision
proceed and control
against any over such legal
person, Officers with
corporation or respect to such
firm for the cases.
enforcement of
any contract, (9) Call on any
bond, department,
guarantee, bureau, office,
mortgage, agency or
pledge or other instrumentality
collateral of the
executed in Government
favor of the for such
Government. service,
Where assistance and
proceedings cooperation as
are to be may be
conducted necessary in
outside of the fulfilling its
Philippines, the function and
Solicitor responsibilities
General may and for this
employ purpose enlist
counsel to the services of
any of the Republic
government of the
official or Philippines in
employees in international
the pursuit of litigations,
his tasks. negotiations or
conferences
Departments, where the legal
bureaus, position of the
agencies, Republic must
offices, be defended or
instrumentalitie presented.
s and
corporations to (11) Act for the
whom the Republic
Office of the and/or the
Solicitor people before
General any court,
renders legal tribunal, body
services are or commission
authorized to in any matter,
disburse funds action or
from their proceeding
sundry which, in his
operating and opinion ,
other funds for affects the
the latter welfare of the
Office. For this people as the
purpose, the ends of justice
Solicitor may require;
General and and
his staff are
specifically (12) Perform
authorized to such other
receive functions as
allowances as may be
may be provided by
provided by the law. 44
Government
offices, In thus tracing the origins of the Office of the
instrumentalitie Solicitor General to gain a clear
s and understanding of the nature of the functions
corporations and extent of the powers of the Solicitor
concerned, in General himself, it is evident that a policy
addition to their decision was made in the early beginnings to
regular consolidate in one official the discharge of
compensation. legal functions and services in the
government. These took the form mostly of
(10) representing the Government in various legal
Represent, proceedings.
upon the
instructions of
the President
The rationale behind this step is not difficult to
comprehend. Sound government operations
require consistency in legal policies and
practices among the instrumentalities of the
State. Moreover, an official learned in the law
and skilled in advocacy could best plan and
coordinate the strategies and moves of the
legal battles of the different arms of the
government. Surely, the economy factor, too,
must have weighed heavily in arriving at such
a decision.
It is patent that the intent of the lawmaker was
to give the designated official, the Solicitor
General, in this case, the unequivocal
mandate to appear for the government in legal
proceedings. Spread out in the laws creating
the office is the discernible intent which may
be gathered from the term "shall," which is
invariably employed, from Act No. 136 (1901)
to the more recent Executive Order No. 292
(1987).
Under the principles of statutory construction,
so familiar even to law students, the term
"shall" is nothing if not mandatory.
In common or ordinary
parlance and in its ordinary
significance, the term "shall" is
a word of command, and one
which has always and which
must be given a compulsory
meaning, and it is generally
imperative or mandatory. It has
the invariable significance of
operating to impose a duty
which may be enforced,
particularly if public policy is in
favor of this meaning or when
public interest is involved, or
where the public or persons
have rights which ought to be
exercised or enforced, unless
a contrary intent appears. 45
The presumption is that the
word "shall" in a statute is used
in an imperative, and not in a
directory, sense. If a different
interpretations if sought, it must
rest upon something in the
character of the legislation or in
the context which will justify a
different meaning. 46
Exactly what is the signification of the
mandate for the OSG "to represent the
Government of the Philippines, its agencies
and instrumentalities and its officials and
agents in any litigation, proceeding,
investigations or matter requiring the services
of the lawyer?"
To "represent" is standing in
place, supplying the place, or
performing the duties or
exercising the rights, of the
party represented; to speak or
act with authority on behalf of
another; to conduct and
control proceedings in court on
behalf of another. 47
The decision of this Court as early as 1910
with respect to the duties of Attorney-General
well applies to the Solicitor General under the
facts of the present case. The Court then
declared:
In this jurisdiction, it is
the duty of the Attorney
General "to perform the duties
imposed upon him by law" and
"he shall prosecute all causes,
civil and criminal, to which the
Government of the Philippines
Islands, or any officer thereof,
in his official capacity, is a
party . . ." 48
Being a public officer, the Solicitor General is
"invested with some portion of the sovereign
functions of the government, to be exercised
by him for the benefit of the public." 49 Another
role of the Solicitor General is an officer of the
Court, in which case he is called upon "to share
in the task and responsibility of dispensing
justice and resolving disputes;" therefore, he
may be enjoined in the same manner that a
special prosecutor was sought enjoined by this
Court from committing any act which may tend
to "obstruct, pervert or impede and degrade the
administration of justice." 50
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
Court granted a petition for mandamusto own Solicitor General may even dismiss,
compel him to prosecute the case. We abandon, discontinue or compromise suit either
declared: with or without stipulations with other
party. 53 Abandonment of a case, however, does
Notwithstanding his personal not mean that the Solicitor General may just
drop it without any legal and valid reason for the
convictions or opinions, the
discretion given him is not unlimited. 54 Its
fiscal must proceed with his
exercise must be, not only within the parameters
duty of presenting evidence to set by law but with the best interest of the State
the Court to enable the court as the ultimate goal. Such are reflected in its
to arrive at its own policies, thus:
independent judgment as to
the culpability of the accused.
The discretionary power of the
The fiscal should not shirk
attorney for the United States
from his responsibility much
in determining whether a
less leave the prosecution of
prosecution shall be
the case at the hands of a
commenced or maintained
private prosecutor . . . In the
may well depend upon matters
trial of criminal cases, it is the
of policy wholly apart from any
duty of the public prosecutor to
question of probable cause.
appear for the government
Although as member of the
since an offense is an outrage
bar, the Attorney for the United
to the sovereignty of the
States is an officer of the
State . . . This is so because
court, he is nevertheless an
"the prosecuting officer is the
executive official of the
representative not of an
Government, and it is as an
ordinary party to a controversy
officer of the executive
but of a sovereignty where
department that he exercises
obligation to govern impartially
a discretion as to whether or
is as compelling as its
not there shall be a
obligations to govern at all;
prosecution in a particular
and whose interest, therefore,
case. . . . 55
in criminal prosecution is not
that it shall win a case, but that
justice shall be done. As such, The first executive order ever issued by
he is in a peculiar and very President Aquino on February 28, 1986,
definite sense the servant of created the PCGG. It announced the
the law, the two-fold aim of government's policy of recovering all ill-gotten
which is that guilt shall not wealth amassed by former President Marcos,
escape or innocence suffer. 51 his immediate family, relatives and close
associates. It charged the PCGG with the
"task of assisting the President" in regard to
Undoubtedly, the above arguments apply
the recovery of all ill-gotten wealth,
equally well to the Solicitor General who is
investigation of "such cases of graft and
sought to be compelled to appear before the
corruption as the President may assign" to it,
different courts to ensure that the case of the
and the adoption of safeguards to ensure that
Republic of the Philippines against those who
corruption may not be again committed with
illegally amassed wealth at the expense the
impunity.
people maybe made to account for their
misdeeds and return said wealth.
This issuance was followed by Executive
Order No. 2 dated March 12, 1986 freezing all
assets and properties of Marcos, his family
and cronies; prohibiting their transfer,
conveyance, encumbrance or concealment,
and requiring all persons in and outside of the
Philippines who are in possession of said
properties to make full disclosure of the same
to the PCGG.
On April 11, 1986, the PCGG promulgated its
Rules and Regulations. A pertinent provision
states:
Sec. 10. Findings of the
Commission. Based on the
evidence adduced, the
Commission shall determine
whether there is reasonable
ground to believe that the
asset, property or business
enterprise in question
constitute ill-gotten wealth as
described in Executive Orders
Nos. 1 and 2. In the event of
an affirmative finding, the
Commission shall certify the
case to the Solicitor General
for appropriate action in
accordance with law.
Business, properties, funds,
and other assets found to be
lawfully acquired shall be
immediately released and the
writ of sequestration, hold or
freeze orders lifted
accordingly. (Emphasis
supplied)
Thereafter, or on May 7, 1986, Executive
Order No. 14 defining the jurisdiction over
cases involving such ill-gotten wealth was
issued, it contains the following provisions:
Sec. 1. Any provision of law to
the contrary notwithstanding,
the Presidential Commission
on Good Government, with the
assistance of the Solicitor
General and other
government agencies, is
hereby empowered to file and
prosecute all cases
investigated by it under
Executive Order No. 1, dated
February 28, 1986, and
Executive Order No. 2, dated
March 12, 1986, as may be
warranted by its finding.
Sec. 2. The Presidential
Commission on Good
Government shall file all such
cases, whether civil or
criminal, with the
Sandiganbayan, which shall
have exclusive and original
jurisdiction thereof.
Sec. 3. Civil suits for
restitution, reparation of
damages, or indemnification
for consequential damages,
forfeiture proceedings
provided for under Republic
Act No. 1379, or any other civil
actions under the Civil Code or
other existing laws, in
connection with Executive
Order No. 2 dated March 12,
1986, may be filed separately
from and proceed
independently of any criminal
proceedings and may be
proved by a preponderance of
evidence. (Emphasis
supplied).
All these legal provisions ineluctably lead to
no other conclusion but that under the law of
its creation and the complementary Rules, the
law office of the PCGG, as it is for the rest of
the Government, is the Office of the Solicitor
General. Although the PCGG is "empowered
to file and prosecute all cases investigated by
it" under Executive Orders No. 1 and 2, it
does not thereby oust the Office of the
Solicitor General from its lawful mandate to
represent the Government and its agencies in
any litigation, proceeding, investigation or
matter requiring the services of a lawyer.
Moreover, such express grant of power to
PCGG does not imply that it may abdicate
such power and turn over the prosecution of
the cases to private lawyers whom it may
decide to employ. In those instances where
proceedings are to be conducted outside of
the Philippines, the Solicitor General,
continuing to discharge his duties, may
employ counsel to assist him, 56 particularly
because he may not be licensed to appear
before the courts in a foreign jurisdiction.
Under its own Rules and Regulations,
specifically the provision aforequoted, the
PCGG certifies to the Solicitor General the
cases for which it had found reasonable
ground to believe that certain assets and
properties are ill-gotten under Executive Order
Nos. 1 and 2. The Solicitor General shall then
proceed "in accordance with law."
Upon receipt of a case certified to him, the
Solicitor General exercises his discretion in
the management of the case. He may start the
prosecution of the case by filing the
appropriate action in court or he may opt not
to file the case at all. He may do everything
within his legal authority but always
conformably with the national interest and the
policy of the government on the matter at
hand.
After filing a case, he may even move for its
dismissal in the event that, along the way, he
realizes that prosecuting the case would not
serve the government's purposes. In other
words, because he was appointed to the
position on account of his qualification as a
man "learned in the law," the Solicitor General
is obligated to perform his functions and to
perform them well. He may not, however,
abdicate his function through an arbitrary
exercise of his discretion. We find that a
withdrawal of appearance on flimsy or petty
grounds is tantamount to withdrawing on no
grounds at all and to a dereliction of duty.
The Office of the Solicitor General repeatedly
invoked the ruling in Orbos v. Civil Service
Commission, 57 which hardly constitutes
authority to uphold its position with respect to
the withdrawal of the Solicitor General in the
instant case. On the contrary, in said case, this
Court struck down private respondent's motion
to disqualify the OSG from appearing for
petitioner Department of Transportation and
Communications Secretary Orbos. At the risk of
being repetitious, the parties were reminded that
under Section 1 of Presidential Decree No. 478
The Office of the Solicitor
General shall represent the
Government of the Philippines,
its agencies and
instrumentalities and its
officials and agents in any
litigation, proceeding,
investigation, or matter
requiring the services of a
lawyer. (Emphasis supplied)
This Court clarified that even when
"confronted with a situation where one
government office takes an adverse position
against another government agency, as in this
case, the Solicitor General should not refrain
from performing his duty as the lawyer of the
government. It is incumbent upon him to
present to the court what he considers would
legally uphold the best interest of the
government although it may run counter to a
client's position. In such an instance, the
government office adversely affected by the
position taken by the Solicitor General, if it still
believes in the merit of its case may appear in
its own behalf through its legal personnel or
representative."
The Court further pointed out that it is not
entirely impossible that the Office of the
Solicitor General may take a position adverse
to his clients like the Civil Service Commission
and the National Labor Relations
Commission, among others, and even the
People of the Philippines. In such instances,
however, it is not proper for the Solicitor
General to simply decline to handle the case
or arbitrarily withdraw therefrom. The Court
enjoins him to "nevertheless manifest his
opinion and recommendations to the Court
which is an invaluable aid in the disposition of
the case." 58
However, in those cases where a government
agency declines the services of the Solicitor
General or otherwise fails or refuses to
forward the papers of the case to him for
appropriate action, the Court categorically
held that ". . . this practice should be
estopped." 59 By the same token, the Solicitor
General should not decline to appear in court to
represent a government agency without just and
valid reason, especially the PCGG which is
under the Office of the President, he being a part
of the Executive Department.
In the case at bar, the reason advanced by
the Solicitor General for his motion to
withdraw his appearance as lawyer for the
PCGG is that he has been, more than once
embarrassed in court and thereby made "a
laughing stock in its (his) professionalism."
Examples are when the OSG lawyers
betrayed ignorance in open court of certain
moves taken by the PCGG, such as the lifting
of a sequestration of an asset or when it was
under the impression that an asset had
mysteriously disappeared only to be informed
that "a PCGG Commissioner had earlier by
resolution authorized the disposition of said
asset."
The last straw, as it were, was the public
announcement through media made by the
PCGG that it had "dispensed with or
otherwise did not need the legal services of
the lawyer of the government." 60 It is evident
that the withdrawal of the Solicitor General was
precipitated by institutional pique, the lawyers
concerned having allowed their collective pride
to prevail over their sense of duty in protecting
and upholding the public interest.
One wistfully wishes that the OSG could have
been as zealous in representing the PCGG as
it was in appearing for the head of their office,
the Solicitor General, in a civil suit for
damages filed against him in a Regional Trial
Court arising from allegedly defamatory
remarks uttered by him.
Such enthusiasm, according to this Court, was
misplaced. For Section 1 of Presidential
Decree No. 478 which authorizes the OSG to
represent the Government of the Philippines,
its agencies and instrumentalities and its
officials and agents in any litigation, admits of
an exception, and that it is, it stops short of
representing "a public official at any stage of a
criminal case or in a civil suit for damages
arising from a felony." 61
In instances such as the above, the OSG can,
with reason, withdraw its representation even
if it has already entered its appearance. But
the Solicitor General, as the officially-
mandated lawyer of the government, is not
empowered to take a similar step on the basis
of a petty reason like embarrassment, as that
to which the individual lawyers assigned to
appear for their office were subjected. Had
they not been too preoccupied with their
personal feelings, they could have checked
themselves in time. For a sense of
professional responsibility and proper
decorum would dictate that they distinguish
between the institution which, from the very
beginning, had been constituted as the law
office of the Government and
the individuals through whom its powers and
duties are exercised. No emotions, of
whatever kind and degree, should be allowed
to becloud their high sense of duty and
commitment to country and people.
The OSG itself admitted refraining from citing
other incidents as additional bases for the
Solicitor General's withdrawal "as they are not
of meat and substance" but apparently, their
overwhelming sense of shame overcame
them as the OSG was "rendered thereby a
laughing stock in its professionalism." 62
Now a word on the incidents that allegedly
caused humiliation to the OSG lawyers, thus
provoking the Solicitor General into
withdrawing his appearance as counsel for
the PCGG. No litigation can be assured of
success if counsel does not enjoy the
confidence of his client. This is manifested by,
among other things, holding regular, constant
and untrammeled consultation with each
other. Who can say but that if the
communication lines had been kept open
between the OSG and PCGG, no surprises
would have been sprung on the former by the
latter in open court?
Petitioner's claim that the Solicitor General
could not withdraw his appearance as lawyer
of PCGG inasmuch as he had neither the
consent of his client nor the authority from the
court, applying the pertinent provision of the
Rules of Court, is not well-taken. Here is no
ordinary lawyer-client relationship. Let it be
remembered that the client is no less than the
Republic of the Philippines in whom the
plenum of sovereignty resides. Whether
regarded as an abstract entity or an ideal
person, it is to state the obvious that it can
only act through the instrumentality of the
government which, according to the
Administrative Code of 1987, refers to the
"corporate governmental entity through which
the functions of government are exercised
throughout the Philippines . . ." 63 And the OSG
is, by law, constituted the law office of the
Government whose specific powers and
functions include that of representing the
Republic and/or the people before any court in
any action which affects the welfare of the
people as the ends of justice may require.
Indeed, in the final analysis, it is the Filipino
people as a collectivity that constitutes the
Republic of the Philippines. Thus, the
distinguished client of the OSG is the people
themselves of which the individual lawyers in
said office are a part.
In order to cushion the impact of his untimely
withdrawal of appearance which might
adversely affect the case, the Solicitor
General has offered "to submit his
comment/observation on incidents/matters
pending with this Honorable Court, if called for
by circumstances in the interest of the
government or if he is so required by the
court." However, as correctly pointed out by
the petitioner, while the Solicitor General may
be free to express his views and comments
before the Court in connection with a case he
is handling, he may not do so anymore after
he has formally expressed his refusal to
appear therein. For by then, he has lost his
standing in court. Unless his views are sought
by the court, the Solicitor General may not
voluntarily appear in behalf of his client after
his withdrawal from the case; otherwise, such
reappearance would constitute a blatant
disregard for court rules and procedure, and
that, on the part of one who is presumed to be
"learned in the law."
In the face of such express refusal on the part
of the Solicitor General to continue his
appearance as counsel of the PCGG in the
cases to recover the ill-gotten wealth of the
Filipino people from the Marcoses and their
cronies, the PCGG has had to employ the
service of a group of private attorneys lest the
national interest be prejudiced. Were this
Court to allow such action to remain
unchallenged, this could well signal the laying
down of the novel and unprecedented
doctrine that the representation by the
Solicitor General of the Government
enunciated by law is, after all, not mandatory
but merely directory. Worse, that this option
may be exercised on less than meritorious
grounds; not on substance but on whimsy,
depending on the all too human frailties of the
lawyers in the OSG assigned to a particular
case. Under such circumstances, it were
better to repeal the law than leave the various
government agencies, all dependent on the
OSG for legal representation, in a condition of
suspenseful uncertainty. With every looming
legal battle, they will be speculating whether
they can rely on the Solicitor General to
defend the Government's interest or whether
they shall have to depend on their own "in-
house" resources for legal assistance.
The Court is firmly convinced that, considering
the spirit and the letter of the law, there can be
no other logical interpretation of Sec. 35 of the
Administrative Code than that it is, indeed,
mandatory upon the OSG to "represent the
Government of the Philippines, its agencies
and instrumentalities and its officials and
agents in any litigation, proceeding,
investigation or matter requiring the services
of a lawyer."
Sound management policies require that the
government's approach to legal problems and
policies formulated on legal issues be
harmonized and coordinated by a specific
agency. The government owes it to its officials
and their respective offices, the political units
at different levels, the public and the various
sectors, local and international, that have
dealings with it, to assure them of a degree of
certitude and predictability in matters of legal
import.
From the historical and statutory perspectives
detailed earlier in this ponencia, it is beyond
cavil that it is the Solicitor General who has
been conferred the singular honor and
privilege of being the "principal law officer and
legal defender of the Government." One
would be hard put to name a single legal
group or law firm that can match the expertise,
experience, resources, staff and prestige of
the OSG which were painstakingly built up for
almost a century.
Moreover, endowed with a broad perspective
that spans the legal interests of virtually the
entire government officialdom, the OSG may
be expected to transcend the parochial
concerns of a particular client agency and
instead, promote and protect the public weal.
Given such objectivity, it can discern,
metaphorically speaking, the panoply that is
the forest and not just the individual trees. Not
merely will it strive for a legal victory
circumscribed by the narrow interests of the
client office or official, but as well, the vast
concerns of the sovereign which it is
committed to serve.
In light of the foregoing, the Solicitor General's
withdrawal of his appearance on behalf of the
PCGG was beyond the scope of his authority
in the management of a case. As a public
official, it is his sworn duty to provide legal
services to the Government, particularly to
represent it in litigations. And such duty may
be enjoined upon him by the writ
of mandamus. And such duty may be enjoined
upon him by the writ of mandamus. Such
order, however, should not be construed to
mean that his discretion in the handling of his
cases may be interfered with. The Court is not
compelling him to act in a particular
way. 64 Rather, the Court is directing him to
prevent a failure of justice 65resulting from his
abandonment in midstream of the cause of the
PCGG and the Republic and ultimately, of the
Filipino people.
In view of the foregoing, there need be no
proof adduced that the petitioner has a
personal interest in the case, as his petition is
anchored on the right of the people, through
the PCGG and the Republic, to be
represented in court by the public officer duly
authorized by law. The requirement of
personal interest is satisfied by the mere fact
that the petitioner is a citizen and hence, part
of the public which possesses the right. 66
The writ of prohibition, however, may not be
similarly treated and granted in this petition.
The said writ, being intended to prevent the
doing of some act that is about to be done, it
may not provide a remedy for acts which are
already fait accompli. 67 Having been placed in
a situation where it was constrained to hire
private lawyers if the Republic's campaign to
legally recover the wealth amassed by the
Marcoses, their friends and relatives was to
prosper, the PCGG's action is justified. However,
it was not entirely blameless. Its failure to
coordinate closely with the Solicitor General has
spawned the incidents which culminated in the
withdrawal of the latter from appearing as
counsel in its cases.
WHEREFORE, the petition for a writ
of mandamus is hereby GRANTED. The
Solicitor General is DIRECTED to immediately
re-enter his appearance in the cases wherein
he had filed a motion to withdraw appearance
and the PCGG shall terminate the services of
the lawyers it had employed but not before
paying them the reasonable fees due them in
accordance with rules and regulations of the
Commission on Audit.
This decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez,
Jr., Cruz, Paras, Padilla, Bidin, Grio-Aquino,
Medialdea, Regalado, Davide, Jr. and Nocon,
JJ., concur.
Feliciano, J., concurs in the result.
anuary 9, 1973
IN THE MATTER OF THE INTEGRATION OF
THE BAR OF THE PHILIPPINES.
RESOLUTION
PER CURIAM:
On December 1, 1972, the Commission on
Bar Integration 1 submitted its Report dated
November 30, 1972, with the "earnest
recommendation" on the basis of the
said Report and the proceedings had in
Administrative Case No. 526 2 of the Court, and
"consistently with the views and counsel
received from its [the Commission's] Board of
Consultants, as well as the overwhelming
nationwide sentiment of the Philippine Bench
and Bar" that "this Honorable Court ordain
the integration of the Philippine Bar as soon as
possible through the adoption and promulgation
of an appropriate Court Rule."
The petition in Adm. Case No. 526 formally
prays the Court to order the integration of the
Philippine Bar, after due hearing, giving
recognition as far as possible and practicable
to existing provincial and other local Bar
associations. On August 16, 1962, arguments
in favor of as well as in opposition to the
petition were orally expounded before the
Court. Written oppositions were
admitted, 3 and all parties were thereafter
granted leave to file written memoranda. 4
Since then, the Court has closely observed
and followed significant developments relative
to the matter of the integration of the Bar in
this jurisdiction.
In 1970, convinced from preliminary surveys
that there had grown a strong nationwide
sentiment in favor of Bar integration, the Court
created the Commission on Bar Integration for
the purpose of ascertaining the advisability of
unifying the Philippine Bar.
In September, 1971, Congress passed House
Bill No. 3277 entitled "An Act Providing for the
Integration of the Philippine Bar, and
Appropriating Funds Therefor." The measure
was signed by President Ferdinand E. Marcos
on September 17, 1971 and took effect on the
same day as Rep. Act 6397. This law provides
as follows:
SECTION 1. Within two years
from the approval of this Act,
the Supreme Court may adopt
rules of court to effect the
integration of the Philippine
Bar under such conditions as it
shall see fit in order to raise
the standards of the legal
profession, improve the
administration of justice, and
enable the Bar to discharge its
public responsibility more
effectively.
SEC. 2. The sum of five
hundred thousand pesos is
hereby appropriated, out of
any funds in the National
Treasury not otherwise
appropriated, to carry out the
purposes of this Act.
Thereafter, such sums as may
be necessary for the same
purpose shall be included in
the annual appropriations for
the Supreme Court.
SEC. 3. This Act shall take
effect upon its approval.
The Report of the Commission abounds with
argument on the constitutionality of Bar
integration and contains all necessary factual
data bearing on the advisability (practicability
and necessity) of Bar integration. Also
embodied therein are the views, opinions,
sentiments, comments and observations of
the rank and file of the Philippine lawyer
population relative to Bar integration, as well
as a proposed integration Court Rule drafted
by the Commission and presented to them by
that body in a national Bar plebiscite. There is
thus sufficient basis as well as ample material
upon which the Court may decide whether or
not to integrate the Philippine Bar at this time.
The following are the pertinent issues:
(1) Does the Court have the
power to integrate the
Philippine Bar?
(2) Would the integration of
the Bar be constitutional?
(3) Should the Court ordain
the integration of the Bar at
this time?
A resolution of these issues requires, at the supervision and regulation by
outset, a statement of the meaning of Bar the Supreme Court.
integration. It will suffice, for this purpose, to
adopt the concept given by the Commission The purposes of an integrated
on Bar Integration on pages 3 to 5 of Bar, in general, are:
its Report, thus:
(1) Assist in the administration
Integration of the Philippine of justice;
Bar means the official
unification of the entire lawyer (2) Foster and maintain on the
population of the Philippines. part of its members high ideals
This of integrity, learning,
requires membership and fina professional competence,
ncial support (in reasonable public service and conduct;
amount) of every attorney as
conditions sine qua non to the
(3) Safeguard the professional
practice of law and the
interests of its members;
retention of his name in the
Roll of Attorneys of the
Supreme Court. (4) Cultivate among its
members a spirit of cordiality
and brotherhood;
The term "Bar" refers to the
collectivity of all persons
whose names appear in the (5) Provide a forum for the
Roll of Attorneys. An discussion of law,
Integrated Bar (or Unified Bar) jurisprudence, law reform,
perforce must include all pleading, practice and
lawyers. procedure, and the relations of
the Bar to the Bench and to
the public, and publish
Complete unification is not
information relating thereto;
possible unless it is decreed
by an entity with power to do
so: the State. Bar integration, (6) Encourage and foster legal
therefore, signifies the setting education;
up by Government authority of
a national organization of the (7) Promote a continuing
legal profession based on the program of legal research in
recognition of the lawyer as an substantive and adjective law,
officer of the court. and make reports and
recommendations thereon;
Designed to improve the and
position of the Bar as an
instrumentality of justice and (8) Enable the Bar to
the Rule of Law, integration discharge its public
fosters cohesion among responsibility effectively.
lawyers, and ensures, through
their own organized action and Integration of the Bar will,
participation, the promotion of among other things, make it
the objectives of the legal possible for the legal
profession, pursuant to the profession to:
principle of maximum Bar
autonomy with minimum
(1) Render more effective
assistance in maintaining the
Rule of Law;
(2) Protect lawyers and
litigants against the abuse of
tyrannical judges and
prosecuting officers;
(3) Discharge, fully and
properly, its responsibility in
the disciplining and/or removal
of incompetent and unworthy
judges and prosecuting
officers;
(4) Shield the judiciary, which
traditionally cannot defend
itself except within its own
forum, from the assaults that
politics and self-interest may
level at it, and assist it to
maintain its integrity,
impartiality and independence;
(5) Have an effective voice in
the selection of judges and
prosecuting officers;
(6) Prevent the unauthorized
practice of law, and break up
any monopoly of local practice
maintained through influence
or position;
(7) Establish welfare funds for
families of disabled and
deceased lawyers;
(8) Provide placement
services, and establish legal
aid offices and set up lawyer
reference services throughout
the country so that the poor
may not lack competent legal
service;
(9) Distribute educational and
informational materials that
are difficult to obtain in many
of our provinces;
(10) Devise and maintain a
program of continuing legal
education for practising
attorneys in order to elevate
the standards of the
profession throughout the
country;
(11) Enforce rigid ethical
standards, and promulgate
minimum fees schedules;
(12) Create law centers and
establish law libraries for legal
research;
(13) Conduct campaigns to
educate the people on their
legal rights and obligations, on
the importance of preventive
legal advice, and on the
functions and duties of the
Filipino lawyer; and
(14) Generate and maintain
pervasive and meaningful
country-wide involvement of
the lawyer population in the
solution of the multifarious
problems that afflict the nation.
Anent the first issue, the Court is of the view
that it may integrate the Philippine Bar in the
exercise of its power, under Article VIII, Sec.
13 of the Constitution, "to promulgate rules
concerning pleading, practice, and procedure
in all courts, and the admission to the practice
of law." Indeed, the power to integrate is an
inherent part of the Court's constitutional
authority over the Bar. In providing that "the
Supreme Court may adopt rules of court to
effect the integration of the Philippine Bar,"
Republic Act 6397 neither confers a new
power nor restricts the Court's inherent power,
but is a mere legislative declaration that the
integration of the Bar will promote public
interest or, more specifically, will "raise the
standards of the legal profession, improve the
administration of justice, and enable the Bar
to discharge its public responsibility more
effectively."
Resolution of the second issue whether the
unification of the Bar would be constitutional
hinges on the effects of Bar integration on
the lawyer's constitutional rights of freedom of
association and freedom of speech, and on
the nature of the dues exacted from him.
The Court approvingly quotes the following
pertinent discussion made by the Commission
on Bar Integration pages 44 to 49 of its
Report:
Constitutionality of Bar
Integration
Judicial Pronouncements.
In all cases where the validity
of Bar integration measures
has been put in issue, the
Courts have upheld their
constitutionality.
The judicial pronouncements
support this reasoning:
Courts have inherent power
to supervise and regulate the
practice of law.
The practice of law is not a
vested right but a privilege; a
privilege, moreover, clothed
with public interest, because a
lawyer owes duties not only to
his client, but also to his
brethren in the profession, to
the courts, and to the nation;
and takes part in one of the
most important functions of the
State, the administration of
justice, as an officer of the
court.
Because the practice of law
is privilege clothed with public
interest, it is far and just that
the exercise of that privilege
be regulated to assure
compliance with the lawyer's
public responsibilities.
These public
responsibilities can best be
discharged through collective
action; but there can be no
collective action without an
organized body; no organized
body can operate effectively
without incurring expenses;
therefore, it is fair and just that
all attorneys be required to
contribute to the support of
such organized body; and,
given existing Bar conditions,
the most efficient means of
doing so is by integrating the
Bar through a rule of court that
requires all lawyers to pay
annual dues to the Integrated
Bar.
1. Freedom of Association.
To compel a lawyer to be a
member of an integrated Bar
is not violative of his
constitutional freedom to
associate (or the corollary right
not to associate).
Integration does not make a
lawyer a member of any group
of which he is not already a
member. He became a
member of the Bar when he
passed the Bar examinations.
All that integration actually
does is to provide an official
national organization for the
well-defined but unorganized
and incohesive group of which
every lawyer is already a
member.
Bar integration does not
compel the lawyer to associate
with anyone. He is free to
attend or not attend the
meetings of his Integrated Bar
Chapter or vote or refuse to
vote in its elections as he
chooses. The body
compulsion to which he is
subjected is the payment of
annual dues.
Otherwise stated, membership
in the Unified Bar imposes
only the duty to pay dues in
reasonable amount. The issue
therefore, is a question of
compelled financial support of
group activities, not
involuntary membership in any
other aspect.
The greater part of Unified Bar
activities serves the function of
elevating the educational and
ethical standards of the Bar to
the end of improving the
quality of the legal service
available to the people. The
Supreme Court, in order to
further the State's legitimate
interest in elevating the quality
of professional services, may
require that the cost of
improving the profession in
this fashion be shared by the
subjects and beneficiaries of
the regulatory program the
lawyers.
Assuming that Bar integration
does compel a lawyer to be a
member of the Integrated Bar,
such compulsion is justified as
an exercise of the police
power of the State. The legal
profession has long been
regarded as a proper subject
of legislative regulation and
control. Moreover, the inherent
power of the Supreme Court to
regulate the Bar includes the
authority to integrate the Bar.
2. Regulatory Fee.
For the Court to prescribe
dues to be paid by the
members does not mean that
the Court levies a tax.
A membership fee in the
Integrated Bar is an exaction
for regulation, while the
purpose of a tax is revenue. If
the Court has inherent power
to regulate the Bar, it follows
that as an incident to
regulation, it may impose a
membership fee for that
purpose. It would not be
possible to push through an
Integrated Bar program
without means to defray the
concomitant expenses. The
doctrine of implied powers
necessarily includes the power
to impose such an exaction.
The only limitation upon the
State's power to regulate the
Bar is that the regulation does
not impose an unconstitutional
burden. The public interest
promoted by the integration of
the Bar far outweighs the
inconsequential inconvenience
to a member that might result
from his required payment of
annual dues.
3. Freedom of Speech.
A lawyer is free, as he has
always been, to voice his
views on any subject in any
manner he wishes, even
though such views be
opposed to positions taken by
the Unified Bar.
For the Integrated Bar to use a
member's due to promote
measures to which said
member is opposed, would not
nullify or adversely affect his
freedom of speech.
Since a State may
constitutionally condition the
right to practice law upon
membership in the Integrated
Bar, it is difficult to understand
why it should become
unconstitutional for the Bar to
use the member's dues to
fulfill the very purposes for
which it was established.
The objection would make
every Governmental exaction
the material of a "free speech"
issue. Even the income tax
would be suspect. The
objection would carry us to
lengths that have never been
dreamed of. The conscientious
objector, if his liberties were to
be thus extended, might
refuse to contribute taxes in
furtherance of war or of any
other end condemned by his
conscience as irreligious or
immoral. The right of private
judgment has never yet been
exalted above the powers and
the compulsion of the
agencies of Government.
4. Fair to All Lawyers.
Bar integration is not unfair to
lawyers already practising
because although the
requirement to pay annual
dues is a new regulation, it will
give the members of the Bar a
new system which they
hitherto have not had and
through which, by proper work,
they will receive benefits they
have not heretofore enjoyed,
and discharge their public
responsibilities in a more
effective manner than they
have been able to do in the
past. Because the requirement
to pay dues is a valid exercise
of regulatory power by the
Court, because it will apply
equally to all lawyers, young
and old, at the time Bar
integration takes effect, and
because it is a new regulation
in exchange for new benefits,
it is not retroactive, it is not
unequal, it is not unfair.
To resolve the third and final issue whether
the Court should ordain the integration of the
Bar at this time requires a careful overview
of the practicability and necessity as well as
the advantages and disadvantages of Bar
integration.
In many other jurisdictions, notably in
England, Canada and the United States, Bar
integration has yielded the following benefits:
(1) improved discipline among the members of
the Bar; (2) greater influence and ascendancy
of the Bar; (3) better and more meaningful
participation of the individual lawyer in the
activities of the Integrated Bar; (4) greater Bar
facilities and services; (5) elimination of
unauthorized practice; (6) avoidance of costly
membership campaigns; (7) establishment of
an official status for the Bar; (8) more
cohesive profession; and (9) better and more
effective discharge by the Bar of its
obligations and responsibilities to its
members, to the courts, and to the public. No
less than these salutary consequences are
envisioned and in fact expected from the
unification of the Philippine Bar.
Upon the other hand, it has been variously
argued that in the event of integration,
Government authority will dominate the Bar;
local Bar associations will be weakened;
cliquism will be the inevitable result; effective
lobbying will not be possible; the Bar will
become an impersonal Bar; and politics will
intrude into its affairs.
It is noteworthy, however, that these and other
evils prophesied by opponents of Bar
integration have failed to materialize in over
fifty years of Bar integration experience in
England, Canada and the United States. In all
the jurisdictions where the Integrated Bar has
been tried, none of the abuses or evils feared
has arisen; on the other hand, it has restored
public confidence in the Bar, enlarged
professional consciousness, energized the
Bar's responsibilities to the public, and vastly
improved the administration of justice.
How do the Filipino lawyers themselves
regard Bar integration? The official statistics
compiled by the Commission on Bar
integration show that in the national
poll recently conducted by the Commission in
the matter of the integration of the Philippine
Bar, of a total of 15,090 lawyers from all over
the archipelago who have turned in their
individual responses, 14,555 (or 96.45 per
cent) voted in favor of Bar integration, while
only 378 (or 2.51 per cent) voted against it,
and 157 (or 1.04 per cent) are non-commital.
In addition, a total of eighty (80) local Bar
association and lawyers' groups all over the
Philippines have submitted resolutions and
other expressions of unqualified endorsement
and/or support for Bar integration, while not a
single local Bar association or lawyers' group
has expressed opposed position thereto.
Finally, of the 13,802 individual lawyers who
cast their plebiscite ballots on the proposed
integration Court Rule drafted by the
Commission, 12,855 (or 93.14 per cent) voted
in favor thereof, 662 (or 4.80 per cent) vote
against it, and 285 (or 2.06 per cent) are non-
committal. 5 All these clearly indicate an
overwhelming nationwide demand for Bar
integration at this time.
The Court is fully convinced, after a
thoroughgoing conscientious study of all the
arguments adduced in Adm. Case No. 526
and the authoritative materials and the mass
of factual data contained in the
exhaustive Report of the Commission on Bar
Integration, that the integration of the
Philippine Bar is "perfectly constitutional and
legally unobjectionable," within the context of
contemporary conditions in the Philippines,
has become an imperative means to raise the
standards of the legal profession, improve the
administration of justice, and enable the Bar
to discharge its public responsibility fully and
effectively.
ACCORDINGLY, the Court, by virtue of the
power vested in it by Section 13 of Article VIII
of the Constitution, hereby ordains the
integration of the Bar of the Philippines in
accordance with the attached COURT RULE,
effective on January 16, 1973.
Concepcion, C.J., Makalintal, Zaldivar,
Castillo, Fernando, Teehankee, Barredo,
Makasiar, Antonio and Esguerra, JJ., concur.
Footnotes
1 Created by Supreme Court Resolution of
October 5, 1970 "for the purpose of
ascertaining the advisability of the
integration of the Bar in this jurisdiction,"
the Commission is composed of Supreme
Court Associate Justice Fred Ruiz Castro
(Chairman), Senator Jose J. Roy, retired
Supreme Court Associate Justice Conrado
V. Sanchez, Supreme Court Associate
Justice (then Court of Appeals Presiding
Justice) Salvador V. Esguerra, U. P. Law
Center Director Crisolito Pascual, Ex-
Senator Tecla San Andres Ziga, and San
Beda Law Dean and Constitutional
Convention Delegate Feliciano Jover
Ledesma (Members).
2 Filed on July 11, 1962 (by a Committee
composed of Jose W. Diokno, Roman
Ozaeta, Jose P. Carag, Eugenio
Villanueva, Jr. and Leo A. Panuncialman),
the petition represented the unanimous
consensus of 53 Bar Associations (from all
over the Philippines) reached in convention
at the Far Eastern University Auditorium in
Manila on June 23, 1962.
3 Written oppositions were submitted by
Attys. Cesar Fajardo and Vicente L.
Arcega, the Camarines Norte Lawyers
League, Atty. Fructuoso S. Villarin, the
Camarines Sur Bar Association and the
Manila Bar Association.
4 The Petitioners and the Negros
Occidental Bar Association submitted
memoranda in favor of Bar integration,
while the Manila Bar Association
submitted a memoranda opposing Bar
integration.
5 All figures are as of January 8, 1973.