FLAG lawyers move to disqualify OSG from sedition probe

MANILA, Philippines – The Free Legal Assistance Group (FLAG) formally moved to disqualify the Office of the Solicitor General (OSG) from the ongoing preliminary investigation at the Department of Justice (DOJ) into the inciting to sedition complaint filed against key opposition figures.

"It is respectfully prayed that the Office of the Solicitor General be disqualified in this preliminary investigation as counsel for the Philippine National Police Criminal Investigation and Detection Group (CIDG) and all actions shown to have taken by the OSG be declared null and void for being ultra vires (beyond one's legal power)," said the motion submitted to the DOJ last Wednesday, August 14, by FLAG lawyers Ted Te, Chel Diokno, and Erin Tañada.

Te, Diokno, and Tañada are all respondents in the complaint for allegedly participating in the so-called Project Sodoma that supposedly seeks to take down President Rodrigo Duterte's government. The CIDG's main witness is Peter Joemel Advincula alias Bikoy, who has made massive flip-flops in his story since 2016.

The DOJ investigating panel has already asked the OSG to justify its authority to act as lawyer for the CIDG. The DOJ's move was triggered by FLAG's lead counsel Arno Sanidad, but the motion formally seeks the disqualification of the OSG.

FLAG has also asked to invalidate the DOJ panel investigating the complaint, arguing that it was illegally formed.

What do laws say? The primary mandate of the OSG is to "represent the Government in the Supreme Court (SC) and the Court of Appeals (CA) in all criminal proceedings; represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party," according to its own law.

Former solicitor general Florin Hilbay, also a respondent in the complaint, cited the primary mandate in saying that the OSG only comes in when the case has reached the appeals level at the CA or the SC.

The DOJ is a prosecutorial level proceeding, or preliminary investigation. (READ: Meet the lawyers fighting Bikoy's sedition complaint)

In the August 9 hearing, Assistant Solicitor General Angelita Miranda cited Section 35 (11) of Executive Order (EO) No. 292 which empowers the OSG to "act and represent the Republic and/or the people before any court, tribunal, body or commission in any matter, action or proceeding which, in his opinion, affects the welfare of the people as the ends of justice may require."

The provision gave the OSG a wide scope for its participation. EO No. 292 was signed on July 25, 1987.

The FLAG lawyers are citing an SC decision from 1990, which says: "The said Office participates in a criminal case only when the same has reached the appellate courts. It is the office of the city, provincial or state prosecutor, as the case may be, and not the Office of the Solicitor General, which attends to the investigation and the prosecution of criminal cases in the first instance."

The case being cited is Urbano vs Chavez which dealt specifically with the question of whether the OSG can represent a public officer in a preliminary investigation.

"While the position of the OSG initially had basis in jurisprudential history it no longer holds true," said FLAG's motion.

Hilbay earlier said that the law envisioned the OSG to freely resolve cases on appeal, which it would not be able to do so if it participates in criminal prosecution.

The motion reiterated that legal argument: "It can be concluded that if the OSG lawyers for a respondent public officer during a preliminary investigation, it effectively fetters itself to a position that would prevent it from credibly performing its role as the government's appellate counsel should that respondent's conviction be challenged on appeal."

Can it act as tribune of the people? This is not the first time that the OSG has participated in a criminal prosecution in the time of Duterte. Miranda also represented the CIDG in the preliminary investigation of fugitive Peter Lim, who is facing drug charges before the Makati City Regional Trial Court.

Hilbay said that the OSG under him did not participate in a preliminary investigation.

Miranda told the DOJ during the August 9 hearing that it is acting as tribune of the people, which is the justification often used by Solicitor General Jose Calida in other tasks he undertook to bring down Duterte critics.

On the legal side, FLAG lawyers said "the ostensible client of the OSG is the PNP-CIDG, which is not, by any stretch, the People of the Philippines. This, by itself, shows that the OSG's invocation of the 'People's Tribune' justification has no basis."

The next hearing is on September 6.  Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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