OSG's new role: Lawyers for anti-communist task force, even for Esperon

The Office of the Solicitor General (OSG) has added a new item to its expanding list of roles – lawyering for the presidential anti-communist task force, even for what seems like a private case for National Security Adviser (NSA) General Hermogenes Esperon Jr.

These details were revealed by ACT-Teachers Partylist Representative France Castro on Friday, September 18, during House deliberations on the 2021 budget of the Department of Justice (DOJ) and all its attached agencies, including the OSG.

Castro said it seemed that OSG lawyered for Esperon when the NSA filed perjury cases against activists.

"Ano po ang role ng OSG dito kasi nakita ko dun sa kaso, OSG ang parang lawyer. So ito po ba ay papel din ng OSG sa isang private na case ay naglo-lawyer ang OSG?" Castro asked.

(What is the role of the OSG here because I saw in the case, it seemed OSG was the lawyer. So is it also the OSG's role to lawyer in a private case?)

Esperon's perjury case was a countersuit because the activists sought protective writs against the military and other government officials, including him, before the Supreme Court.

Esperon's suit against all activists was initially dismissed, save for one nun, on account of a revoked registration of the Rural Missionaries of the Philippines, but Esperon appealed before a different prosecutor and eventually got the indictment he wanted. All activists have been ordered arrested for that case, and all have posted bail.

Not denying the fact, Solicitor General Jose Calida simply said: "Our mandate under the law is to defend the government, the republic, this is our job."

Government or private case?

Castro said she was "not satisfied" with Calida's answer and turned to Justice Secretary Menardo Guevarra for an opinion: Is General Esperon's perjury case against activists considered a case for the government that needs state lawyers from OSG?

Guevarra admitted he has not studied the case enough to make a categorical answer on the nature of Esperon's case.

But the justice secretary said, "if it's a private matter for damages or something like that, it is my opinion that the OSG, even though the party concerned is a government official, will not have a proper role to perform, because that is a purely private matter involving a government official."

The OSG's expanding role has been questioned a lot of times, most recently when it represented the police in the inciting to sedition complaint filed against members of the opposition over the Bikoy Ang Narcolist videos. 

NTF-ELCAC

The main conflict is this: the OSG is the government's statutory counsel. It would lawyer for people who face the DOJ prosecution, and if the indictment is appealed at the Court of Appeals, it has to lawyer for the DOJ, too. 

But where others see conflict, the DOJ and OSG see division of labor.

Justice Undersecretary Adrian Sugay confirmed on Friday that the OSG has been assisting the Duterte-created National Task Force to End Local Communist Armed Conflict (NTF-ELCAC).

"As a general rule, that would have been the role of the DOJ but considering that many of these complaints in connection with the task force find their way with the DOJ and with our prosecution service, we had an agreement with the NTF-ELCAC that the matter of legal cooperation cluster should be handled by the OSG," said Sugay.

"I understand also that it is in this capacity that the (OSG) assisted (Esperon) with regard to the filing of the perjury cases, which was resolved by our city prosecutor in Quezon City; it is in connection with the work of the NTF-ELCAC," said Sugay.

Calida was not able to give any clarification on the OSG's work with NTF-ELCAC because of technical difficulties on Zoom.

What the 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.

But the OSG has 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."

Former solicitor general Florin Hilbay earlier said that the wisdom of the OSG law was to give the office utmost freedom to act on cases on appeal, which is its primary mandate. Hilbay said this should prohibit them from participating in cases at the complaint and investigative levels.

"Kung nakikialam na sila sa imbestigasyon pa lang, wala na 'yung kalayaan na 'yun, masisira ang intensyon ng batas (If they are already interfering at the investigation level, they lose that freedom; they will go against the intent of the law)," Hilbay said. 

Just recently, OSG requested the Supreme Court for the Statements of Assets, Liabilities, and Net Worth (SALN) of Associate Justice Marvic Leonen for the purpose of building up a quo warranto petition, but the en banc unanimously rejected his request.

OSG's approved budget for 2021 is P1.116 billion, but the DOJ is asking it be given P1.289 billion – higher than its current 2020 budget of P1.062 billion. – 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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