[ANALYSIS | Deep Dive] Does the President really need so many lawyers?

 

 

They go by different titles – Chief Presidential Legal Counsel (CPLC), Solicitor General (SolGen), Secretary of Justice (SOJ) – but they are all the President’s lawyers, giving advice to him directly or his government.

But why does he need 3, isn’t one lawyer enough? What happens when they disagree with each other?

Just recently, the President’s lawyers differed on the remedy to take from the decision of a trial court that denied a request for the issuance of a warrant of arrest. In that particular instance, it was the Secretary of Justice, who had a different position, who prevailed over the CPLC and the Solicitor General, who were in agreement with each other. 

In this Deep Dive, we look at how the CPLC, the SOJ, and the SolGen differ from each other in terms of roles, powers, functions, and duties.

The President’s lawyer

The CPLC, currently Salvador Panelo, is the President’s lawyer. His mandate and powers are spelled out in Memorandum Order No. 235 (s. 2006), amending Memorandum Order No. 152 (s. 2004).

The CPLC “shall advise the President…on matters requiring (his/her) action” and shall, among others, “(r)eview and/or draft legal orders referred to him by the President on the following matters that are the subject of decisions by the President.” This mandate to “review and/or draft legal orders….subject of decisions by the President” means that the CPLC is most likely the final filter before presidential approval of any order or instruction.

The Secretary of Justice

Under Executive Order No. 292 or Revised Administrative Code of 1987, the Secretary of Justice, currently Menardo Guevarra, is the Attorney General, the government’s lawyer, and also its chief prosecutor. He is also the ex-officio legal adviser of government-owned or controlled corporations (GOCC) and their subsidiaries.

He settles controversies between/among government agencies, including government-owned and controlled corporations, including their subsidiaries. He acts on all queries and/or requests for legal advice and guidance from private parties and other officials and employees of the government. The SOJ also sits on the Judicial and Bar Council.

The SOJ may be viewed as the head of the largest law office in the country – with prosecutors, defense counsel, and investigators (through the National Bureau of Investigation) nationwide under his charge – and due to his role as legal advisor of government, his/her duties and the discharge thereof are clearly imbued with the greatest degree of public interest.

The Solicitor General

Also under EO 292, specifically sections 34 and 35, the SolGen, currently Jose Calida, is the government’s principal law officer and defender but also the Tribune of the People.

His mandate is to represent the Government, 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, he shall also represent government-owned or controlled corporations.

Notably, while the SolGen is expressly mandated to represent the Government, he is also expressly mandated to be the “Tribune of the People” or the “People’s Tribune.” Section 35 (11) expressly empowers the SolGen to “(a)ct 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.”  

In his concurring opinion in Poe-Llamanzares v. Comelec,[1] Associate Justice Francis H. Jardeleza, himself a former Solicitor General, said that “(w)hen the Solicitor General acts as the People’s Tribune, 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 the position of the affected government office.”

Under this mandate as “People’s Tribune,” the SolGen may opt not to defend the government but to act for the Republic and the people if he believes that it would be in the best interests of the Republic not to defend government.

Practical dynamics

Of the 3, only the CPLC is the President’s lawyer, as the SOJ and the SolGen both perform functions that directly impact on governance and the public, and not just on the President. The SOJ is tasked with administering the justice machinery while the SolGen represents the government and, in specific cases, the People.

Does the President really need so many lawyers?

Because the burden of the presidency is heavy, with multifarious demands all having legal implications and consequences, the President is expected to secure the best legal advice available. Thus, the triumvirate of the CPLC, SOJ, and SolGen is expected to provide the best legal advice to the President.

While more does not necessarily mean better, the more fundamental question is asked: will the President listen?

Can these functions be merged into one, to avoid conflicting opinions?

The short answer is “no” even if on at least two previous occasions, the Secretary of Justice has acted as the Solicitor General.

Estelito Mendoza was Ferdinand Marcos’ longtime minister of justice and concurrent solicitor general from 1972 to 1986. Alberto Agra was Gloria Arroyo’s acting solicitor general and concurrently acting secretary of justice, a designation that was challenged for being in violation of Article VII, section 13 of the 1987 Constitution.

The Supreme Court, in Funa v. Agra, struck down Agra’s dual designation as acting solicitor general and concurrently acting secretary of justice as it violated Article VII, Section 13 of the 1987 Constitution expressly prohibiting, among others, Cabinet members from holding any other office or employment. Following Funa, these 3 lawyer positions – CPLC, SOJ, and SolGen – cannot be merged into one person.

Do we realistically expect these lawyers to disagree with the President, or give legal advice that he may not like?

The ideal answer would be “yes” but the realistic answer is “no.”

As members of the Cabinet without tenure, the CPLC, the SOJ, and the SolGen may be transferred or removed by the President, as he sees fit.  For this reason, it would be unrealistic to think that they would go against the President’s desired positions.

Every lawyer is expected to do what is best for his client, or his principal but every lawyer is also bound “to uphold the constitution, obey the laws of the land and promote respect for law and for legal processes” under Canon 1 of the Code of Professional Responsibility which, under Canon 6, is expressly made applicable to lawyers in the government service.

Ideally, and if the President’s lawyers take these burdens seriously, we should expect and not be surprised that all 3 may, on occasion, have different and possibly conflicting opinions because the lens through which each views his or her role and the discharge of respective mandates are different.

But as things are not ideal, it is both not surprising and not unexpected that all 3 lawyers will tend to speak consistently and uniformly with the same voice – the President’s, which begs the question we started out with: does the President need so many lawyers? – Rappler.com 

Theodore Te, Ted to many, is a human rights lawyer and advocate, law educator, font geek and comic book fan, occasional movie and music reviewer, a life-long Boston Celtics fan and a loud opponent of the death penalty, violations of human rights, government abuse, and social injustice. Deep Dive is his attempt at probing into issues of law and rights, politics and governance (and occasionally entertainment and sports) beyond the headlines, the sound bites, the spin, and the buzz.

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[1]; G.R. No. 221697 and 221698-700, March 8, 2016