The
Office of the Solicitor General (OSG), as mandated by law, is tasked 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”[1]
and is, naturally, widely known as such. However, it may not be as well known
that the OSG is also the Tribune of the People and, at times, may take a
position contrary to that of the Government in fulfilling its duty in advancing
and protecting the rights of the People.
Unfortunately,
there is few jurisprudence that would mention the OSG as such. Majority of such
cases would focus merely on procedural matters, i.e., when the OSG is permitted
to sign the verification and certificate of non-forum shopping in behalf of its
client agency. More substantial matters would include the case of Freedom from Debt Coalition vs. Energy
Regulatory Commission[2]
(wherein the OSG agreed that the EPIRA IRR should be void for non-publication).
In a more recent case (although the Court did not mention the OSG as the Tribune
of the People), the Court was “surprised” that the OSG supported the
petitioners, Ang Ladlad, in their
accreditation as party-list despite being disqualified by the COMELEC.[3]
The
Supreme Court, in Gonzales v. Chavez[4],
has recognized this discretion of the Solicitor General to “dismiss, abandon,
discontinue or compromise suit”. However, it held that it was not absolute and
must be for valid and legal reasons exercised within parameters set by law and,
more importantly, “with the best interest of the State as an ultimate goal.”
Being
the People’s Tribune is truly of noble cause, but it is apparent that there are
not too many cases where the OSG would go against the Government. After all,
the Solicitor General (SG) is also an executive official of the Government.
These two obligatory roles are most difficult to fulfill when one is against
the other. Arguably, the scales are tilted more often in favor of the
Government because of the nature of the SG’s appointment. The SG is in ranks
with the cabinet members and is appointed and removed at the pleasure of the
President. Moreover, since the President is tasked with the appointment of
Supreme Court (SC) Justices, it is quite possible that those vying for a seat
in the SC would have to get on the good side of the appointing authority.
This
possible politicking has been recognized in explanatory notes of bills filed
before the Senate and House of Representatives, to wit: The President’s insulation
from political pressure is crucial and necessary for the proper performance of
his duty to uphold the interest of the State and to faithfully carry out his
role as Tribune of the People.[5]
Thus, both Bills sought the seven-year term of the SG without reappointment as
well as its fiscal autonomy (vis-à-vis its current attachment to the Department
of Justice for budgetary purposes).
Both
bills envision concrete ways to depoliticize the OSG. However, even Judge Learned
Hand had once said that there is no concrete and royal road to the tolerable
accommodation of conflicting interest of society. [6] When conflict of interest kicks in, we cannot
entirely depend on laws and regulations to help the Solicitor General make a
choice because, at the end of the day, it is his/her discretion on which side
to take. Hopefully, it would be the choice to be the Tribune of the People.
[1] Executive Order No. 292 (Administrative Code of 1987), Book IV,
Title III, Chapter 12, Section 35
[2] G.R. No. 161113, June 15,
2004
[3] G.R. No. 190582, April 8, 2010
[4] G.R. No. 97351, February
4, 1992
[5] Senate Bill No. 3564 Explanatory Note (Introduced by Senate
President Juan Ponce Enrile), January 10, 2011
[6] The Great Judge by Philip Hamburger (1946)
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