Counsel Of The State

>>> Shared from the Original Post at Manila Standard

“These counsels are expected to have special legal skills, knowledge, and training to protect and advance the evolving interests of the State.”

The public often confuses the roles, duties, and responsibilities of lawyers working in government. They also frequently hear the Prosecutor, the Solicitor General, the Government Corporate Counsel, and the Special Prosecutor, among others, being categorized as counsels of the State.

The Office of the Prosecutor, aside from conducting preliminary investigations, is duty bound to prosecute criminal cases in the trial courts. The Rules of Criminal Procedure mandates that “[a]ll criminal actions … shall be prosecuted under the direction and control of the public prosecutor” (Section 5, Rule 110, Rules of Criminal Procedure).

This control extends to court appearances and filings of pleadings and motions in courts. It applies even if the offended party retains the services of a private prosecutor for the civil aspect of the case. The control is manifested when the private prosecutor states in open court that he or she is “under the direction and control of the public prosecutor”.

Hence, if the public prosecutor is absent in a trial or hearing, the court setting will be cancelled despite the presence of the private prosecutor. However, the private prosecutor may be authorized by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case even in the absence of the public prosecutor, subject to the approval of the court (Section 5, Rule 110).

The public prosecutor’s control over all filings of pleadings and motions is made more evident by the necessity of a written conformity to all court submissions made by the private prosecutor. The requirement of a written conformity is not dispensed with by the issuance of a written authority to prosecute in favor of the private prosecutor.

The Office of the Solicitor General (OSG) represents the Philippine Government, its agencies and instrumentalities, its officials and agents in a litigation, proceeding, investigation or any matter requiring the services of a lawyer. It may represent government-owned and controlled corporations, when authorized by the President or head of the office concerned (Presidential Decree No. 478, June 4, 1974).

The OSG’s power to represent the Philippine Government extends to all civil actions and special proceedings in which the government or any of its officers is a party (Presidential Decree No. 478). Examples are actions for Cancellation or Correction of Entries in the Civil Registry, Quo Warranto, or Petition for Certiorari against any branch or instrumentality of the government.

The OSG represents the government in the Supreme Court and the Court of Appeals in all criminal cases. It is at this point where the power of control of the prosecutor over criminal cases ceases. The OSG also appears in all proceedings involving the acquisition and loss of Philippine citizenship (Presidential Decree No. 478).

It represents the government in all land registration proceedings and has the power to commence actions for the reversion of public land to the government. The OSG may appear or intervene in any action involving the validity of a statute, executive order, governmental regulation, or treaty (Presidential Decree No.478). Examples of these cases are Declaratory Relief, and the constitutionality of a law, treaty, or executive agreement.

The President may instruct the OSG to represent the government in international litigation and arbitration where the legal position of the Philippines has to be represented (Presidential Decree No. 478). Examples include the arbitration case of the Philippine International Air Terminals Co. (PIATCO) against the Philippines involving NAIA Terminal III, and the arbitral proceedings between the Philippines and China on their respective maritime claims in the West Philippine Sea.

There is also the Office of the Government Corporate Counsel (OGCC), which is the principal and statutory law office of all government-owned or controlled corporations (GOCCs), their subsidiaries, corporate offspring, and government-acquired asset corporations, as well as government instrumentalities vested with corporate powers, or government corporate entities (OGCC Rules and Regulations).

The legal work of the OGCC covers the fields of: (1) Gaming & Allied Services; (2) Ecozones; (3) Information & Energy; (4) Environment & Water; (5) Banking & Finance; (6) Transportation, Communication & Infrastructure; (7) Agriculture & Trade; and (8) Housing & Urban Development. The OGCC shall only accept cases that have been officially endorsed by the GOCC through its duly authorized office (OGCC Rules and Regulations).

The OGCC represents GOCCs in litigating their cases in courts or quasi-judicial bodies in the Philippines and abroad. It also handles criminal cases filed by GOCCs complaining against any party. The legal assistance extended by the OGCC to the GOCCs shall include all aspects of private prosecution including the recovery of civil liability arising from the crime (OGCC Rules and Regulations).

The OGCC has the power to prepare and recommend revisions or modifications to the contracts of GOCCs, and to render legal opinions on questions referred by the GOCCs. The OGCC shall encourage the settlement of claims, disputes, and controversies involving GOCCs through early neutral evaluation, mediation, or arbitration (OGCC Rules and Regulations).

Another counsel of the government is the Office of the Special Prosecutor. This office is under the supervision, control, and authority of the Ombudsman. The office has the power to conduct preliminary investigation and to prosecute criminal cases within the jurisdiction of the Sandiganbayan. (Republic Act 6770). They are equivalent to the prosecutors in regular courts.

There are as many counsels of State as there are government and public interests. These counsels are expected to have special legal skills, knowledge, and training to protect and advance the evolving interests of the State.

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Tranquil G.S. Salvador III
  • Tranquil G.S. Salvador III