Case Summary (G.R. No. 102549)
Regulatory Framework for Practice of Profession by Local Officials
Memorandum Circular No. 80-38 (June 10, 1980) amended MC No. 80-18 to align with Joint Commission Circular No. 9-A, incorporating Justice Department Opinion No. 46 (1973) which allowed local legislative members to practice their professions provided they secured written authority from the Regional Director under MC No. 74-58 and refrained from using government personnel, property, or resources. Section 7(b)(2) of RA 6713 prohibits public officials from engaging in private practice that conflicts with their official functions.
Development of Guidelines and Requests for Authorization
A formal administrative hearing was held in Iloilo City on August 13, 1990. On September 10, 1990, Javellana requested from the DLG written permission to continue practicing law; Secretary Santos replied that he interposed no objection, provided the practice did not conflict with official duties. On September 21, 1991, Santos issued DLG Memorandum Circular No. 90-81, prescribing that permission must be granted by the Secretary of Local Government, that no government time or resources be used, that conflicts of interest be avoided, and that outside professional hours be fixed to prevent impairment of official functions.
Motion to Dismiss and Constitutional Challenges
On March 25, 1991, Javellana moved to dismiss Administrative Case No. C-10-90, contending that DLG MC Nos. 80-38 and 90-81 were unconstitutional because only the Supreme Court may regulate the practice of law under Article VIII, Section 5(5) of the 1987 Constitution. The DLG denied the motion on May 2, 1991, and again on reconsideration on June 20, 1991. Javellana then filed a petition for certiorari before the Supreme Court.
Local Government Code of 1991 Provisions
Republic Act No. 7160 (Local Government Code of 1991), enacted October 10, 1991, provides in Section 90(a) that governors and mayors are prohibited from practicing their professions during incumbency. Section 90(b) permits sanggunian members to practice professions or engage in other occupations outside session hours, but bars lawyer-members from appearing as counsel in civil or criminal cases adverse to government entities or officials, collecting related fees, or using government property and personnel for private practice.
Supreme Court Deliberation on Separation of Powers
The Supreme Court applied the 1987 Constitution and recognized the DILG’s expertise in administering local government regulations. It found no grave abuse of discretion in issuing or enforcing MC Nos. 80-38 and 90-81, nor in denying the motion to dismiss, since these issuances addressed public officials’ ethical conduct without encroaching on the judiciary’s rule-making autho
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Facts of the Case
- Attorney Erwin B. Javellana was an elected City Councilor of Bago City, Negros Occidental, and a licensed lawyer by profession.
- On October 5, 1989, City Engineer Ernesto C. Divinagracia filed Administrative Case No. C-10-90 against Javellana, alleging:
• Violation of DLG Memorandum Circular No. 80-38 (in relation to MC No. 74-58) and Section 7(b)(2) of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) by continuously practicing law without prior authority from the Regional Director of DLG.
• Oppression, misconduct, and abuse of authority in his official capacity. - Specific acts complained of included Javellana’s appearance as counsel for Antonio Javiero and Rolando Catapang in an “Illegal Dismissal and Reinstatement with Damages” case against Divinagracia and his appearance in several other civil and criminal cases in Bago City without prior authorization.
Applicable Administrative Rules
- DLG Memorandum Circular No. 74-58: Requires prior authority from DLG Regional Director before public officials engage in private practice, and prohibits use of government personnel or resources in such practice.
- DLG Memorandum Circular No. 80-38 (June 10, 1980): Amends MC 80-18; permits local legislative members to practice their professions upon securing regional authorization, subject to session attendance and non-use of government resources.
- DLG Memorandum Circular No. 90-81 (September 21, 1991):
• Based on Section 7 of RA 6713 and MC 17 (Office of the President, 1986); grants Secretary of Local Government authority to permit practice of professions and private employment by local elective officials.
• Prohibits governors and mayors from private practice; allows other elective officials limited practice under conditions (fixed hours, no government resources, no conflict of interest, and additional conditions as needed). - Republic Act No. 7160 (Local Government Code of 1991), Section 90:
• Prohibits governors, city and municipal mayors from private practice.
• Allows sanggunian members to practice professions or