MANUEL MONTILLA, AS PROVINCIAL FISCAL OF ILOCOS SUR, AND FAUSTINO S. TOBIA, PETITIONERS, VS. HON. ZOILO HILAMO, AS DISTRICT JUDGE OF THE COURT OF FIRST INSTANCE OF ILOCOS SUR, A…

Section 17, Article VI, of the Constitution
bars Senators and Members of the House of Representatives from, among
other inhibitions, appearing as counsel before any court “in any
criminal case wherein an officer or employee of the government is
accused of an offense committed in relation to his office.”

This case comes before us on a writ of certiorari to the Court of.
First Instance of Ilocos Sur, and involves the consideration of the
scope of the aforequoted constitutional provision. The provincial
fiscal and the private counsel for the complainants seek to have set
aside an order of Judge Zoilo Hilario of that court overruling their
objection to Congressman Floro Crisologo’s intervention as defense
counsel in Criminal Case No. 129 “for murder with (and) frustrated
murder” against the municipal mayor and three members of the police
force of Santa Catalina, Ilocos Sur.

The information charges that the defendants, “taking advantage of
their respective public positions, conspiring together * * *, did then
and there * * * assault, attack and shoot with their firearms” several
persons “with the intent to kill” and did kill one Claudio Ragasa and
inflict physical injuries on three others.

From the allegations of the information it does not ‘appear that the
official positions of the accused were connected with the offenses
charged. In fact, the attorneys for the prosecution stated that the
motives for the crimes were “personal with political character.” It
does not even appear, nor is there assertion, that the crimes were
committed by the defendants in line of duty or in the performance of
their official functions.

Judged by the context of section 17 of Article VI, supra,
and the proceedings of the Constitutional Convention, the relation
between the crime and the office contemplated by the Constitution is,
in our opinion, direct and not accidental. To fall into the intent of
the Constitution, the relation has to be such that, in the legal sense,
the offense can not exist without the office. In other words, the
office must be a constituent element of the crime as denned in the
statute, such as, for instance, the crimes defined and punished in
Chapter Two to Six, Title Seven, of the Revised Penal Code.

Public office is not of the essense of murder. The taking of human
life is either murder or homicide whether done by a private citizen or
public servant, and the penalty is the same except when the
perpetrator, being a public functionary, took advantage of his office,
as alleged in this case, in which event the penalty is increased.

But the use or abu.se of office does not adhere to the crime as an
element; and even as an aggravating circumstance, its materiality
arises, not from the allegations but on the proof, not from the fact
that the criminals are public officials but from the manner of the
commission of the crime.

Incidentally, this might serve as a warning against disqualifying a
lawyer-legislator on the basis of what is alleged and not on the
nature, of the offense itself. Were the petitioners’ proposition,
sustained, the result would be that in every case in which the accused
is a public officer or employee, the prosecution could at will keep a
member of Congress from entering an appearance as attorney for the
defense. The prosecutor could do this by the simple expedient of making
the necessary averments, even though, as a matter of fact, there was no
evidence that the office held by the defendant had anything to do with
the offense.

By the same token, the fact that, as alleged, the defendants made
use of firearms which they were authorized to carry or possess by
reason of their positions, could not supply the required connection
between the office and the cr.lme. Firearms however and wherever
obtained are not an ingredient of murder or homicide. The crime in
question, for example, could have been committed by the defendants in
the same or like manner and with the same ease if they had been private
individuals and fired with unlicensed weapons. Murders or homicides by
private persons with guns, licensed or unlicensed are the general rule
and by public officers the exception.

Tested by its consequences, the petitioners contention on this point
is, like the contention discussed in the preceding paragraphs,
untenable. Little reflection will show that by this contention the
right of legislators to appear as counsel would depend on whether the
weapons used were the offenders’ property or part of their official
equipment; and since this matter is extraneous to the definition of the
crime of murder, the attorneys’ qualification or disqualification would
lie at the mercy of the prosecuting officer. Surely, it could not have
been the intention of the framers of the Constitution to make the
operation of the provision in question hang on a factual consideration
so : slender and uncertain; on a contingency that could only be
determined after the trial was over, when the attorneys’ services were
no longer needed.

The petition is denied without costs:

Paras, C. J., Feria, Pablo, Bengzon, Padilla, Reyes, Jugo, and Bautista Angelo, JJ., concur.