ERWIN B. JAVELLANA, PETITIONER, VS. DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT AND LUIS T. SANTOS, SECRETARY, RESPONDENTS.

This petition for review on certiorari involves the right
of a public official to engage in the practice of his profession while employed
in the Government.

Attorney Erwin B. Javellana was an elected City Councilor of Bago
City, Negros Occidental. On October 5,
1989, City Engineer Ernesto C. Divinagracia filed Administrative Case No.
C-10-90 against Javellana for: (1)
violation of Department of Local Government (DLG) Memorandum Circular No. 80-38
dated June 10, 1980 in relation to DLG Memorandum Circular No. 74-58 and of
Section 7, paragraph b, No. 2 of Republic Act No. 6713, otherwise known as the
“Code of Conduct and Ethical Standards for Public Officials and
Employees,” and (2) for oppression, misconduct and abuse of authority.

Divinagracia’s complaint alleged that Javellana, an incumbent member
of the City Council or Sanggunian Panglungsod of Bago City, and a lawyer by
profession, has continuously engaged in the practice of law without securing
authority for that purpose from the Regional Director. Department of Local Government, as required
by DLG Memorandum Circular No. 80-38 in relation to DLG Memorandum Circular No.
74-58 of the same department: that on
July 8, 1989. Javellana, as counsel for
Antonio Javiero and Rolando Catapang, filed a case against City Engineer
Ernesto C. Divinagracia of Bago City for “Illegal Dismissal and
Reinstatement with Damages” putting him in public ridicule: that Javellana also appeared as counsel in
several criminal and civil cases in the city, without prior authority of the
DLG Regional Director, in violation of DLG Memorandum Circular No. 80-38 which
provides:

“MEMORANDUM CIRCULAR
NO. 80-38

“TO ALL:     PROVINCIAL GOVERNORS, CITY AND MUNICIPAL
MAYORS, KLGCD REGIONAL DIRECTORS AND ALL CONCERNED

“SUBJECT: AMENDING MEMORANDUM CIRCULAR NO. 80-18 ON
SANGGUNIAN SESSIONS, PER DIEMS, ALLOWANCES, STAFFING AND OTHER RELATED MATTERS

“In view of the issuance of Circular No. 5-A by the Joint
Commission on Local Government Personnel Administration which affects certain
provisions of MC 80­-18, there is a need to amend said, Memorandum Circular to
substantially conform to the pertinent provisions of Circular No. 9-A.

“xxx                                xxx                               xxx

“C. Practice of Profession

“The Secretary (now Minister) of Justice in an Opinion No. 46
Series of 1973 stated inter alia that ‘members of local
legislative bodies, other than the provincial governors or the
mayors, do not keep regular office hours.’ ‘They merely attend meetings or
sessions of the provincial board or the city or municipal council’ and that
provincial board members are not even required ‘to have an office in the
provincial building.’ Consequently, they are not therefore required to report
daily as other regular government employees do, except when they are delegated
to perform certain administrative functions in the interest of public service
by the Governor or Mayor as the case may be. For this reason, they may therefore, be allowed to practice
their professions provided that in so
doing an authority x x x first
be secured from the Regional Directors
pursuant to Memorandum Circular No. 74-58
provided, however, that no government personnel, property, equipment or
supplies shall be utilized in the practice of their professions. While being authorized to practice their
professions, they should as much as possible attend regularly any and all
sessions, which are not very often of their Sanggunians for which they were
elected as members by their constituents except in very extreme cases, e.g.,
doctors who are called upon to save a life. For this purpose it is desired
that they always keep a calendar of
the dates of the sessions, regular or
special of their Sanggunians so that conflicts
of attending court cases in the case
of lawyers and Sanggunian sessions can
be avoided.

“As to members of the bar the authority given for them to
practice their profession shall always be subject to the restrictions provided
for in Section 6 of Republic Act 5185. In all cases, the practice of any profession
should be favorably recommended by the
Sanggunian concerned as a body and by
the provincial governors, city or municipal
mayors, as the case may be.”
(Underscoring ours, pp. 28-30, Rollo.)

On August 13, 1990, a formal hearing of the complaint was held in
Iloilo City in which the complainant, Engineer Divinagracia, and the
respondent, Councilor Javellana, presented their respective evidence.

Meanwhile, on September 10, 1990, Javellana requested the DLG for
a permit to continue his practice of law for the reasons stated in his
letter-request. On the same date,
Secretary Santos replied as follows:

“1st Indorsement

September 10, 1990

“Respectfully returned to Councilor Erwin B. Javellana, Bago
City, his within letter dated September 10, 1990, requesting for a permit to
continue his practice of law for reasons therein stated, with the information
that, as represented and consistent with law, we interpose no objection
thereto, provided that such practice will not conflict or tend to conflict with
his official functions.

“LUIS T.
SANTOS

“Secretary.”

(p. 60. Rollo.)

On September 21, 1991, Secretary Luis T. Santos issued Memorandum
Circular No. 90-81 setting forth guidelines for the practice of professions by
local?elective officials as follows:

“TO :   All
Provincial Governors, City and Municipal Mayors, Regional Directors and All
Concerned.

“SUBJECT :   Practice of Profession and
Private Employment of Local Elective Officials.

“Section 7 of Republic Act No. 6713 (Code of Conduct and
Ethical Standards for Public Officials and Employees), states in part, that ‘In
addition to acts and omissions of public officials x x x now prescribed in the
Constitution and existing laws, the following shall constitute prohibited acts
and transactions of any public official x x x and are hereby declared to be
unlawful: x x x (b) Public Officials
x x x during their incumbency shall not: (1) x x x accept employment as officer,
employee, consultant, counsel, broker, agent, trustee or nominee in any private
enterprise regulated, supervised or licensed by their office unless expressly
allowed by law; (2) Engage in the private practice of their profession unless
authorized by the Constitution or law provided that such practice will not
conflict or tend to conflict with their official functions: x x x.’

“xxx                               xxx                               xxx

“Under Memorandum Circular No. 17 of the Office of the
President dated September 4, 1986, the authority to grant
any permission to accept private employment in
any capacity and to exercise profession,
to any government official shall be granted
by the head of the Ministry (Department)
or agency in accordance with Section 12.
Rule XVIII of the Revised Civil Service
Rules, which provides, in part, that:

“‘No officer shall engage directly in any x x x vocation or
profession x x x without a written permission from the head of the Department: Provided, that this prohibition will be absolute in the case of those
officers x x x whose duties and responsibilities require that their entire time
be at the disposal of the Government:
Provided, further, That if an employee is granted permission to engage in outside activities, the time so
devoted outside of office should be fixed by the Chief of the agency to the end
that it will not impair in anyway the efficiency of the officer or employee x x
x subject to any additional conditions which the head of the office deems
necessary in each particular case in the interest of the service, as expressed
in the various issuances of the Civil Service Commission.’

“Conformably with the foregoing, the
following guidelines are to be observed
in the grant of permission to the
practice of profession and to the acceptance
of private employment of local elective
officials, to wit:

“1.)  The permission
shall be granted by the Secretary of
Local Government:

“2.)  Provincial
Governors, City and Municipal Mayors whose duties and responsibilities require
that their entire time be at the disposal of the government in conformity with
Sections 141, 171 and 203 of the Local Government Code (BP337), are prohibited
to engage in the practice of their profession and to accept private employment
during their incumbency:

“3)   Other local
elective officials may be allowed to practice
their profession or engage in private
employment on a limited basis at the discretion
of the Secretary of Local Government,
subject to existing laws and to the
following conditions:

“a) That the time so
devoted outside of office hours should be fixed by the local chief executive
concerned to the end that it will not impair in any way the efficiency of the
officials concerned;

“b)   That no government
time, personnel, funds or supplies shall be utilized in the pursuit of one’s
profession or private employment;

“c)   That no
conflict of interests between the practice
of profession or engagement in private
employment and the official duties of the
concerned official shall arise thereby:

“d) Such other
conditions that the Secretary deems necessary to impose on each particular
case, in the interest of public service.” (Emphasis supplied. pp. 31-32.
Rollo.)

On March 25, 1991, Javellana filed a Motion to Dismiss the
administrative case against him on the ground mainly that DLG Memorandum
Circulars Nos. 80-38 and 90-81 are unconstitutional because the Supreme Court
has the sole and exclusive authority to regulate the practice of law.

In an Order dated May 2, 1991, Javellana’s motion to dismiss was
denied by the public respondents. His
motion for reconsideration was likewise denied on June 20, 1991.

Five months later or on October 10, 1991, the Local Government Code
of 1991 (RA 7160) was signed into law, Section 90 of which provides:

“SEC. 90. Practice
of Profession. – (a) All governors, city and municipal mayors are
prohibited from practicing, their profession or engaging in any occupation
other than the exercise of their functions as local chief executives.

“(b)         Sanggunian
members may practice their professions, engage
in any occupation, or teach in schools
except during session hours: Provided, That sanggunian members who
are also members of the Bar shall
not:

“(1) Appear as counsel before any
court in any civil case wherein a
local government unit or any office, agency,
or instrumentality of the government is the
adverse party;

“(2)  Appear as counsel
in any criminal case wherein an officer or employee of the national or local
government is accused of an offense committed in relation to his office:

“(3)  Collect any fee for
their appearance in administrative proceedings involving the local
government unit of which he is an
official; and

“(4)  Use property and
personnel of the Government except when the sanggunian member concerned is
defending the interest of the Government.

“(c)         Doctors of
medicine may practice their profession even during official hours of work only
on occasions of emergency: Provided,
That the officials concerned do not derive monetary compensation
therefrom.” (Underscoring ours.)

Administrative Case No. C-10-90 was again set for hearing on
November 26, 1991. Javellana thereupon
filed this petition for certiorari praying that DLG Memorandum Circulars
Nos. 80-38 and 90-81 and Section 90 of the new Local Government Code (RA 7160)
be declared unconstitutional and null and void because:

(1) they violate Article
VIII. Section 5 of the 1987
Constitution, which provides:

“SEC. 5. The Supreme
Court shall have the following powers:

“xxx                                xxx                               xxx

“(5) Promulgate
rules concerning the protection and enforcement of Constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice
of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.”

(2) They constitute class legislation, being discriminatory
against the legal and medical professions for only sanggunian members who are
lawyers and doctors are restricted in the exercise of their profession while
dentists, engineers, architects, teachers, opticians, morticians and others are
not so restricted (RA 7160. Sec. 90 [b-1]).

In due time, the Solicitor General filed his Comment on the
petition and the petitioner submitted a Reply. After deliberating on the pleadings of the parties, the Court resolved
to dismiss the petition for lack of merit.

As a matter of policy, this Court accords great respect to the
decisions and/or actions of administrative authorities not only because of the
doctrine of separation of powers but also for their presumed knowledgeability
and expertise in the enforcement of laws and regulations entrusted to their
jurisdiction (Santiago vs. Deputy Executive Secretary, 192 SCRA 199, citing
Cuerdo vs. COA, 166 SCRA 657). With
respect to the present case, we find no grave abuse of discretion on the part
of the respondent. Department of
Interior and Local Government (DILG), in issuing the questioned DLG Circulars
Nos. 80-30 and 90-81 and in denying petitioner’s motion to dismiss the
administrative charge against him.

In the first place, complaints against public officers and
employees relating or incidental to the performance of their duties are
necessarily impressed with public interest for by express constitutional
mandate, a public office is a public trust. The complaint for illegal dismissal filed by Javiero and Catapang
against City Engineer Divinagracia is in effect a complaint against the City
Government of Bago City, their real employer of which petitioner Javellana is a
councilman. Hence, judgment against
City Engineer Divinagracia would actually be a judgment against the City Government. By serving as counsel for the complaining
employees and assisting them to prosecute their claims against City Engineer
Divinagracia, the petitioner violated Memorandum Circular No. 74-58 (in
relation to Section 7[b-2] of RA 6713) prohibiting a government official from
engaging in the private practice of his profession, if such practice would
represent interests adverse to the government.

Petitioner’s contention that Section 90 of the Local Government
Code of 1991 and DLG Memorandum Circular No. 90-81 violate Article VIII. Section 5 of the Constitution is completely
off tangent. Neither the statute nor
the circular trenches upon the Supreme Court’s power and authority to prescribe
rules on the practice of law. The Local
Government Code and DLG Memorandum Circular No. 90-81 simply prescribe rules of
conduct for public officials to avoid conflicts of interest between the
discharge of their public duties and the private practice of their profession,
in those instances where the law allows it.

Section 90 of the Local Government Code does not discriminate
against lawyers and doctors. It applies
to all provincial and municipal officials in the professions or engaged in any
occupation. Section 90 explicitly
provides that sanggunian members “may practice their professions, engage
in any occupation, or teach in schools except during session hours.” If
there are some prohibitions that apply particularly to lawyers, it is because
of all the professions, the practice of law is more likely than others to
relate to, or affect, the area of public service.

WHEREFORE, the petition is DENIED for lack of merit. Costs against the petitioner.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin,
Medialdea, Regalado, Davide, Jr., Romero, Nocon, and
Bellosillo, JJ., concur.