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VOL. 212, AUGUST 10, 1992 475

Javellana vs. Department of Interior and Local
Government

G.R. No. 102549. August 10,* 1992.<a

href="#p212scra8960475001"> a
>

ERWIN B. JAVELLANA, petitioner vs. DEPARTMENT

OF INTERIOR AND LOCAL GOVERNMENT AND LUIS
T. SANTOS, SECRETARY, respondents.

Administrative Law; Court accords great respect to the

decisions and/or actions of administrative authorities.—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.
Same; Local Government Code; Petitioner violated
Memorandum Circular No. 74-58 prohibiting a government
official from engaging in the private practice of his profession if
such practice would represent interests adverse to the government.
—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.

PETITION for review on certiorari from the decision

of the Department of Interior and Local Government.

The facts are stated in the opinion of the Court.

     Reyes, Lozada and Sabado for petitioner.

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GRIÑO-AQUINO, J.:

This petition for review on certiorari involves the

right of a

_______________

* EN BANC.

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Javellana vs. Department of Interior and Local
Government

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
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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 Memo-

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VOL. 212, AUGUST 10, 1992 477

Javellana vs. Department of Interior and Local Government

randum Circular to substantially conform to the pertinent

provisions of Circular No. 9-A.
“x x x     x x x     x x x
“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
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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.” (Italics 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:

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478 SUPREME COURT REPORTS ANNOTATED

Javellana vs. Department of Interior and Local
Government

“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
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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.’
“x x x     x x x     x x x
“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

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VOL. 212, AUGUST 10, 1992 479

Javellana vs. Department of Interior and Local Government

(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
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Sections 141, 171 and 203 of the Local Government

Code (BP 337), 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 inter-

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Javellana vs. Department of Interior and Local Government

est 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

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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.” (Italics ours.)

Administrative Case No. C-10-90 was again set for hearing

on November 26, 1991. Javellana thereupon filed this
petition

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Javellana vs. Department of Interior and Local
Government

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,

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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.

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Javellana vs. Department of Interior and Local
Government

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
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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,

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VOL. 212, AUGUST 10, 1992 483

Ogburn vs. Court of Appeals

          Bidin, Medialdea, Regalado, Davide, Jr., Romero,

Nocon and Bellosillo, JJ., concur.

Petition denied.

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