DOJ hands off on conflict between PAO, DBM
The Department of Justice (DOJ) has refused to issue a legal opinion on the issue of whether retired lawyers of the Public Attorney’s Office (PAO) are entitled to retirement benefits similar to prosecutors.
In a letter dated June 16 addressed to Budget Secretary Florencio Abad, acting Justice Secretary Emmanuel Caparas said he cannot give a legal opinion on the matter that is already subject of litigation before the Quezon City Regional Trial Court.
Caparas was referring to the petition for mandamus filed by the PAO retirees before the Quezon City RTC to compel the Department of Budget and Management (DBM) to release their retirement benefits worth P139 million and to strike down the legal opinion rendered by the DBM Legal Service stating that their benefits are not similar to that of the members of the National Prosecution Service (NPS).
READ: PAO retirees: DBM, Abad illegally blocking P139-M retirement pay
“The Secretary of Justice has consistently refrained from rendering opinion or giving legal advice on matters that are pending before the court for to do so would not only be improper but also impractical since the ruling of this Department has no binding effect upon the court,” Caparas said.
“In addition, any opinion rendered by this Office at this time may be construed as an unwarranted intrusion into the exercise of judicial powers and functions pertaining to a separate and co-equal branch of government which could subject this Department to criticism for violation of the independence of the judiciary,” he added.
Article continues after this advertisementLikewise, Caparas explained that since the issue raised involved substantive rights (rights of the PAO retirees), his opinion would be merely advisory in nature and would not be binding upon the private parties who may be adversely affected and may even contest the opinion before the courts.
Article continues after this advertisement“As a matter of policy, therefore, the Secretary of Justice has consistently refrained from rendering opinion on questions that are justiciable in nature or can be the subject of litigation before the court,” he added.
Furthermore, the DOJ chief said the issues raised by the parties prescind from a divergence in the interpretation of Section 5 of Republic Act 9406 or the PAO Law in relation to Section 16 of RA 10071 or the National Prosecution Service Law which was enacted in 2010 or three years after RA 9406 was passed.
Section 5 of RA 9406 provides that the rank, salary grades, salaries, allowances and other emoluments of the public attorneys shall be the same as those of their counterparts in the National Prosecution Service; the prohibition in Section 16 of RA 10071 expressly provides otherwise.
The DBM has seized on this divergence saying that PAO lawyers are not entitled to the same retirement package as that of prosecutors and judges as it added that under Section 16 of RA 10071, “the salaries, allowances and other emoluments herein fixed shall not apply to officers other than those of prosecutors in the National Prosecution Service, notwithstanding any provision of law assimilating the salaries of other officers to those herein mentioned.”
“In other words, what Section 5 of RA 9406 allows, Section 16 of RA 10071 disallows. In this sense, and in view of the clear statutory conflict, the arguments of the PAO and of the DBM Legal Service both have basis. Consequently, the resolution of this conflict rests upon a proper interpretation of the prohibition in Section 16, RA 10071 and its effects on Section 5 of RA 9406, which is a matter already with the court,” Caparas stressed.
Earlier, the PAO retirees questioned the position of the DBM when in a 2012 letter to DOJ Secretary Leila de Lima, Abad himself recognized that they are entitled to the same retirement pay of public prosecutors
PAO Chief Persida Rueda-Acosta said there is a pressing need for the retired public attorneys to receive their retirement benefits considering that of the 40 who earlier signed a manifesto calling on the DBM to release their benefits, eight are already bed-ridden while two have died recently. JE
