By Jeffrey G. Damicog
Solicitor General (SolGen) Jose Calida assures there is nothing wrong with the P10.7-million honoraria his office received for services rendered to clients.
The Commission on Audit (COA) on its 2017 report flagged the payments for being excessive and ordered the Office of the Solicitor General to return the amount to the government.
“The OSG has consistently acted within the confines set by law,” Calida said in a statement.
The P10.7 million, Calida said,were received by the OSG for services rendered to their client government agencies in accordance with law citing Section 1(i) of Presidential Decree No. 478 (Defining the Powers and Functions of the Office of the Solicitor General) and Section 35(9), Chapter 12, Title III, Book IV of Executive Order No. 292 (Administrative Code).
“These provisions authorize the OSG lawyers to receive allowances and honoraria for the legal services they render without qualification as to the number of agreements with client agencies and without limitation/cap as to the amount,” Calida explained.
“The authority of these agencies to pay OSG lawyers honoraria and allowances for services rendered is restated in Section 8 of RA No. 9417 (An Act to Strengthen the Office of the Solicitor General),” he added.
Calida noted that COA conducted its finding relying on COA Circular No. 85-25-E which “limits the honoraria and allowances to 50 percent of an OSG lawyer’s salary.”
“However, this limitation is not found in the laws authorizing the payment of said honoraria and allowances,” he said.
“Definitely, COA Circular No. 85-25-E cannot prevail over the provisions of law,” he stressed.
He noted that the COA circular was issued on April 25, 1985, while RA No. 9417 was passed on March 30, 2007.
“COA certainly cannot render these contracts ineffective by a mere administrative circular,” Calida pointed out.
“To allow COA Circular No. 85-25-E to prevail would violate the constitutional prohibition against impairment of contracts,” he stated.
Allowed by law
Calida has found an ally in former Solicitor General Florin Hilbay.
“The OSG, unlike most other government agencies, is specifically allowed by law to receive allowances (not from its own funds, but from those of other agencies),” Hilbay posted on his Twitter account on Saturday.
He cited the same laws Calida mentioned that justified the payments.
“There is a practical reason for these allowances: allow the institution to retain good lawyers,” Hilbay added.
“Litigation takes time and expertise needs to be developed. If OSG lawyers are so easily pirated by law firms and corporations, it will prevent the gov’t from developing a good career bureaucracy that can litigate for the republic over long periods,” he explained.
“Thus ‘[t]he Solicitor General and his staff are specifically authorized to receive allowances as may be provided by Government offices, instrumentalities and corporations concerned, in addition to their regular compensation’,” he stressed.
Power of Congress
Hilbay noted that COA resident auditors conducted the audit of the OSG using a 1985 COA Circular which limits allowances in government to 50 percent of an employee’s salary.
“The position of the OSG has always been that the COA Circular, an administrative issuance, cannot override an act of Congress. The Congress controls the power of the purse and therefore has clear constitutional authority to provide exceptions to general rules,” he stressed.
“Law trumps administrative circulars. This is basic. While COA’s circular may have the power to limit allowances of government employees in general, such power must yield to the power of Congress,” he added.
Hilbay also indicated that the COA findings were made by COA resident auditors and “not the COA en banc or Commission Proper, where the matter is under review.”