Ting Dumali v Torres
Payment was already made to, and received
In a Complaint-Affidavit[1] filed on 22 October 1999 with this Court,
complainant Isidra Ting-Dumali charges respondent Atty. Rolando S. Torres with
presentation of false testimony; participation in, consent to, and failure to advise
against, the forgery of complainants signature in a purported Deed of Extrajudicial
Settlement; and gross misrepresentation in court for the purpose of profiting from
such forgery, thereby violating his oath as a lawyer and the canons of legal and
judicial ethics.
The complainant is one of the six children of the late spouses Julita Reynante
and Vicente Ting. Her siblings are Marcelina T. Rivera; Miriam T. Saria; Felicisima
T. Torres, who is married to herein respondent; Vicente Ting, Jr.; and Eliseo
Ting. Their parents died intestate and left several parcels of land, to wit:
a) One half of Lot 1586 of the San Francisco de Malabon Estate,
containing an area of 43,908 square meters more or less, and
covered at that time by TCT No. (T-6203) RT-19151 of the
Registry of Deeds of Cavite;
b) Lot 1603 of the San Francisco de Malabon Estate, containing an area
of 16,073 square meters, more or less, and covered at that time
by TCT No. (T-6425) RT-7688 of the Registry of Deeds of
Cavite;
c) Lot 1605 of the San Francisco de Malabon Estate, containing an area
of 22,131 square meters, more or less and covered at that time
by TCT No. T- 1869 of the Registry of Deeds of Cavite.
According to the complainant, the respondent took advantage of his
relationship with her and her brothers and used his profession to deprive them of
what was lawfully due them even if it involved the commission of an illegal,
unlawful, or immoral act. She attributes to the respondent the following acts or
omissions:
1. The respondent participated in, consented to, and failed to advise against, the
perjury committed by his wife Felicisima and his sister-in-law Miriam when they
executed a Deed of Extrajudicial Settlement of Estate dated 11 November 1986,
wherein the two made it appear that they were the sole heirs of the late spouses
Julita Reynante and Vicente Ting, knowing fully well that the same was false. He
presented that document to the Register of Deeds of Cavite for the transfer of the
title over Lot No. 1586 in the names of his wife and Miriam. The lot was later sold
to Antel Holdings Inc. for P1,195,400.
by, Felicisima and Miriam.
2. The respondent participated in, consented to, and failed to advise against, the
forgery of complainants signature in a purported Deed of Extrajudicial Settlement
dated 17 March 1995 involving Lot 1603 when he knew that she was in Italy at that
time working as an overseas contract worker. He even presented the falsified
document to the Register of Deeds of Cavite to transfer the title over the property in
favor of his wife Felicisima and sister-in-law Marcelina. The forgery or falsification
was made to enable them to sell Lot 1603 to Antel Holdings, Inc. Payment was
received and misappropriated by Felicisima and Marcelina.
3. In LRC Rec. No. 5964 entitled In Re:Petition for Judicial Reconstitution of the
Original Copy and Owners Duplicate Copy of TCT No. T-1869 Covering Lot No.
1605 of the Registry of Deeds for the Province of Cavite, filed by complainants
sisters Marcelina and Felicisima on 24 October 1995, the respondent made gross
misrepresentation and offered false testimony to the effect that Marcelina and
Felicisima are the only children and legal heirs of the late spouses Vicente Ting and
Julita Reynante for the purpose of obtaining a new title in their names. With the
reconstituted title, and with the express conformity of the respondent, Felicisima and
Marcelina were able to sell Lot 1605 to Antel Holdings, Inc., for P2,213,100
and profited from the sale to the exclusion of their other siblings. Partial payment
was even received pending the reconstitution proceedings.
4. On 20 November 1996, the respondent made gross and false misrepresentations
for the purpose of profiting therefrom when he requested the buyer through a certain
Mrs. Ong to release the full payment for Lot 1605 under the pretense that the order
of reconstitution would be released within a month when he knew that it would be
impossible because he presented evidence in the reconstitution case only on 12
August 1997. To facilitate the release of the money, he even used the stationery of
the Philippine National Bank, of which he was an employee.
In his Comment,[2] the respondent denies the allegations of the complaint and
asserts that he did not take advantage of his profession to deprive any of the co-heirs
of his wife of the estate left by his parents-in-law.
Insofar as Lot 1586 is concerned, the respondent affirms that Felicisima and
Miriam were not motivated by any desire to solely profit from the sale. Neither can
he be faulted by the execution of the Deed of Extrajudicial Settlement dated 17
March 1995 involving Lot 1603 because he had no part in the execution of the
document. All the while he believed in good faith that the Ting sisters had already
agreed on how to dispose of the said lot. If ever complainants signature was affixed
on that document, it was done in good faith.
 The respondent admits that he was the counsel of Marcelina Ting Rivera, et.
al., in LRC Case No. 5964 for the reconstitution of TCT No. T-1869. The false
testimony of Marcelina in that case that she and Felicisima were the only children of
spouses Vicente Ting and Julita Reynante could not be faulted on him because such
was a clear oversight. Moreover, the sale of Lot 1605 to Antel Holdings, Inc., was
the decision of Marcelina and his wife. His conformity through his signature
was pro-forma because the property was a paraphernal property of Marcelina and
his wife. Anent his alleged gross and false misrepresentation that the order of
reconstitution would be released by the end of November 1996, suffice it to say that
the assurance was made by the Clerk of Court, Mr. Rosauro Morabe. Besides,
petitions for reconstitution are usually uncontested and granted by courts.
Finally, the respondent believes that complainant intended to harass him in
bombarding him with numerous lawsuits, i.e., this administrative case; Civil Case
No. TM-855 for Annulment of Documents, Titles, and Reconveyance plus
Damages; and a criminal case for Estafa and Falsification of Public Documents.
In her reply, the complainant denies the presence of toka or verbal will
allegedly made by her mother and allegedly implemented by their eldest brother
Eliseo in view of the following circumstances: (1) her mother met a sudden death in
1967; and partition of the properties in total disregard of their father was morally
reprehensible, since the latter was still alive; (2) when their mother died, four of the
siblings were still minors including respondents wife herself; (3) on 5 February
2000, Eliseo wrote his siblings, in response to the previous letter of Felicisima,
Marcelina, and Miriam, denying the existence of a toka. She further states that the
respondent was not merely a passive onlooker but, as he admitted, the administrator
of the properties of the Ting spouses.
On 14 June 2000, this Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report, and recommendation or decision.[3]
On 9 January 2003, after due hearing and consideration of the issues presented
by both parties, Investigating Commissioner Milagros V. San Juan of the
Commission on Bar Discipline of the IBP found the actuations of the respondent to
be violative of Rules 1.01 and 1.02 of Canon 1 and Rule 10.01 of Canon 10 of the
Code of Professional Responsibility. Thus she recommended that the respondent be
disbarred from the practice of law.[4]
In its Resolution No. XV-2003-333[5] of 21 June 2003, the Board of Governors
of the IBP approved and adopted Commissioner San Juans report, but reduced the
penalty to suspension from the practice of law for six years.
We fully agree with the Investigating Commissioner in her findings of facts
and conclusion of culpability. The respondent has sufficiently demonstrated that he
is morally and legally unfit to remain in the exclusive and honorable fraternity of the
legal profession. In his long years as a lawyer, he must have forgotten his sworn
pledge as a lawyer. It is time once again that the Court inculcate in the hearts of all
lawyers that pledge; thus:
LAWYER'S OATH
I, , do solemnly swear that I will maintain allegiance to the Republic of the
Philippines; I will support its Constitution and obey the laws as well as the legal
orders of the duly constituted authorities therein; I will do no falsehood, nor consent
to its commission; I will not wittingly or willingly promote or sue any groundless,
false or unlawful suit nor give aid nor consent to the same; I will delay no man for
money or malice, and will conduct myself as a lawyer according to the best of my
knowledge and discretion with all good fidelity as well to the courts as to my clients;
and I impose upon myself this voluntary obligation without any mental reservation
or purpose of evasion.
SO HELP ME GOD.
This oath to which all lawyers have subscribed in solemn agreement to
dedicate themselves to the pursuit of justice is not a mere ceremony or formality for
practicing law to be forgotten afterwards; nor is it mere words, drift and hollow, but
a sacred trust that lawyers must uphold and keep inviolable at all times. By swearing
the lawyers oath, they become guardians of truth and the rule of law, as well as
instruments in the fair and impartial dispensation of justice.[6] This oath is firmly
echoed and reflected in the Code of Professional Responsibility, which provides:
CANON 1 A lawyer shall uphold the constitution, obey the laws of the land and
promote respect for law and for legal processes.
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
Rule 1.02 A lawyer shall not counsel or abet activities aimed at defiance of the law
or at lessening confidence in the legal system.
...
CANON 7 A lawyer shall at all times uphold the integrity and dignity of the legal
profession, and support the activities of the Integrated Bar.
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness
to practice law, nor should he, whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession.
...
CANON 10 A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 A lawyer shall not do any falsehood, nor consent to the doing of any in
court; nor shall he mislead or allow the court to be misled by any artifice.
All of these underscore the role of a lawyer as the vanguard of our legal
system. When the respondent took the oath as a member of the legal profession, he
made a solemn promise to so stand by his pledge. In this covenant, respondent
miserably failed.
The records show that Felicisima and Miriam stated in the Extrajudicial
Settlement of Estate dated 11 November 1986 that they are the children of Julita
Reynante and thus adjudicated only between them Lot No. 1586 to the exclusion of
their other siblings.[7] There was concealment of the fact that there were other
compulsory heirs to the estate of the deceased. Significantly, the respondent is the
brother-in-law of complainant. Being married to complainants sister, he knew of his
wifes siblings. In fact, he declared that the complainant stayed with them while she
was in the Philippines.[8] Yet, the respondent presented that document to the Register
of Deeds of General Trias, Cavite, to effect the transfer of the title of the lot in
question in the name of his wife and his sister-in-law Miriam.
It also bears noting that the respondent was consulted[9] regarding the
falsification of complainants signature in the Extrajudicial Settlement[10] dated 17
March 1995 involving Lot 1603, which contains a purported waiver by the
complainant of her right over the property. Marcelina admitted that she signed
complainants name in that document.[11] Such act of counterfeiting the complainants
signature to make it appear that the complainant had participated in the execution of
that document is tantamount to falsification of a public document. [12]
Instead of advising Marcelina to secure a written special power of attorney and
against committing falsification, he presented[13] such document to the Registry of
Deeds to secure a new title for the lot in favor of Marcelina and his wife.[14] He
himself, therefore, may also be held liable for knowingly using a falsified document
to the damage of the complainant and her other co-heirs.[15] Notably, he also
admitted in an affidavit dated 22 May 1995 that he prepared the legal documents for
the transfer of Lot 1603.[16]
Respondent did not advise his wife and his sisters-in-law from doing acts
which are contrary to law. He must have kept in mind the first and foremost duty of
a lawyer, which is to maintain allegiance to the Republic of the Philippines, uphold
the Constitution, and obey the laws of the land. The Code of Professional
Responsibility underscores the primacy of such duty by providing as its canon that a
lawyer shall uphold the Constitution, obey the laws of the land, and promote respect
for law and legal processes.[17] For a lawyer is the servant of the law and belongs to
a profession to which society has entrusted the administration of law and the
dispensation of justice.[18]As such, he should make himself more an exemplar for
others to emulate.[19] He should not, therefore, engage in unlawful, dishonest,
immoral, or deceitful conduct.[20] He makes himself unfit to remain in the profession
who commits any such unbecoming act or conduct.[21]
Respondents argument that the non-declaration by his wife and his sister- in-
law Marcelina of the other siblings in LRC Rec. No. 5964 for the reconstitution of
title involving Lot 1605 was a mere oversight does not deserve credence in view of
the following circumstances: First, the petition clearly names only Felicisima and
Marcelina as the petitioners when there were six siblings who were heirs of the
unpartitioned lot.[22] Second, during the hearing of said case when the respondent
asked Marcelina whether she has brothers and sisters other than Felicisima, the latter
said none. The transcript of that hearing reads:
ATTY. TORRES:
Q Madame Witness, are you the only child or daughter of the deceased
Sps. Vicente Ting, Jr. and Julita Reynante?
WITNESS:
A No, sir. We are two, Felicisima Torres and I.
Q Do you have other brothers and sisters?
A None, sir.[23]
The respondent allowed Marcelina to commit a crime by giving false
testimony[24] in court, and he never corrected the same despite full knowledge of the
true facts and circumstances of the case.[25] Moreover, in knowingly offering in
evidence such false testimony, he himself may be punished as guilty of false
testimony.[26]
Moreover, under Canon 10 of the Code of Professional Responsibility, a
lawyer owes candor, fairness, and good faith to the court. He shall not do any
falsehood, nor consent to the doing of any in court; nor shall he mislead or allow the
court to be misled by any artifice.[27] This Rule was clearly and openly violated by
the respondent when he permitted Marcelina to falsely testify that she had no
siblings aside from Felicisima and when he offered such testimony in the petition for
reconstitution of the title involving Lot 1605.
 The respondent must have forgotten that as an attorney he is an officer of the
court called upon to assist in the administration of justice. Like the court itself, he is
an instrument to advance its cause. For this reason, any act on his part that obstructs
and impedes the administration of justice constitutes misconduct and justifies
disciplinary action against him.[28]
It may not be amiss to mention that to further support the reconstitution, he
offered in evidence an Affidavit of Loss, which was executed by Marcelina and
notarized by him. During the hearing of this administrative case, Marcelina admitted
that her statement in that affidavit that the title was in her possession was false, as
she was never in possession of the title[29] and would not, therefore, know that the
same was lost.
Moreover, in a letter dated 20 November 1996 addressed to a certain Mrs.
Ong, the respondent requested the release of 50% of the remaining balance for the
sale of Lot 1605, relaying to Antel Holdings, Inc., through Mrs. Ong that he was
assured by the Clerk of Court that the order directing the reconstitution of title for
Lot 1605 would be released within the month.[30] Respondents information was
misleading because he presented evidence only on 12 August 1997, or almost a year
after he sent the letter.[31] Such act, therefore, shows lack of candor and honesty on
the part of the respondent.
Respondents acts or omissions reveal his moral flaws and doubtless bring
intolerable dishonor to the legal profession. They constitute gross misconduct for
which he may be disbarred or suspended pursuant to Section 27, Rule 138 of the
Rules of Court, which provides:
Sec. 27. Disbarment or suspension of attorneys by Supreme Court; grounds
therefor. -- A member of the bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by reason of his conviction
of a crime involving moral turpitude, or for any violation of the oath which he is
required to take before the admission to practice, or for a willful disobedience of any
lawful order of a superior court, or for corruptly or willfully appearing as an attorney
for a party to a case without authority to do so. The practice of soliciting cases at law
for the purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice.
In the determination of the imposable disciplinary sanction against an erring
lawyer, we take into account the primary purpose of disciplinary proceedings, which
is to protect the administration of justice by requiring that those who exercise this
important function shall be competent, honorable, and reliable men in whom courts
and clients may repose confidence.[32] While the assessment of what sanction may be
imposed is primarily addressed to our sound discretion, the sanction should neither
be arbitrary or despotic, nor motivated by personal animosity or prejudice. Rather, it
should ever be controlled by the imperative need to scrupulously guard the purity
and independence of the bar.[33]
Thus, the supreme penalty of disbarment is meted out only in clear cases of
misconduct that seriously affect the standing and character of the lawyer as an
officer of the court and member of the bar. We will not hesitate to remove an erring
attorney from the esteemed brotherhood of lawyers where the evidence calls for
it.[34] Verily, given the peculiar factual circumstances prevailing in this case, we find
that respondents gross misconduct calls for the severance of his privilege to practice
law for life, and we therefore adopt the penalty recommended by the Investigating
Commissioner.
IN VIEW OF ALL THE FOREGOING, we find respondent Atty. Rolando
S. Torres guilty of gross misconduct and violation of the lawyers oath, as well as
Canons 1 and 10 of the Code of Professional Responsibility, thereby rendering him
unworthy of continuing membership in the legal profession. He is thus
ordered DISBARRED from the practice of law, and his name is ordered stricken off
the Roll of Attorneys, effective immediately.
Let copies of this Resolution be furnished the Office of the Bar Confidant,
which shall forthwith record it in the personal files of the respondent; all the courts
of the Philippines; the Integrated Bar of the Philippines, which shall disseminate
copies thereof to all its Chapters; and all administrative and quasi-judicial agencies
of the Republic of the Philippines.
SO ORDERED.
Masinsin v Albano
Spouses Miguel and Thelma Masinsin, et al., instituted this petition for certiorari,
prohibition, relief from judgment, as well as declaratory relief, with prayer for
preliminary mandatory injunction, asking us to order the Metropolitan Trial Court
("MTC") of Manila, Branch X, to cease and desist from further proceeding with
Civil Case No. 107203-CV.
This case emerged from an ejectment suit (docketed Civil Case No. 107203-CV)
filed by private respondent Vicente Caeda ("Caeda"), then as plaintiffs, against
herein petitioners, as defendants, with the Metropolitan Trial Court of Manila
(Branch X). After trial, the MTC, on 01 July 1985, rendered judgment; thus:
 PREMISES CONSIDERED, judgment is hereby rendered
ordering the defendants and all persons claiming right under
them to vacate the premises and to remove their house/apartment
and surrender possession of the subject land to the plaintiff; to
pay to the plaintiff the sum of P100.00 a month from January
1987 as the reasonable compensation for the use and occupation
of the premises until the land is actually vacated, and the costs of
suit. 1
No appeal having been taken therefrom, the judgment became final and executory.
On 22 August 1985, petitioners filed a petition for certiorari before the Regional
Trial Court of Manila (Branch XXXII) seeking the annulment of the aforesaid
decision in the ejectment case and to set aside an order of its execution. The petition
was in due time dismissed. Again, no appeal was taken therefrom.
On 07 October 1985, a complaint for "Annulment of Judgment, Lease Contract and
Damages" was filed by petitioners before the Regional Trial Court of Manila
(Branch XLI) asking, in main, for the nullification of the judgment in the ejectment
case. The complaint was dismissed on the ground of res judicata. This time,
petitioners appealed the dismissal to the Court of Appeals. Meanwhile, a writ of
execution was issued by the MTC for the enforcement of its decision. The writ,
however, was held in abeyance when petitioners deposited with the Court of
Appeals the sum of P3,000.00 in cash plus an amount of P100.00 to be paid every
month beginning February 1987. On 11 March 1987, the Court of Appeals affirmed
the order of dismissal of the lower court. Petitioners' recourse to this Court was to be
of no avail. The petition was denied, and an entry of judgment was made on 14 July
1987.
Accordingly, the records were remanded to the MTC for execution. When
petitioners refused to remove their house on the premises in question, upon motion
of private respondent, an order of demolition was issued. Shortly thereafter, the
demolition began. Before the completion of the demolition, a restraining order was
issued by the Regional Trial Court of Manila (Branch XIX) following a petition
for certiorari, with preliminary injunction and restraining order, filed by petitioners.
On 23 February 1988, the trial court dismissed the petition.
Unfazed by the series of dismissals of their complaints and petitions, petitioners
assailed anew the MTC decision in a petition for certiorari, with preliminary
injunction, and for declaratory relief (docketed Civil Case No. 88-43944) before the
Regional Trial Court of Manila (Branch XXV), which, again, issued a restraining
order. 2
Private respondent then filed a motion for an alias writ of execution with the MTC.
An ex-parte motion of petitioners for the issuance of a second restraining order was
this time denied by the RTC (Branch XXV). 3 On 23 August 1990, 4the trial court,
ultimately, dismissed the petition with costs against petitioners.
In this petition, petitioners contend that the MTC of Manila (Branch X) has lost
jurisdiction to enforce its decision, dated 01 July 1985, in Civil Case No. 107203,
when the property in question was proclaimed an area for priority development by
the National Housing Authority on 01 December 1987 by authority of Presidential
Decree 2016.
The petition is totally without merit.
In resolving this issue, we only have to refer to our resolution of 01 February 1993
in G.R. No. 98446, entitled, "Spouses Thelma R. Masinsin, et al. vs. Court of
Appeals, et al.," to which this case is intimately related, where we ruled:
. . . The singular question common to both cases submitted for
resolution of this court is the implication of Presidential Decree
No. 1517, otherwise known as the "Urban Land Reform Law,"
and its amendments or ramifications embodied in Proclamation
No. 1893, as amended by Proclamation No. 1967 and
Presidential Decree No. 2016. All the above statutes are being
implemented by the Housing and Land Use Regulatory Board,
and the Housing and Urban Development Coordinating Council,
Office of the President.
There is a prejudicial issue the answer to which hangs the
resolution of this case. On May 20, 1992, this Court required the
National Housing Authority to submit a Comment on the status
of the program of acquisition by the Government of the land
area which includes the disputed property, as part of the Areas
for Priority Development (APD), under the aforementioned
decrees and proclamations.
In compliance with said order of this Court, Mr. Andres C.
Lingan, Manager of the Metro Manila Project Department of the
National Housing Authority, submitted the following report on
the status of Lot 6-A, Block 1012, located at No. 1890 Obesis
Street, Pandacan, Manila, known as the Carlos Estate, an APD
site. Pertinent portions of the report read:
 Please be informed that Lot 6-A, Block 1012
located at No. 1890 Obesis St., Pandacan,
Manila which is the subject matter of the
case and located within the Carlos Estate
declared as APD site pursuant to
Presidential Proclamation No. 1967, is not
for acquisition by NHA.
The Carlos Estate is located outside of the
NHA projects under the Zonal Improvement
Project (ZIP) and Community Mortgage
Program (CMP). The site, however, is under
the administration of the Presidential
Commission on Urban Poor (PCUP) for
acquisition and upgrading. (Emphasis
Supplied.)
The above information answers the uncertainty concerning the
status of the alleged negotiation for the acquisition by the
government of certain areas in Metro Manila. The NHA is
definitely NOT acquiring the said lot for its program.
It appearing that the purpose of this Petition for Review is to set
aside the decision of the respondent Court of Appeals which
affirmed the decision of the lower courts, in order to avoid
eviction from the disputed premises and to be allowed to acquire
the same allegedly under the Community Mortgage Program of
the National Housing Authority, we find the petition without
merit and deny the same. Consequently, the petition is
DISMISSED. 5
What immediately catches one's attention to this case is the evident predilection of
petitioners, through different counsel, to file pleadings, one after another, from
which not even this Court has been spared. The utter lack of merit of the complaints
and petitions simply evinces the deliberate intent of petitioners to prolong and delay
the inevitable execution of a decision that has long become final and executory.
Four times did the petitioners, with the assistance of counsel, try to nullify the same
MTC decision before different branches of the court, trifling with judicial processes.
Never, again, should this practice be countenanced. 6
The lawyer's oath to which we have all subscribed in solemn agreement in
dedicating ourselves to the pursuit of justice, is not a mere fictile of words, drift and
hollow, but a sacred trust that we must uphold and keep inviolable. Perhaps, it is
time we are here reminded of that pledge; thus -
LAWYER'S OATH
I, . . ., do solemnly swear that I will maintain allegiance to the
Republic of the Philippines; I will support and defend its
Constitution and obey the laws as well as the legal orders of the
duly constituted authorities therein; I will do no falsehood nor
consent to its commission; I will not wittingly or willingly
promote or sue any groundless, false or unlawful suit nor give
aid nor consent to the same; I will not delay any man's cause for
money or malice and will conduct myself as a lawyer according
to the best of my knowledge and discretion with all good fidelity
as well to the courts as to my clients and I impose upon myself
this obligation voluntary, without any mental reservation or
purpose of evasion.
SO HELP ME GOD. (Emphasis supplied.)
We have since emphasized in no uncertain terms that any act on the part of a lawyer,
an officer of the court, which visibly tends to obstruct, pervert, impede and degrade
the administration of justice is contumacious calling for both an exercise of
disciplinary action and warranting application of the contempt power. 7
WHEREFORE, the petition is DISMISSED. Petitioners' counsel of record is hereby
strongly CENSURED and WARNED that a similar infraction of the lawyer's oath in
the future will be dealt with most severely. Double costs against petitioners.
This resolution is immediately executory.
SO ORDERED.
Tamaray v Daquis
Pretending to be counsel for a party in a case and using a forged signature in a
pleading merit the penalty of disbarment.
Cheryl E. Vasco-Tamaray (Vasco-Tamaray) filed a ComplaintAffidavit before the
Integrated Bar of the Philippines on July 30, 2007, alleging that respondent Atty.
Deborah Z. Daquis (Atty. Daquis) filed, on her behalf, a Petition for Declaration of
Nullity of Marriage without her consent and forged her signature on the
Petition.1 She also alleged that Atty. Daquis signed the Petition for Declaration of
Nullity of Marriage as "counsel for petitioner," referring to Vasco-Tamaray.2
Vasco-Tamaray stated that Atty. Daquis was not her counsel but that of her husband,
Leomarte Regala Tamaray.3 To support her allegation, she attached the Affidavit4 of
Maritess Marquez-Guerrero. The Affidavit states:
1. Sometime in October 2006, I accompanied Cheryl Tamaray in going to
East Cafe at Rustan's Makati to meet with her husband Leomarte Tamaray;
2. We arrived at the said place at around 7:00 pm and Leomarte
introduced to us (Cheryl and I) Atty. Deborah Z. Daquis as his lawyer. He
further told us that Atty. Daquis' husband also worked in Japan and that's
how he got to know the latter and got her services;
3. Among other things, Leomarte told Cheryl that the reason for that
meeting and the presence of Atty. Daquis was because he had decided to
file a case to annul his marriage with Cheryl;
4. Cheryl was shocked and just cried. After awhile [sic], Leomarte's
brother arrived and shortly after, the group left;
5. The next instance that I saw Atty. Daquis was when we (Cheryl and I)
went to McDonald's-Greenbelt where Atty. Daquis tried to convince her
not to oppose Leomarte's decision to have their marriage
annulled[.]5(Emphasis supplied)
Vasco-Tamaray narrated that in December 2006, Atty. Daquis informed her "that a
Petition for Declaration of Nullity of Marriage was filed before the Regional Trial
Court of Muntinlupa City."6 In February 2007, Atty. Daquis asked her to appear
before the City Prosecutor's Office of Muntinlupa City.7
On March 5, 2007, Vasco-Tamaray appeared before the City Prosecutor's Office and
met Atty. Daquis. She asked Atty. Daquis to give her a copy of the Petition but Atty.
Daquis refused.8
Vasco-Tamaray stated that she obtained a copy of the Petition for Declaration of
Nullity of Marriage from Branch 207 of the Regional Trial Court of Muntinlupa
City. She was surprised to see that the Petition was allegedly signed and filed by
her.9
Vasco-Tamaray alleged that she did not file the Petition, that her signature was
forged by Atty. Daquis, and that her purported community tax certificate appearing
on the jurat was not hers because she never resided in Muntinlupa City.10 She
attached a Certification issued by the Sangguniang Barangay of Putatan, Muntinlupa
City stating that she was "never . . . a resident of #9 Daang Hari Street, Umali
Compound, Summitville Subdivision, Barangay Putatan."11 She also attached a
Certification issued by Barangay Talipapa stating that she has been a resident of
"#484-J Saguittarius St., Solville Subd., Barangay Talipapa, Novaliches, Quezon
City... from 2000 till present."12
Vasco-Tamaray also alleged that the Petition for Declaration of Nullity of Marriage
was Atty. Daquis' idea, consented to by Leomarte Tamaray. 13
She further alleged that she had never received any court process. The Petition states
that her postal address is "09 Daang Hari St., Umali Comp., Summitville Subd.,
Putatan, Muntinlupa City[,]"14 which is the address of her husband's family. The
return slips of the notices sent by the trial court were received by Encarnacion T.
Coletraba and Almencis Cumigad, relatives ofLeomarte Tamaray.15
Atty. Daquis filed an Answer countering that her client was Vasco-Tamaray,
complainant herself, and not complainant's husband. She alleged that Vasco-
Tamaray knew of the Petition as early as October 2006, not December 2006.16
With regard to the community tax certificate, Atty. Daquis explained that when she
notarized the Petition, the community tax certificate number was supplied by Vasco-
Tamaray.17 Atty. Daquis' allegation was supported by the Joint Affidavit of her staff,
Ma. Dolor E. Purawan (Purawan) and Ludy Lorena (Lorena).18
Purawan and Lorena detailed in their Joint Affidavit that they knew Vasco-Tamaray
to be a client of Atty. Daquis and that they never saw Atty. Daquis forge Vasco-
Tamaray's signature. Purawan stated that she typed the Petition for Declaration of
Nullity of Marriage and that the community tax certificate was provided by Vasco-
Tamaray.19
Atty. Daquis alleged that Vasco-Tamaray wanted her to call and demand money
from Leomarte Tamaray but she refused to do so.20
Atty. Daquis argued that Vasco-Tamaray had a copy of the Petition. When Vasco-
Tamaray requested another copy on March 5, 2007, Atty. Daquis was unable to
grant her client's request because she did not have a copy of the Petition with her at
that time.21
Atty. Daquis further alleged that Vasco-Tamaray conceived an illegitimate son with
a certain Reuel Pablo Aranda. The illegitimate son was named Charles Dino Vasco.
Reuel Pablo Aranda signed the Affidavit of Acknowledgment/ Admission of
Paternity portion of the birth certificate.22
The Commission on Bar Discipline required the parties to submit their position
papers,23 but based on the record, only Vasco-Tamaray complied.24
The Commission on Bar Discipline recommended the dismissal of the Complaint
because Vasco-Tamaray failed to prove her allegations. The Commission on Bar
Discipline noted that Vasco-Tamaray should have questioned the Petition or
informed the prosecutor that she never filed any petition, but she failed to do so. 25
The Board of Governors of the Integrated Bar of the Philippines adopted and
approved the Report and Recommendation of the Commission on Bar Discipline in
the Resolution dated September 27, 2014.26
The issue for resolution is whether respondent Atty. Deborah Z. Daquis should be
held administratively liable for making it appear that she is counsel for complainant
Cheryl Vasco-Tamaray and for the alleged use of a forged signature on the Petition
for Declaration of Nullity of Marriage.
This court finds that respondent violated Canons 1, 7, 10, and 17 of the Code of
Professional Responsibility. The charge against respondent for violation of Canon
15 is dismissed.
I to be no reason for respondent to advise her "not to oppose Leomarte's decision to
By pretending to be counsel for complainant, respondent violated Canon 1, Rule
1.01 of the Code of Professional Responsibility and failed to uphold her duty of
doing no falsehood nor consent to the doing of any falsehood in court as stated in the
Lawyer's Oath.27
Canon 1, Rule 1.01 of the Code of Professional Responsibility provides:
CANON 1 - A lawyer shall uphold the constitution, obey the laws of the land and
promote respect for law and for legal processes.
RULE 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
In this case, respondent merely denied complainant's allegation that she was
Leomarte Tamaray's counsel28 but was unable to rebut the other allegations against
her.
Respondent admitted that she met complainant in October 2006, 29 but did not
refute30 the statement in Maritess Marquez-Guerrero's Affidavit that Leomarte
Tamaray introduced her as his lawyer.31 Likewise, respondent admitted that she met
with complainant subsequently,32 but did not refute Maritess Marquez-Guerrero's
statement that in one of the meetings, she tried to convince complainant not to
oppose Leomarte Tamaray's decision to annul their marriage.33
Respondent argued in her Answer that she was the counsel for complainant. 34 Yet,
there is no explanation how she was referred to complainant or how they were
introduced. It appears, then, that respondent was contacted by Leomarte Tamaray to
file a Petition for Declaration of Nullity of Marriage on the ground of bigamy. As
stated in Maritess Marquez-Guerrero's Affidavit, "Leomarte told Cheryl that the
reason for that meeting and the presence of Atty. Daquis was because he had
decided to file a case to annul his marriage with Cheryl[. ]"35
Based on this, it seems Leomarte Tamaray intended to file the petition for
declaration of nullity of marriage. However, respondent made it appear that
complainant, not her client Leomarte Tamaray, was the petitioner. There is a
probability that respondent did not want Leomarte Tamaray to be the petitioner
because he would have to admit that he entered into a bigamous marriage, the
admission of which may subject him to criminal liability.
In addition, if it is true that complainant was respondent's client, then there appears
have their marriage annulled."36
The records of this case also support complainant's allegation that she never received
any court process because her purported address in the Petition is the address of
Leomarte Tamaray. The Petition states that complainant is "of legal age, Filipino
citizen, married with postal address at 09 Daang Hari St., Umali Comp., Summitville
Subd., Putatan, Muntinlupa City[.]"37
The Certificate of Marriage of complainant and Leomarte Tamaray states that
Leomarte's residence is at "Summitvil[l]e Subv [sic], Muntinlupa," while
complainant's residence is at "Hermosa St. Gagalangin, Tondo, Manila."38 Assuming
that complainant lived with her husband after they were married, complainant most
likely did not receive court processes because she left their home before the filing of
the Petition for Declaration of Nullity of Marriage. As written in the Minutes of the
meeting before the Office of the City Prosecutor:
P[etitioner] & R[espondent] met sometime in 1993 through his secretary. They
became sweethearts in 1993 and their relationship as steadies lasted until 1996;
During the 3 years of their union, petitioner knew respondent's family as she even
sleeps in their house; Theirs was also a long distance relationship as respondent
worked in Japan;
Upon respondents [sic] return to the Philippines they got married in Feb, 1996. They
had no children, as respondent immediately left for Japan on March 11, 1996;
Respondent returned to the Philippines but unfortunately he brought another
woman. As a result, petitioner left their house.39 (Emphasis supplied)
Further, complainant cannot be faulted for her failure to inform the prosecutor that
she did not file any petition for declaration of nullity of marriage because during the
meeting on March 5, 2007, complainant had no knowledge that the Petition was
filed in her name.40 She obtained a copy of the Petition after the March 5, 2007
meeting.41
In Yupangco-Nakpil v. Uy,42 this court discussed Canon 1, Rule 1.01, as follows:
Rule 1.01, Canon 1 of the Code, as it is applied to the members of the legal
professions, engraves an overriding prohibition against any form of misconduct, viz:
CANON 1 - A LA WYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
The gravity of the misconduct- determinative as it is of the errant lawyer's penalty-
depends on the factual circumstances of each case .
....
. . . Verily, members of the Bar are expected at all times to uphold the integrity and
dignity of the legal profession and refrain from any act or omission which might
lessen the trust and confidence reposed by the public in the fidelity, honesty, and
integrity of the legal profession. By no insignificant measure, respondent blemished
not only his integrity as a member of the Bar, but also that of the legal profession. In
other words, his conduct fell short of the exacting standards expected of him as a
guardian of law and justice.43
When respondent filed the Petition as counsel for complainant when the truth was
otherwise, she committed a falsehood against the trial court and complainant.
II
Respondent violated Canon 7, Rule 7.03 and Canon 10, Rule 10.01 when she
allowed the use of a forged signature on a petition she prepared and notarized. 44
Complainant alleged that her signature on the Petition was forged.45 Respondent
merely denied complainant's allegation.46
The Petition for Declaration of Nullity of Marriage was signed by a certain
"CVasco."47 The records of this case show that complainant has used two signatures.
In her identification cards issued by the University of the East, she used a signature
that spelled out "CVasco."48 In her Complaint-Affidavit against respondent,
complainant used a signature that spelled out "CTamaray."49
A comparison of the signatures appearing on the Petition for Declaration of Nullity
of Marriage and on complainant's identification cards show a difference in the stroke
of the letters "c" and "o." Further, complainant's signatures in the
documents50 attached to the records consistently appear to be of the same height. On
the other hand, her alleged signature on the Petition for Declaration of Nullity of
Marriage has a big letter "c."51 Hence, it seems that complainant's signature on the
Petition for Declaration ofNullity of Marriage was forged.
While there is no evidence to prove that respondent forged complainant's signature,
the fact remains that respondent allowed a forged signature to be used on a petition
she prepared and notarized.52 In doing so, respondent violated Canon 7, Rule 7.03
and Canon 10, Rule 10.01. These canons state:
CANON 7 - A lawyer shall at all times uphold the integrity and dignity of the legal
profession, and support the activities of the integrated bar.
RULE 7.03 - A lawyer shall not engage in conduct that adversely reflects on his
fitness to practice law, nor shall he, whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession.
....
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
RULE 10.01 -A lawyer shall not do any falsehood, nor consent to the doing of any
in Court; nor shall he mislead or allow the Court to be misled by any artifice.
In Embido v. Pe, Jr.,53 Assistant Provincial Prosecutor Salvador N. Pe, Jr. was found
guilty of violating Canon 7, Rule 7.03 and was meted the penalty of disbarment for
falsifying a court decision "in a non-existent court proceeding."54 This court
discussed that:
Gross immorality, conviction of a crime involving moral turpitude, or fraudulent
transactions can justify a lawyer's disbarment or suspension from the practice of law.
Specifically, the deliberate falsification of the court decision by the respondent was
an act that reflected a high degree of moral turpitude on his part. Worse, the act
made a mockery of the administration of justice in this country, given the purpose of
the falsification, which was to mislead a foreign tribunal on the personal status of a
person. He thereby became unworthy of continuing as a member of the Bar. 55
In a similar manner, respondent's act of allowing the use of a forged signature on a
petition she prepared and notarized demonstrates a lack of moral fiber on her part.
Other acts that this court has found violative of Canon 7, Rule 7.03 are: engaging in
a scuffle inside court chambers;56 openly doubting paternity of his own
son;57 hurling invectives at a Clerk of Court;58 harassing occupants of a
property;59 using intemperate language;60 and engaging in an extramarital affair.61
Furthermore, allowing the use of a forged signature on a petition filed before a court
is tantamount to consenting to the commission of a falsehood before courts, in
violation of Canon 10.
In Spouses Umaguing v. De Vera,62 this court discussed the importance of Canon 10,
Rule 10.01, as follows:
The Lawyer's Oath enjoins every lawyer not only to obey the laws of the land but
also to refrain from doing any falsehood in or out of court or from consenting to the
doing of any in court, and to conduct himself according to the best of his knowledge
and discretion with all good fidelity to the courts as well as to his clients. Every
lawyer is a servant of the law, and has to observe and maintain the rule of law as
well as be an exemplar worthy of emulation by others. It is by no means a
coincidence, therefore, that the core values of honesty, integrity, and trustworthiness
are emphatically reiterated by the Code of Professional Responsibility. In this light,
Rule 10.01, Canon 10 of the Code of Professional Responsibility provides that "[a]
lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor
shall he mislead, or allow the Court to be misled by any artifice." 63 (Emphasis
supplied)
III
This court further finds that respondent violated Canon 17, which states:
CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be
mindful of the trust and confidence reposed in him.
Respondent failed to protect the interests of her client when she represented
complainant, who is the opposing party of her client Leomarte Tamaray, in the same
case.
The responsibilities of a lawyer under Canon 17 were discussed in Penilla v. Alcid,
Jr.:64
The legal profession dictates that it is not a mere duty, but an obligation, of a lawyer
to accord the highest degree of fidelity, zeal and fervor in the protection of the
client's interest. The most thorough groundwork and study must be undertaken in
order to safeguard the interest of the client. The honor bestowed on his person to
carry the title of a lawyer does not end upon taking the Lawyer's Oath and signing
the Roll of Attorneys. Rather, such honor attaches to him for the entire duration of
his practice of law and carries with it the consequent responsibility of not only
satisfying the basic requirements but also going the extra mile in the protection of
the interests of the client and the pursuit of justice[. ] 65
Respondent is reminded of the duties and responsibilities of members of the legal
profession, as discussed in Tenoso v. Echanez:66
Time and again, this Court emphasizes that the practice of law is imbued with public
interest and that "a lawyer owes substantial duties not only to his client, but also to
his brethren in the profession, to the courts, and to the nation, and takes part in one
of the most important functions of the State-the administration of justice-as an
officer of the court." Accordingly, "[l]awyers are bound to maintain not only a high
standard of legal proficiency, but also of morality, honesty, integrity and fair
dealing. "67 (Citations omitted)
IV
This court notes that respondent may have violated Canon 15, Rule 15.03 when she
entered her appearance as counsel for complainant68 even though she was engaged
as counsel by Leomarte Tamaray.69 Canon 15, Rule 15.03 of the Code of
Professional Responsibility provides:
CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings
and transactions with his client.
....
Rule 15.03 - A lawyer shall not represent conflicting interests except by written
consent of all concerned given after a full disclosure of the facts.
The rationale for Canon 15 was discussed in Samson v. Era:70
The rule prohibiting conflict of interest was fashioned to prevent situations wherein
a lawyer would be representing a client whose interest is directly adverse to any of
his present or former clients. In the same way, a lawyer may only be allowed to
represent a client involving the same or a substantially related matter that is
materially adverse to the former client only if the former client consents to it after
consultation. The rule is grounded in the fiduciary obligation of loyalty. Throughout
the course of a lawyer-client relationship, the lawyer learns all the facts connected
with the client's case, including the weak and strong points of the case. Knowledge
and information gathered in the course of the relationship must be treated as sacred
and guarded with care. It behooves lawyers not only to keep inviolate the client's
confidence, but also to avoid the appearance of treachery and double-dealing, for
only then can litigants be encouraged to entrust their secrets to their lawyers, which
is paramount in the administration of justice. The nature of that relationship is,
therefore, one of trust and confidence of the highest degree .
....
. . . The spirit behind this rule is that the client's confidence once given should not be
stripped by the mere expiration of the professional employment.1wphi1 Even after
the severance of the relation, a lawyer should not do anything that will injuriously
affect his former client in any matter in which the lawyer previously represented the
client. Nor should the lawyer disclose or use any of the client's confidences acquired
in the previous relation. In this regard, Canon 17 of the Code of Professional
Responsibility expressly declares that: "A lawyer owes fidelity to the cause of his
client and he shall be mindful of the trust and confidence reposed in him."
The lawyer's highest and most unquestioned duty is to protect the client at all
hazards and costs even to himself. The protection given to the client is perpetual and
does not cease with the termination of the litigation, nor is it affected by the client's
ceasing to employ the attorney and retaining another, or by any other change of
relation between them. It even survives the death of the client. 71
The test to determine whether conflict of interest exists was discussed in Hornilla v.
Salunat:72
There is conflict of interest when a lawyer represents inconsistent interests of two or
more opposing parties. The test is "whether or not in behalf of one client, it is the
lawyer's duty to fight for an issue or claim, but it is his duty to oppose it for the other
client. In brief, if he argues for one client, this argument will be opposed by him
when he argues for the other client." This rule covers not only cases in which
confidential communications have been confided, but also those in which no
confidence has been bestowed or will be used. Also, there is conflict of interests if
the acceptance of the new retainer will require the attorney to perform an act which
will injuriously affect his first client in any matter in which he represents him and
also whether he will be called upon in his new relation to use against his first client
any knowledge acquired through their connection. Another test of the inconsistency
of interests is whether the acceptance of a new relation will prevent an attorney
from the full discharge of his duty of undivided fidelity and loyalty to his client or
invite suspicion of unfaithfulness or double dealing in the performance
thereof.73 (Emphasis supplied, citations omitted)
Respondent was engaged by Leomarte Tamaray to be his counsel. 74 When the
Petition for Declaration of Nullity of Marriage was filed, respondent signed the
Petition as counsel for complainant.75 If respondent was indeed engaged as counsel
by complainant, then there is conflict of interest, in violation of Canon 15, Rule
15.03.
However, there is nothing on record to show that respondent was engaged as counsel
by complainant. Hence, this court finds that respondent did not commit conflict of
interest.
V
On a final note, Rule 139-B has been amended by Bar Matter No. 1645 dated
October 13, 2015. Section 12 of Rule 139-B now provides that:
Rule 139-B. Disbarment and Discipline of Attorneys
....
Section 12. Review and recommendation by the Board of Governors.
(a) Every case heard by an investigator shall be reviewed by the IBP
Board of Governors upon the record and evidence transmitted to it by the
Investigator with his report.
(b) After its review, the Board, by the vote of a majority of its total
membership, shall recommend to the Supreme Court the dismissal of the
complaint or the imposition of disciplinary action against the respondent.
The Board shall issue a resolution setting forth its findings and
recommendations, clearly and distinctly stating the facts and the reasons
on which it is based. The resolution shall be issued within a period not
exceeding thirty (30) days from the next meeting of the Board following
the submission of the Investigator's report.
(c) The Board's resolution, together with the entire records and all
evidence presented and submitted, shall be transmitted to the Supreme
Court for final action within ten (10) days from issuance of the resolution.
(d) Notice of the resolution shall be given to all parties through their
counsel, if any.76
Under the old rule, the Board of Governors of the Integrated Bar of the Philippines
was given the power to "issue a decision"77 if the lawyer complained of was
exonerated or meted a penalty of "less than suspension or disbarment."78 In addition,
the case would be deemed terminated unless an interested party filed a petition
before this court.79
The amendments to Rule 139-B is a reiteration that only this court has the power to
impose disciplinary action on members of the bar. The factual findings and
recommendations of the Commission on Bar Discipline and the Board of Governors
of the Integrated Bar of the Philippines are recommendatory, subject to review by
this court.80
WHEREFORE, respondent Atty. Deborah Z. Daquis is found GUILTY of
violating Canon 1, Rule 1.01, Canon 7, Rule 7.03, Canon 10, Rule 10.01, and Canon
17 of the Code of Professional Responsibility.
The charge for violation of Canon 15, Rule 15.03 against respondent Atty. Deborah
Z. Daquis is DISMISSED.
The penalty of DISBARMENT is imposed upon respondent Atty. Deborah Z.
Daquis. The Office of the Bar Confidant is directed to remove the name of Deborah
Z. Daquis from the Roll of Attorneys.
Let a copy of this Resolution be furnished to the Office of the Bar Confidant to be
appended to respondent's personal record as attorney, to the Integrated Bar of the
Philippines, and to the Office of the Court Administrator for dissemination to all
courts throughout the country for their information and guidance.
This Resolution takes effect immediately.
SO ORDERED.
Young v Batuegas
n December 29, 2000, Atty. Walter T. Young filed a Verified Affidavit-
Complaint for disbarment against Attys. Ceasar G. Batuegas, Miguelito Nazareno V.
Llantino and Franklin Q. Susa for allegedly committing deliberate falsehood in court
and violating the lawyers oath.[1]
Complainant is the private prosecutor in Criminal Case No. 00-187627 for
Murder, entitled People of the Philippines versus Crisanto Arana, Jr., pending
before the Regional Trial Court of Manila, Branch 27. On December 13, 2000,
respondents Batuegas and Llantino, as counsel for accused, filed a Manifestation
with Motion for Bail, alleging that the accused has voluntarily surrendered to a
person in authority. As such, he is now under detention.[2]Upon personal verification
with the National Bureau of Investigation (NBI) where accused Arana allegedly
surrendered, complainant learned that he surrendered only on December 14, 2000, as
shown by the Certificate of Detention executed by Atty. Rogelio M. Mamauag,
Chief of the Security Management Division of the NBI.
Respondent Susa, the Branch Clerk of Court of RTC of Manila, Branch 27,
calendared the motion on December 15, 2000 despite the foregoing irregularity and
other formal defects, namely, the lack of notice of hearing to the private
complainant, violation of the three-day notice rule, and the failure to attach the
Certificate of Detention which was referred to in the Motion as Annex 1.
Respondents filed their respective comments, declaring that on December 13,
2000, upon learning that a warrant of arrest was issued against their client, they filed
the Manifestation with Motion for Bail with the trial court.Then they immediately
fetched the accused in Cavite and brought him to the NBI to voluntarily
surrender. However, due to heavy traffic, they arrived at the NBI at 2:00 a.m. the
next day; hence, the certificate of detention indicated that the accused surrendered
on December 14, 2000. They argued that there was neither unethical conduct nor
falsehood in the subject pleading as their client has voluntarily surrendered and was
detained at the NBI. As regards the lack of notice of hearing, they contend that
complainant, as private prosecutor, was not entitled to any notice.Nevertheless, they
furnished the State and City prosecutors copies of the motion with notice of hearing
thereof.Moreover, the hearing of a motion on shorter notice is allowed under Rule
15, Sec. 4(2) of the Rules of Court.[3]
For his part, respondent Susa argues in his comment that he was no longer in
court when his co-respondents filed the Manifestation with Motion for Bail. Ms.
Teofila A. Pea, Clerk III, received the said Motion and noticed that it was set for
hearing on December 15, 2000 and the Certificate of Detention was not
attached. However, the presiding judge instructed her to receive the Motion subject
to the presentation of the Certificate of Detention before the hearing. Thus, the
inclusion of the Motion in the courts calendar on December 15, 2000 was authorized
by the presiding judge and, thus, was done by respondent Susa in faithful
performance of his ministerial duty.
In a Resolution dated August 13, 2001,[4] the instant case was referred to the
Integrated Bar of the Philippines for investigation, report and recommendation or
decision.
On December 7, 2001, the Investigating Commissioner, Rebecca Villanueva-
Maala, submitted her report and recommendation as follows:
WHEREFORE, the foregoing premises considered, it is respectfully recommended
that Atty. Ceasar G. Batuegas and Atty. Miguelito Nazareno V. Llantino be
suspended from the practice of their profession as a lawyer/member of the Bar for a
period of six (6) months from receipt hereof. The complaint against Atty. Franklin
Q. Susa, upon the other hand, is hereby recommended dismissed for lack of merit.[5]
The foregoing Report and Recommendation was adopted and approved by the
IBP-Commission on Bar Discipline in Resolution No. XV-2002-400, to wit:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating Commissioner
of the above-entitled case, herein made part of this Resolution/Decision as Annex A;
and, finding the recommendation fully supported by the evidence on record and the
applicable laws and rules, and in view of respondents commission of deliberate
falsehood, Atty. Batuegas and Atty. Llantino are hereby SUSPENDED from the
practice of law for six (6) months. The complaint against Atty. Susa is hereby
DISMISSED for lack of merit.[6]
We agree with the findings and recommendations of the Investigating
Commissioner. Respondents Batuegas and Llantino are guilty of deliberate
falsehood.
A lawyer must be a disciple of truth.[7] He swore upon his admission to the Bar
that he will do no falsehood nor consent to the doing of any in court and he shall
conduct himself as a lawyer according to the best of his knowledge and discretion
with all good fidelity as well to the courts as to his clients. [8] He should bear in mind
that as an officer of the court his high vocation is to correctly inform the court upon
the law and the facts of the case and to aid it in doing justice and arriving at correct
conclusion.[9] The courts, on the other hand, are entitled to expect only complete
honesty from lawyers appearing and pleading before them.[10] While a lawyer has
the solemn duty to defend his clients rights and is expected to display the utmost
zeal in defense of his clients cause, his conduct must never be at the expense of
truth.[11]
The Court may disbar or suspend a lawyer for misconduct, whether in his
professional or private capacity, which shows him to be wanting in moral character,
in honesty, probity, and good demeanor, thus proving unworthy to continue as an
officer of the court.[12]
Evidently, respondent lawyers fell short of the duties and responsibilities
expected from them as members of the bar. Anticipating that their Motion for Bail
will be denied by the court if it found that it had no jurisdiction over the person of
the accused, they craftily concealed the truth by alleging that accused had
voluntarily surrendered to a person in authority and was under detention. Obviously,
such artifice was a deliberate ruse to mislead the court and thereby contribute to
injustice. To knowingly allege an untrue statement of fact in the pleading is a
contemptuous conduct that we strongly condemn. They violated their oath when
they resorted to deception.
Respondents contend that their allegation of the accuseds detention was
merely a statement of an ultimate fact which still had to be proved by evidence at the
hearing of the Motion. That they were able to show that their client was already
under the custody of the NBI at the hearing held on December 15, 2000 does not
exonerate them. The fact remains that the allegation that the accused was in the
custody of the NBI on December 13, 2000 was false.
In Comia vs. Antona, we held:
It is of no moment that the accused eventually surrendered to the police authorities
on the same date tentatively scheduled for the hearing of the application for bail. To
our mind, such supervening event is of no bearing and immaterial; it does not
absolve respondent judge from administrative liability considering that he should not
have accorded recognition to the application for bail filed on behalf of persons who,
at that point, were devoid of personality to ask such specific affirmative relief from
the court.[13]
In this jurisdiction, whether bail is a matter of right or discretion, reasonable
notice of hearing is required to be given to the prosecutor or fiscal, or at least, he
must be asked for his recommendation.[14]
In the case at bar, the prosecution was served with notice of hearing of the
motion for bail two days prior to the scheduled date. Although a motion may be
heard on short notice, respondents failed to show any good cause to justify the non-
observance of the three-day notice rule. Verily, as lawyers, they are obliged to
observe the rules of procedure and not to misuse them to defeat the ends of
justice.[15]
Finally, we are in accord with the Investigating Commissioner that respondent
clerk of court should not be made administratively liable for including the Motion in
the calendar of the trial court, considering that it was authorized by the presiding
judge. However, he is reminded that his administrative functions, although not
involving the discretion or judgment of a judge, are vital to the prompt and sound
administration of justice.[16] Thus, he should not hesitate to inform the judge if he
should find any act or conduct on the part of lawyers which are contrary to the
established rules of procedure.
WHEREFORE, in view of the foregoing, respondent Attys. Ceasar G.
Batuegas, Miguelito Nazareno V. Llantino are found guilty of committing deliberate
falsehood. Accordingly, they are SUSPENDED from the practice of law for a period
of six (6) months with a warning that a repetition of the same or similar act will be
dealt with more severely.
Let a copy of this Resolution be attached to the personal records of Attys.
Ceasar G. Batuegas and Miguelito Nazareno V. Llantino in the Office of the Bar
Confidant and copies thereof be furnished the Integrated Bar of the Philippines.
SO ORDERED.
Insular Life Emloyees v Insular Life Association
Appeal, by certiorari to review a decision and a resolution en banc of the Court of
Industrial Relations dated August 17, 1965 and October 20, 1965, respectively, in
Case 1698-ULP.
The Insular Life Assurance Co., Ltd., Employees Association-NATU, FGU
Insurance Group Workers & Employees Association-NATU, and Insular Life
Building Employees Association-NATU (hereinafter referred to as the Unions),
while still members of the Federation of Free Workers (FFW), entered into separate
collective bargaining agreements with the Insular Life Assurance Co., Ltd. and the
FGU Insurance Group (hereinafter referred to as the Companies).
Two of the lawyers of the Unions then were Felipe Enaje and Ramon Garcia; the
latter was formerly the secretary-treasurer of the FFW and acting president of the
Insular Life/FGU unions and the Insular Life Building Employees Association.
Garcia, as such acting president, in a circular issued in his name and signed by him,
tried to dissuade the members of the Unions from disaffiliating with the FFW and
joining the National Association of Trade Unions (NATU), to no avail.
Enaje and Garcia soon left the FFW and secured employment with the Anti-Dummy
Board of the Department of Justice. Thereafter, the Companies hired Garcia in the
latter part of 1956 as assistant corporate secretary and legal assistant in their Legal
Department, and he was soon receiving P900 a month, or P600 more than he was
receiving from the FFW. Enaje was hired on or about February 19, 1957 as
personnel manager of the Companies, and was likewise made chairman of the
negotiating panel for the Companies in the collective bargaining with the Unions.
In a letter dated September 16, 1957, the Unions jointly submitted proposals to the
Companies for a modified renewal of their respective collective bargaining contracts
which were then due to expire on September 30, 1957. The parties mutually agreed
and to make whatever benefits could be agreed upon retroactively effective October
1, 1957.
Thereafter, in the months of September and October 1957 negotiations were
conducted on the Union's proposals, but these were snagged by a deadlock on the
issue of union shop, as a result of which the Unions filed on January 27, 1958 a
notice of strike for "deadlock on collective bargaining." Several conciliation
conferences were held under the auspices of the Department of Labor wherein the
conciliators urged the Companies to make reply to the Unions' proposals en toto so
that the said Unions might consider the feasibility of dropping their demand for
union security in exchange for other benefits. However, the Companies did not make
any counter-proposals but, instead, insisted that the Unions first drop their demand
for union security, promising money benefits if this was done. Thereupon, and prior
to April 15, 1958, the petitioner Insular Life Building Employees Association-
NATU dropped this particular demand, and requested the Companies to answer its
demands, point by point, en toto. But the respondent Insular Life Assurance Co. still
refused to make any counter-proposals. In a letter addressed to the two other Unions
by the joint management of the Companies, the former were also asked to drop their
union security demand, otherwise the Companies "would no longer consider
themselves bound by the commitment to make money benefits retroactive to
October 1, 1957." By a letter dated April 17, 1958, the remaining two petitioner
unions likewise dropped their demand for union shop. April 25, 1958 then was set
by the parties to meet and discuss the remaining demands.
From April 25 to May 6, 1958, the parties negotiated on the labor demands but with
no satisfactory result due to a stalemate on the matter of salary increases. On May
13, 1958 the Unions demanded from the Companies final counter-proposals on their
economic demands, particularly on salary increases. Instead of giving counter-
proposals, the Companies on May 15, 1958 presented facts and figures and
requested the Unions to submit a workable formula which would justify their own
proposals, taking into account the financial position of the former. Forthwith the
Unions voted to declare a strike in protest against what they considered the
Companies' unfair labor practices.
Meanwhile, eighty-seven (87) unionists were reclassified as supervisors without
increase in salary nor in responsibility while negotiations were going on in the
Department of Labor after the notice to strike was served on the Companies. These
employees resigned from the Unions.
On May 20, 1958 the Unions went on strike and picketed the offices of the Insular
Life Building at Plaza Moraga.
On May 21, 1958 the Companies through their acting manager and president, the
respondent Jose M. Olbes (hereinafter referred to as the respondent Olbes), sent to
each of the strikers a letter (exhibit A) quoted verbatim as follows:
We recognize it is your privilege both to strike and to conduct
picketing.
However, if any of you would like to come back to work
voluntarily, you may:
1. Advise the nearest police officer or security guard of your
intention to do so.
2. Take your meals within the office.
3. Make a choice whether to go home at the end of the day or to
sleep nights at the office where comfortable cots have been
prepared.
4. Enjoy free coffee and occasional movies.
5. Be paid overtime for work performed in excess of eight hours.
6. Be sure arrangements will be made for your families.
The decision to make is yours whether you still believe in the
motives of the strike or in the fairness of the Management.
The Unions, however, continued on strike, with the exception of a few unionists
who were convinced to desist by the aforesaid letter of May 21, 1958.
From the date the strike was called on May 21, 1958, until it was called off on May
31, 1958, some management men tried to break thru the Unions' picket lines. Thus,
on May 21, 1958 Garcia, assistant corporate secretary, and Vicente Abella, chief of
the personnel records section, respectively of the Companies, tried to penetrate the
picket lines in front of the Insular Life Building. Garcia, upon approaching the
picket line, tossed aside the placard of a picketer, one Paulino Bugay; a fight ensued
between them, in which both suffered injuries. The Companies organized three bus-
loads of employees, including a photographer, who with the said respondent Olbes,
succeeded in penetrating the picket lines in front of the Insular Life Building, thus
causing injuries to the picketers and also to the strike-breakers due to the resistance
offered by some picketers.
Alleging that some non-strikers were injured and with the use of photographs as
evidence, the Companies then filed criminal charges against the strikers with the
City Fiscal's Office of Manila. During the pendency of the said cases in the fiscal's
office, the Companies likewise filed a petition for injunction with damages with the
Court of First Instance of Manila which, on the basis of the pendency of the various
criminal cases against striking members of the Unions, issued on May 31, 1958 an
order restraining the strikers, until further orders of the said court, from stopping,
impeding, obstructing, etc. the free and peaceful use of the Companies' gates,
entrance and driveway and the free movement of persons and vehicles to and from,
out and in, of the Companies' building.
On the same date, the Companies, again through the respondent Olbes, sent
individually to the strikers a letter (exhibit B), quoted hereunder in its entirety:
The first day of the strike was last 21 May 1958.
Our position remains unchanged and the strike has made us even
more convinced of our decision.
 We do not know how long you intend to stay out, but we cannot
hold your positions open for long. We have continued to operate
and will continue to do so with or without you.
If you are still interested in continuing in the employ of the
Group Companies, and if there are no criminal charges pending
against you, we are giving you until 2 June 1958 to report for
work at the home office. If by this date you have not yet
reported, we may be forced to obtain your replacement.
Before, the decisions was yours to make.
So it is now.
Incidentally, all of the more than 120 criminal charges filed against the members of
the Unions, except three (3), were dismissed by the fiscal's office and by the courts.
These three cases involved "slight physical injuries" against one striker and "light
coercion" against two others.
At any rate, because of the issuance of the writ of preliminary injunction against
them as well as the ultimatum of the Companies giving them until June 2, 1958 to
return to their jobs or else be replaced, the striking employees decided to call off
their strike and to report back to work on June 2, 1958.
However, before readmitting the strikers, the Companies required them not only to
secure clearances from the City Fiscal's Office of Manila but also to be screened by
a management committee among the members of which were Enage and Garcia. The
screening committee initially rejected 83 strikers with pending criminal charges.
However, all non-strikers with pending criminal charges which arose from the
breakthrough incident were readmitted immediately by the Companies without being
required to secure clearances from the fiscal's office. Subsequently, when practically
all the strikers had secured clearances from the fiscal's office, the Companies
readmitted only some but adamantly refused readmission to 34 officials and
members of the Unions who were most active in the strike, on the ground that they
committed "acts inimical to the interest of the respondents," without however stating
the specific acts allegedly committed. Among those who were refused readmission
are Emiliano Tabasondra, vice president of the Insular Life Building Employees'
Association-NATU; Florencio Ibarra, president of the FGU Insurance Group
Workers & Employees Association-NATU; and Isagani Du Timbol, acting president
of the Insular Life Assurance Co., Ltd. Employees Association-NATU. Some 24 of
the above number were ultimately notified months later that they were being
dismissed retroactively as of June 2, 1958 and given separation pay checks
computed under Rep. Act 1787, while others (ten in number) up to now have not
been readmitted although there have been no formal dismissal notices given to them.
On July 29, 1958 the CIR prosecutor filed a complaint for unfair labor practice
against the Companies under Republic Act 875. The complaint specifically charged
the Companies with (1) interfering with the members of the Unions in the exercise
of their right to concerted action, by sending out individual letters to them urging
them to abandon their strike and return to work, with a promise of comfortable cots,
free coffee and movies, and paid overtime, and, subsequently, by warning them that
if they did not return to work on or before June 2, 1958, they might be replaced; and
(2) discriminating against the members of the Unions as regards readmission to
work after the strike on the basis of their union membership and degree of
participation in the strike.
On August 4, 1958 the Companies filed their answer denying all the material
allegations of the complaint, stating special defenses therein, and asking for the
dismissal of the complaint.
After trial on the merits, the Court of Industrial Relations, through Presiding Judge
Arsenio Martinez, rendered on August 17, 1965 a decision dismissing the Unions'
complaint for lack of merit. On August 31, 1965 the Unions seasonably filed their
motion for reconsideration of the said decision, and their supporting memorandum
on September 10, 1965. This was denied by the Court of Industrial Relations en
banc in a resolution promulgated on October 20, 1965.
Hence, this petition for review, the Unions contending that the lower court erred:
1. In not finding the Companies guilty of unfair labor practice in
sending out individually to the strikers the letters marked
Exhibits A and B;
2. In not finding the Companies guilty of unfair labor practice
for discriminating against the striking members of the Unions in
the matter of readmission of employees after the strike;
3. In not finding the Companies guilty of unfair labor practice
for dismissing officials and members of the Unions without
giving them the benefit of investigation and the opportunity to
present their side in regard to activities undertaken by them in
the legitimate exercise of their right to strike; and
 4. In not ordering the reinstatement of officials and members of
the Unions, with full back wages, from June 2, 1958 to the date
of their actual reinstatement to their usual employment.
I. The respondents contend that the sending of the letters, exhibits A and B,
constituted a legitimate exercise of their freedom of speech. We do not agree. The
said letters were directed to the striking employees individually by registered
special delivery mail at that without being coursed through the Unions which
were representing the employees in the collective bargaining.
The act of an employer in notifying absent employees
individually during a strike following unproductive efforts at
collective bargaining that the plant would be operated the next
day and that their jobs were open for them should they want to
come in has been held to be an unfair labor practice, as an active
interference with the right of collective bargaining through
dealing with the employees individually instead of through their
collective bargaining representatives. (31 Am. Jur.
563, citing NLRB v. Montgomery Ward & Co. [CA 9th] 133
F2d 676, 146 ALR 1045)
Indeed, it is an unfair labor practice for an employer operating under a collective
bargaining agreement to negotiate or to attempt to negotiate with his employees
individually in connection with changes in the agreement. And the basis of the
prohibition regarding individual bargaining with the strikers is that although the
union is on strike, the employer is still under obligation to bargain with the union as
the employees' bargaining representative (Melo Photo Supply Corporation vs.
National Labor Relations Board, 321 U.S. 332).
Indeed, some such similar actions are illegal as constituting unwarranted acts of
interference. Thus, the act of a company president in writing letters to the strikers,
urging their return to work on terms inconsistent with their union membership, was
adjudged as constituting interference with the exercise of his employees' right to
collective bargaining (Lighter Publishing, CCA 7th, 133 F2d 621). It is likewise an
act of interference for the employer to send a letter to all employees notifying them
to return to work at a time specified therein, otherwise new employees would be
engaged to perform their jobs. Individual solicitation of the employees or visiting
their homes, with the employer or his representative urging the employees to cease
union activity or cease striking, constitutes unfair labor practice. All the above-
detailed activities are unfair labor practices because they tend to undermine the
concerted activity of the employees, an activity to which they are entitled free from
the employer's molestation.1
Moreover, since exhibit A is a letter containing promises of benefits to the
employees in order to entice them to return to work, it is not protected by the free
speech provisions of the Constitution (NLRB v. Clearfield Cheese Co., Inc., 213 F2d
70). The same is true with exhibit B since it contained threats to obtain replacements
for the striking employees in the event they did not report for work on June 2, 1958.
The free speech protection under the Constitution is inapplicable where the
expression of opinion by the employer or his agent contains a promise of benefit, or
threats, or reprisal (31 Am. Jur. 544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d
70; NLRB vs. Goigy Co., 211 F2d 533, 35 ALR 2d 422).
Indeed, when the respondents offered reinstatement and attempted to "bribe" the
strikers with "comfortable cots," "free coffee and occasional movies," "overtime"
pay for "work performed in excess of eight hours," and "arrangements" for their
families, so they would abandon the strike and return to work, they were guilty of
strike-breaking and/or union-busting and, consequently, of unfair labor practice. It is
equivalent to an attempt to break a strike for an employer to offer reinstatement to
striking employees individually, when they are represented by a union, since the
employees thus offered reinstatement are unable to determine what the
consequences of returning to work would be.
Likewise violative of the right to organize, form and join labor organizations are the
following acts: the offer of a Christmas bonus to all "loyal" employees of a company
shortly after the making of a request by the union to bargain; wage increases given
for the purpose of mollifying employees after the employer has refused to bargain
with the union, or for the purpose of inducing striking employees to return to work;
the employer's promises of benefits in return for the strikers' abandonment of their
strike in support of their union; and the employer's statement, made about 6 weeks
after the strike started, to a group of strikers in a restaurant to the effect that if the
strikers returned to work, they would receive new benefits in the form of
hospitalization, accident insurance, profit-sharing, and a new building to work in.2
Citing paragraph 5 of the complaint filed by the acting prosecutor of the lower court
which states that "the officers and members of the complainant unions decided to
call off the strike and return to work on June 2, 1958 by reason of the injunction
issued by the Manila Court of First Instance," the respondents contend that this was
the main cause why the strikers returned to work and not the letters, exhibits A and
B. This assertion is without merit. The circumstance that the strikers later decided to
return to work ostensibly on account of the injunctive writ issued by the Court of
First Instance of Manila cannot alter the intrinsic quality of the letters, which were
calculated, or which tended, to interfere with the employees' right to engage in
lawful concerted activity in the form of a strike. Interference constituting unfair
labor practice will not cease to be such simply because it was susceptible of being
thwarted or resisted, or that it did not proximately cause the result intended. For
success of purpose is not, and should not, be the criterion in determining whether or
not a prohibited act constitutes unfair labor practice.
The test of whether an employer has interfered with and coerced
employees within the meaning of subsection (a) (1) is whether
the employer has engaged in conduct which it may reasonably
be said tends to interfere with the free exercise of employees'
rights under section 3 of the Act, and it is not necessary that
there be direct evidence that any employee was in fact
intimidated or coerced by statements of threats of the employer
if there is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-organization and
collective bargaining. (Francisco, Labor Laws 1956, Vol. II, p.
323, citing NLRB v. Ford, C.A., 1948, 170 F2d 735).
Besides, the letters, exhibits A and B, should not be considered by themselves alone
but should be read in the light of the preceding and subsequent circumstances
surrounding them. The letters should be interpreted according to the "totality of
conduct doctrine,"
... whereby the culpability of an employer's remarks were to be
evaluated not only on the basis of their implicit implications, but
were to be appraised against the background of and in
conjunction with collateral circumstances. Under this "doctrine"
expressions of opinion by an employer which, though innocent
in themselves, frequently were held to be culpable because of
the circumstances under which they were uttered, the history of
the particular employer's labor relations or anti-union bias or
because of their connection with an established collateral plan of
coercion or interference. (Rothenberg on Relations, p. 374, and
cases cited therein.)
It must be recalled that previous to the petitioners' submission of proposals for an
amended renewal of their respective collective bargaining agreements to the
respondents, the latter hired Felipe Enage and Ramon Garcia, former legal counsels
of the petitioners, as personnel manager and assistant corporate secretary,
respectively, with attractive compensations. After the notice to strike was served on
the Companies and negotiations were in progress in the Department of Labor, the
respondents reclassified 87 employees as supervisors without increase in salary or in
responsibility, in effect compelling these employees to resign from their unions. And
during the negotiations in the Department of Labor, despite the fact that the
petitioners granted the respondents' demand that the former drop their demand for
union shop and in spite of urgings by the conciliators of the Department of Labor,
the respondents adamantly refused to answer the Unions' demands en toto.
Incidentally, Enage was the chairman of the negotiating panel for the Companies in
the collective bargaining between the former and the Unions. After the petitioners
went to strike, the strikers were individually sent copies of exhibit A, enticing them
to abandon their strike by inducing them to return to work upon promise of special
privileges. Two days later, the respondents, thru their president and manager,
respondent Jose M. Olbes, brought three truckloads of non-strikers and others,
escorted by armed men, who, despite the presence of eight entrances to the three
buildings occupied by the Companies, entered thru only one gate less than two
meters wide and in the process, crashed thru the picket line posted in front of the
premises of the Insular Life Building. This resulted in injuries on the part of the
picketers and the strike-breakers.lwph1.t Then the respondents brought against
the picketers criminal charges, only three of which were not dismissed, and these
three only for slight misdemeanors. As a result of these criminal actions, the
respondents were able to obtain an injunction from the court of first instance
restraining the strikers from stopping, impeding, obstructing, etc. the free and
peaceful use of the Companies' gates, entrance and driveway and the free movement
of persons and vehicles to and from, out and in, of the Companies' buildings. On the
same day that the injunction was issued, the letter, Exhibit B, was sent again
individually and by registered special delivery mail to the strikers, threatening
them with dismissal if they did not report for work on or before June 2, 1958. But
when most of the petitioners reported for work, the respondents thru a screening
committee of which Ramon Garcia was a member refused to admit 63
members of the Unions on the ground of "pending criminal charges." However,
when almost all were cleared of criminal charges by the fiscal's office, the
respondents adamantly refused admission to 34 officials and union members. It is
not, however, disputed that all-non-strikers with pending criminal charges which
arose from the breakthrough incident of May 23, 1958 were readmitted immediately
by the respondents. Among the non-strikers with pending criminal charges who
were readmitted were Generoso Abella, Enrique Guidote, Emilio Carreon, Antonio
Castillo, Federico Barretto, Manuel Chuidian and Nestor Cipriano. And despite the
fact that the fiscal's office found no probable cause against the petitioning strikers,
the Companies adamantly refused admission to them on the pretext that they
committed "acts inimical to the interest of the respondents," without stating
specifically the inimical acts allegedly committed. They were soon to admit,
however, that these alleged inimical acts were the same criminal charges which were
dismissed by the fiscal and by the courts..
Verily, the above actuations of the respondents before and after the issuance of the
letters, exhibit A and B, yield the clear inference that the said letters formed of the
respondents scheme to preclude if not destroy unionism within them.
To justify the respondents' threat to dismiss the strikers and secure replacements for
them in order to protect and continue their business, the CIR held the petitioners'
strike to be an economic strike on the basis of exhibit 4 (Notice of Strike) which
states that there was a "deadlock in collective bargaining" and on the strength of the
supposed testimonies of some union men who did not actually know the very reason
for the strike. It should be noted that exhibit 4, which was filed on January 27, 1958,
states, inter alia:
TO: BUREAU OF LABOR RELATIONS
DEPARTMENT OF LABOR
MANILA
Thirty (30) days from receipt of this notice by the Office, this
[sic] unions intends to go on strike against
THE INSULAR LIFE ASSURANCE CO.,
LTD.
Plaza Moraga, Manila
THE FGU INSURANCE GROUP
Plaza Moraga, Manila
INSULAR LIFE BUILDING
ADMINISTRATION
Plaza Moraga, Manila .
for the following reason: DEADLOCK IN COLLECTIVE
BARGAINING...
However, the employees did not stage the strike after the thirty-day period, reckoned
from January 27, 1958. This simply proves that the reason for the strike was not the
deadlock on collective bargaining nor any lack of economic concessions. By letter
dated April 15, 1958, the respondents categorically stated what they thought was the
cause of the "Notice of Strike," which so far as material, reads:
3. Because you did not see fit to agree with our position on the
union shop, you filed a notice of strike with the Bureau of Labor
Relations on 27 January 1958, citing `deadlock in collective
bargaining' which could have been for no other issue than the
union shop." (exhibit 8, letter dated April 15, 1958.)
The strike took place nearly four months from the date the said notice of strike was
filed. And the actual and main reason for the strike was, "When it became crystal
clear the management double crossed or will not negotiate in good faith, it is
tantamount to refusal collectively and considering the unfair labor practice in the
meantime being committed by the management such as the sudden resignation of
some unionists and [who] became supervisors without increase in salary or change
in responsibility, such as the coercion of employees, decided to declare the strike."
(tsn., Oct. 14, 1958, p. 14.) The truth of this assertion is amply proved by the
following circumstances: (1) it took the respondents six (6) months to consider the
petitioners' proposals, their only excuse being that they could not go on with the
negotiations if the petitioners did not drop the demand for union shop (exh. 7,
respondents' letter dated April 7, 1958); (2) when the petitioners dropped the
demand for union shop, the respondents did not have a counter-offer to the
petitioners' demands. Sec. 14 of Rep. Act 875 required the respondents to make a
reply to the petitioners' demands within ten days from receipt thereof, but instead
they asked the petitioners to give a "well reasoned, workable formula which takes
into account the financial position of the group companies." (tsn., Sept. 8, 1958, p.
62; tsn., Feb. 26, 1969, p. 49.)
II. Exhibit H imposed three conditions for readmission of the strikers, namely: (1)
the employee must be interested in continuing his work with the group companies;
(2) there must be no criminal charges against him; and (3) he must report for work
on June 2, 1958, otherwise he would be replaced. Since the evidence shows that all
the employees reported back to work at the respondents' head office on June 2, 1953,
they must be considered as having complied with the first and third conditions.
Our point of inquiry should therefore be directed at whether they also complied with
the second condition. It is not denied that when the strikers reported for work on
June 2, 1958, 63 members of the Unions were refused readmission because they had
pending criminal charges. However, despite the fact that they were able to secure
their respective clearances 34 officials and union members were still refused
readmission on the alleged ground that they committed acts inimical to the
Companies. It is beyond dispute, however, that non-strikers who also had criminal
charges pending against them in the fiscal's office, arising from the same incidents
whence the criminal charges against the strikers evolved, were readily readmitted
and were not required to secure clearances. This is a clear act of discrimination
practiced by the Companies in the process of rehiring and is therefore a violation of
sec. 4(a) (4) of the Industrial Peace Act.
The respondents did not merely discriminate against all the strikers in general. They
separated the active from the less active unionists on the basis of their militancy, or
lack of it, on the picket lines. Unionists belonging to the first category were refused
readmission even after they were able to secure clearances from the competent
authorities with respect to the criminal charges filed against them. It is significant to
note in this connection that except for one union official who deserted his union on
the second day of the strike and who later participated in crashing through the picket
lines, not a single union officer was taken back to work. Discrimination undoubtedly
exists where the record shows that the union activity of the rehired strikers has been
less prominent than that of the strikers who were denied reinstatement.
So is there an unfair labor practice where the employer, although
authorized by the Court of Industrial Relations to dismiss the
employees who participated in an illegal strike, dismissed only
the leaders of the strikers, such dismissal being evidence of
discrimination against those dismissed and constituting a waiver
of the employer's right to dismiss the striking employees and a
condonation of the fault committed by them." (Carlos and
Fernando, Labor and Social Legislation, p. 62, citing Phil. Air
Lines, Inc. v. Phil. Air Lines Emloyees Association, L-8197,
Oct. 31, 1958.)
It is noteworthy that perhaps in an anticipatory effort to exculpate themselves
from charges of discrimination in the readmission of strikers returning to work
the respondents delegated the power to readmit to a committee. But the respondent
Olbes had chosen Vicente Abella, chief of the personnel records section, and Ramon
Garcia, assistant corporate secretary, to screen the unionists reporting back to work.
It is not difficult to imagine that these two employees having been involved in
unpleasant incidents with the picketers during the strike were hostile to the
strikers. Needless to say, the mere act of placing in the hands of employees hostile to
the strikers the power of reinstatement, is a form of discrimination in rehiring.
Delayed reinstatement is a form of discrimination in rehiring, as
is having the machinery of reinstatement in the hands of
employees hostile to the strikers, and reinstating a union official
who formerly worked in a unionized plant, to a job in another
mill, which was imperfectly organized. (Morabe, The Law on
Strikes, p. 473, citing Sunshine Mining Co., 7 NLRB 1252;
Cleveland Worsted Mills, 43 NLRB 545; emphasis supplied.)
Equally significant is the fact that while the management and the members of the
screening committee admitted the discrimination committed against the strikers,
they tossed back and around to each other the responsibility for the discrimination.
Thus, Garcia admitted that in exercising for the management the authority to screen
the returning employees, the committee admitted the non-strikers but refused
readmission to the strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella,
chairman of the management's screening committee, while admitting the
discrimination, placed the blame therefor squarely on the management (tsn., Sept.
20, 1960, pp. 7-8, 14-18). But the management, speaking through the respondent
Olbes, head of the Companies, disclaimed responsibility for the discrimination. He
testified that "The decision whether to accept or not an employee was left in the
hands of that committee that had been empowered to look into all cases of the
strikers." (tsn., Sept. 6, 1962, p. 19.)
Of course, the respondents through Ramon Garcia tried to explain the basis for
such discrimination by testifying that strikers whose participation in any alleged
misconduct during the picketing was not serious in nature were readmissible, while
those whose participation was serious were not. (tsn., Aug. 4, 1961, pp. 48-49, 56).
But even this distinction between acts of slight misconduct and acts of serious
misconduct which the respondents contend was the basis for either reinstatement or
discharge, is completely shattered upon a cursory examination of the evidence on
record. For with the exception of Pascual Esquillo whose dismissal sent to the other
strikers cited the alleged commission by them of simple "acts of misconduct."
III. Anent the third assignment of error, the record shows that not a single dismissed
striker was given the opportunity to defend himself against the supposed charges
against him. As earlier mentioned, when the striking employees reported back for
work on June 2, 1958, the respondents refused to readmit them unless they first
secured the necessary clearances; but when all, except three, were able to secure and
subsequently present the required clearances, the respondents still refused to take
them back. Instead, several of them later received letters from the respondents in the
following stereotyped tenor:
This will confirm the termination of your employment with the
Insular Life-FGU Insurance Group as of 2 June 1958.
The termination of your employment was due to the fact that
you committed acts of misconduct while picketing during the
last strike. Because this may not constitute sufficient cause
under the law to terminate your employment without pay, we are
giving you the amount of P1,930.32 corresponding to one-half
month pay for every year of your service in the Group
Company.
Kindly acknowledge receipt of the check we are sending
herewith.
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The respondents,
d however, admitted that the alleged "acts of misconduct" attributed
to theedismissed strikers were the same acts with which the said strikers were
charged
n before the fiscal's office and the courts. But all these charges except three
were tdropped or dismissed.
,
Indeed, the individual cases of dismissed officers and members of the striking
I do not indicate sufficient basis for dismissal.
unions
Emiliano Tabasondra, vice-president of the petitioner FGU Insurance Group
Workers & Employees Association-NATU, was refused reinstatement allegedly
because he did not report for duty on June 2, 1958 and, hence, had abandoned his
office. But the overwhelming evidence adduced at the trial and which the
respondents failed to rebut, negates the respondents' charge that he had abandoned
his job. In his testimony, corroborated by many others, Tabasondra particularly
identified the management men to whom he and his group presented themselves on
June 2, 1958. He mentioned the respondent Olbes' secretary, De Asis, as the one
who received them and later directed them when Olbes refused them an audience
to Felipe Enage, the Companies' personnel manager. He likewise categorically
stated that he and his group went to see Enage as directed by Olbes' secretary. If
Tabasondra were not telling the truth, it would have been an easy matter for the
respondents to produce De Asis and Enage who testified anyway as witnesses for
the respondents on several occasions to rebut his testimony. The respondents did
nothing of the kind. Moreover, Tabasondra called on June 21, 1958 the respondents'
attention to his non-admission and asked them to inform him of the reasons therefor,
but instead of doing so, the respondents dismissed him by their letter dated July 10,
1958. Elementary fairness required that before being dismissed for cause,
Tabasondra be given "his day in court."
At any rate, it has been held that mere failure to report for work after notice to
return, does not constitute abandonment nor bar reinstatement. In one case, the U.S.
Supreme Court held that the taking back of six of eleven men constituted
discrimination although the five strikers who were not reinstated, all of whom were
prominent in the union and in the strike, reported for work at various times during
the next three days, but were told that there were no openings. Said the Court:
... The Board found, and we cannot say that its finding is
unsupported, that, in taking back six union men, the respondent's
officials discriminated against the latter on account of their
union activities and that the excuse given that they did not apply
until after the quota was full was an afterthought and not the true
reason for the discrimination against them. (NLRB v. Mackay
Radio & Telegraph Co., 304 U.S. 333, 58 Sup. Ct. 904, 82 L.
Ed. 1381) (Mathews, Labor Relations and the Law, p. 725, 728)
The respondents' allegation that Tabasondra should have returned after being refused
readmission on June 2, 1958, is not persuasive. When the employer puts off
reinstatement when an employee reports for work at the time agreed, we consider
the employee relieved from the duty of returning further.
Sixto Tongos was dismissed allegedly because he revealed that despite the fact that
the Companies spent more than P80,000 for the vacation trips of officials, they
refused to grant union demands; hence, he betrayed his trust as an auditor of the
Companies. We do not find this allegation convincing. First, this accusation was
emphatically denied by Tongos on the witness stand. Gonzales, president of one of
the respondent Companies and one of the officials referred to, took a trip abroad in
1958. Exchange controls were then in force, and an outgoing traveller on a
combined business and vacation trip was allowed by the Central Bank, per its
Circular 52 (Notification to Authorized Agent Banks) dated May 9, 1952, an
allocation of $1,000 or only P2,000, at the official rate of two pesos to the dollar, as
pocket money; hence, this was the only amount that would appear on the books of
the Companies. It was only on January 21, 1962, per its Circular 133 (Notification to
Authorized Agent Banks), that the Central Bank lifted the exchange controls.
Tongos could not therefore have revealed an amount bigger than the above sum.
And his competence in figures could not be doubted considering that he had passed
the board examinations for certified public accountants. But assuming arguendo that
Tongos indeed revealed the true expenses of Gonzales' trip which the respondents
never denied or tried to
disprove his statements clearly fall within the sphere of a unionist's right to
discuss and advertise the facts involved in a labor dispute, in accordance with
section 9(a)(5) of Republic Act 875 which guarantees the untramelled exercise by
striking employees of the right to give "publicity to the existence of, or the fact
involved in any labor dispute, whether by advertising, speaking, patrolling or by any
method not involving fraud or violence." Indeed, it is not only the right, it is as well
the duty, of every unionist to advertise the facts of a dispute for the purpose of
informing all those affected thereby. In labor disputes, the combatants are expected
to expose the truth before the public to justify their respective demands. Being a
union man and one of the strikers, Tongos was expected to reveal the whole truth on
whether or not the respondent Companies were justified in refusing to accede to
union demands. After all, not being one of the supervisors, he was not a part of
management. And his statement, if indeed made, is but an expression of free speech
protected by the Constitution.
Free speech on both sides and for every faction on any side of
the labor relation is to me a constitutional and useful right.
Labor is free ... to turn its publicity on any labor oppression,
substandard wages, employer unfairness, or objectionable
working conditions. The employer, too, should be free to answer
and to turn publicity on the records of the leaders of the unions
which seek the confidence of his men ... (Concurring opinion of
Justice Jackson in Thomas v. Collins, 323 U.S. 516, 547, 65
Sup. Ct. 315, 89 L. Ed. 430.) (Mathews, Labor Relations and the
Law, p. 591.)
The respondents also allege that in revealing certain confidential information,
Tongos committed not only a betrayal of trust but also a violation of the moral
principles and ethics of accountancy. But nowhere in the Code of Ethics for
Certified Public Accountants under the Revised Rules and Regulations of the Board
of Accountancy formulated in 1954, is this stated. Moreover, the relationship of the
Companies with Tongos was that of an employer and not a client. And with regard
to the testimonies of Juan Raymundo and Antolin Carillo, both vice-presidents of the
Trust Insurance Agencies, Inc. about the alleged utterances made by Tongos, the
lower court should not have given them much weight. The firm of these witnesses
was newly established at that time and was still a "general agency" of the
Companies. It is not therefore amiss to conclude that they were more inclined to
favor the respondents rather than Tongos.
Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Dao, Vicente Alsol and
Hermenigildo Ramirez, opined the lower court, were constructively dismissed by
non-readmission allegedly because they not only prevented Ramon Garcia, assistant
corporate secretary, and Vicente Abella, chief of the personnel records section of the
Companies, from entering the Companies' premises on May 21, 1958, but they also
caused bruises and abrasions on Garcia's chest and forehead acts considered
inimical to the interest of the respondents. The Unions, upon the other hand, insist
that there is complete lack of evidence that Ner took part in pushing Garcia; that it
was Garcia who elbowed his way through the picket lines and therefore Ner shouted
"Close up," which the picketers did; and that Garcia tossed Paulino Bugay's placard
and a fight ensued between them in which both suffered injuries. But despite these
conflicting versions of what actually happened on May 21, 1958, there are grounds
to believe that the picketers are not responsible for what happened.lwph1.t The
picketing on May 21, 1958, as reported in the police blotter, was peaceful (see
Police blotter report, exh. 3 in CA-G.R. No. 25991-R of the Court of Appeals, where
Ner was acquitted). Moreover, although the Companies during the strike were
holding offices at the Botica Boie building at Escolta, Manila; Tuason Building at
San Vicente Street, Manila; and Ayala, Inc. offices at Makati, Rizal, Garcia, the
assistant corporate secretary, and Abella, the chief of the personnel records section,
reported for work at the Insular Life Building. There is therefore a reasonable
suggestion that they were sent to work at the latter building to create such an
incident and have a basis for filing criminal charges against the petitioners in the
fiscal's office and applying for injunction from the court of first instance. Besides,
under the circumstances the picketers were not legally bound to yield their grounds
and withdraw from the picket lines. Being where the law expects them to be in the
legitimate exercise of their rights, they had every reason to defend themselves and
their rights from any assault or unlawful transgression. Yet the police blotter, about
adverted to, attests that they did not resort to violence.
The heated altercations and occasional blows exchanged on the picket line do not
affect or diminish the right to strike. Persuasive on this point is the following
commentary: .
We think it must be conceded that some disorder is
unfortunately quite usual in any extensive or long drawn out
strike. A strike is essentially a battle waged with economic
weapons. Engaged in it are human beings whose feelings are
stirred to the depths. Rising passions call forth hot words. Hot
words lead to blows on the picket line. The transformation from
economic to physical combat by those engaged in the contest is
difficult to prevent even when cool heads direct the fight.
Violence of this nature, however much it is to be regretted, must
have been in the contemplation of the Congress when it
provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing
therein should be construed so as to interfere with or impede or
diminish in any way the right to strike. If this were not so, the
rights afforded to employees by the Act would indeed be
illusory. We accordingly recently held that it was not intended
by the Act that minor disorders of this nature would deprive a
striker of the possibility of reinstatement. (Republic Steel Corp.
v. N. L. R. B., 107 F2d 472, cited in Mathews, Labor Relations
and the Law, p. 378)
Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a
necessary incident of the strike and should not be considered as a bar to
reinstatement. Thus it has been held that:
Fist-fighting between union and non-union employees in the midst of a strike is no
bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Vol. II, p.
855 citing Stackpole Carbon, Co. 6 NLRB 171, enforced 105 F2d 167.)
Furthermore, assuming that the acts committed by the strikers were transgressions of
law, they amount only to mere ordinary misdemeanors and are not a bar to
reinstatement.
In cases involving misdemeanors the board has generally held that unlawful acts are
not bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Id., p.
854, citing Ford Motor Company, 23 NLRB No. 28.)
Finally, it is not disputed that despite the pendency of criminal charges against non-
striking employees before the fiscal's office, they were readily admitted, but those
strikers who had pending charges in the same office were refused readmission. The
reinstatement of the strikers is thus in order.
[W]here the misconduct, whether in reinstating persons equally
guilty with those whose reinstatement is opposed, or in other
 ways, gives rise to the inference that union activities rather than
misconduct is the basis of his [employer] objection, the Board
has usually required reinstatement." (Teller, supra, p.
853, citing the Third Annual Report of NLRB [1938], p. 211.)
Lastly, the lower Court justified the constructive dismissal of Florencio Ibarra
allegedly because he committed acts inimical to the interest of the respondents
when, as president of the FGU Workers and Employees Association-NATU, he
advised the strikers that they could use force and violence to have a successful
picket and that picketing was precisely intended to prevent the non-strikers and
company clients and customers from entering the Companies' buildings. Even if this
were true, the record discloses that the picket line had been generally peaceful, and
that incidents happened only when management men made incursions into and tried
to break the picket line. At any rate, with or without the advice of Ibarra, picketing is
inherently explosive. For, as pointed out by one author, "The picket line is an
explosive front, charged with the emotions and fierce loyalties of the union-
management dispute. It may be marked by colorful name-calling, intimidating
threats or sporadic fights between the pickets and those who pass the line."
(Mathews, Labor Relations and the Law, p. 752). The picket line being the natural
result of the respondents' unfair labor practice, Ibarra's misconduct is at most a
misdemeanor which is not a bar to reinstatement. Besides, the only evidence
presented by the Companies regarding Ibarra's participation in the strike was the
testimony of one Rodolfo Encarnacion, a former member of the board of directors of
the petitioner FGU Insurance Group Workers and Employees Union-NATU, who
became a "turncoat" and who likewise testified as to the union activities of Atty.
Lacsina, Ricardo Villaruel and others (annex C, Decision, p. 27) another matter
which emphasizes the respondents' unfair labor practice. For under the
circumstances, there is good ground to believe that Encarnacion was made to spy on
the actvities of the union members. This act of the respondents is considered
unjustifiable interference in the union activities of the petitioners and is unfair labor
practice.
It has been held in a great number of decisions at espionage by
an employer of union activities, or surveillance thereof, are such
instances of interference, restraint or coercion of employees in
connection with their right to organize, form and join unions as
to constitute unfair labor practice.
... "Nothing is more calculated to interfere with, restrain and
coerce employees in the exercise of their right to self-
organization than such activity even where no discharges result.
The information obtained by means of espionage is in valuable
to the employer and can be used in a variety of cases to break a
union." The unfair labor practice is committed whether the
espionage is carried on by a professional labor spy or detective,
by officials or supervisory employees of the employer, or by
fellow employees acting at the request or direction of the
employer, or an ex-employee..." (Teller, Labor Disputes and
Collective Bargaining, Vol. II, pp. 765-766, and cases cited.) .
IV. The lower court should have ordered the reinstatement of the officials and
members of the Unions, with full back wages from June 2, 1958 to the date of their
actual reinstatement to their usual employment. Because all too clear from the
factual and environmental milieu of this case, coupled with settled decisional law, is
that the Unions went on strike because of the unfair labor practices committed by the
respondents, and that when the strikers reported back for work upon the
invitation of the respondents they were discriminatorily dismissed. The members
and officials of the Unions therefore are entitled to reinstatement with back pay.
[W]here the strike was induced and provoked by improper
conduct on the part of an employer amounting to an 'unfair labor
practice,' the strikers are entitled to reinstatement with back pay.
(Rothenberg on Labor Relations, p. 418.)
[A]n employee who has been dismissed in violation of the
provisions of the Act is entitled to reinstatement with back pay
upon an adjudication that the discharge was illegal."
(Id., citing Waterman S. S. Corp. v. N. L. R. B., 119 F2d 760; N.
L. R. B. v. Richter's Bakery, 140 F2d 870; N. L. R. B. v.
Southern Wood Preserving Co., 135 F. 2d 606; C. G. Conn, Ltd.
v. N. L. R. B., 108 F2d 390; N. L. R. B. v. American Mfg. Co.,
106 F2d 61; N. L. R. B. v. Kentucky Fire Brick Co., 99 F2d 99.)
And it is not a defense to reinstatement for the respondents to allege that the
positions of these union members have already been filled by replacements.
[W]here the employers' "unfair labor practice" caused or
contributed to the strike or where the 'lock-out' by the employer
constitutes an "unfair labor practice," the employer cannot
successfully urge as a defense that the striking or lock-out
employees position has been filled by replacement. Under such
circumstances, if no job sufficiently and satisfactorily
comparable to that previously held by the aggrieved employee
can be found, the employer must discharge the replacement
employee, if necessary, to restore the striking or locked-out
worker to his old or comparable position ... If the employer's
improper conduct was an initial cause of the strike, all the
 strikers are entitled to reinstatement and the dismissal of
replacement employees wherever necessary; ... . (Id., p. 422 and
cases cited.)
A corollary issue to which we now address ourselves is, from what date should the
backpay payable to the unionists be computed? It is now a settled doctrine that
strikers who are entitled to reinstatement are not entitled to back pay during the
period of the strike, even though it is caused by an unfair labor practice. However, if
they offer to return to work under the same conditions just before the strike, the
refusal to re-employ or the imposition of conditions amounting to unfair labor
practice is a violation of section 4(a) (4) of the Industrial Peace Act and the
employer is liable for backpay from the date of the offer (Cromwell Commercial
Employees and Laborers Union vs. Court of Industrial Relations, L-19778,
Decision, Sept. 30, 1964, 12 SCRA 124; Id., Resolution on motion for
reconsideration, 13 SCRA 258; see also Mathews, Labor Relations and the Law, p.
730 and the cited cases). We have likewise ruled that discriminatorily dismissed
employees must receive backpay from the date of the act of discrimination, that is,
from the date of their discharge (Cromwell Commercial Employees and Laborers
Union vs. Court of Industrial Relations, supra).
The respondents notified the petitioner strikers to report back for work on June 2,
1958, which the latter did. A great number of them, however, were refused
readmission because they had criminal charges against them pending before the
fiscal's office, although non-strikers who were also facing criminal indictments were
readily readmitted. These strikers who were refused readmission on June 2, 1958
can thus be categorized as discriminatorily dismissed employees and are entitled to
backpay from said date. This is true even with respect to the petitioners Jose Pilapil,
Paulino Bugay, Jr. and Jose Garcia, Jr. who were found guilty only of misdemeanors
which are not considered sufficient to bar reinstatement (Teller, Labor Disputes and
Collective Bargaining, p. 854), especially so because their unlawful acts arose
during incidents which were provoked by the respondents' men. However, since the
employees who were denied readmission have been out of the service of the
Companies (for more than ten years) during which they may have found other
employment or other means of livelihood, it is only just and equitable that whatever
they may have earned during that period should be deducted from their back wages
to mitigate somewhat the liability of the company, pursuant to the equitable
principle that no one is allowed to enrich himself at the expense of another (Macleod
& Co. of the Philippines v. Progressive Federation of Labor, 97 Phil. 205 [1955]).
The lower court gave inordinate significance to the payment to and acceptance by
the dismissed employees of separation pay. This Court has ruled that while
employers may be authorized under Republic Act 1052 to terminate employment of
employees by serving the required notice, or, in the absence thereof, by paying the
required compensation, the said Act may not be invoked to justify a dismissal
prohibited by law, e.g., dismissal for union activities.
... While Republic Act No. 1052 authorizes a commercial
establishment to terminate the employment of its employee by
serving notice on him one month in advance, or, in the absence
thereof, by paying him one month compensation from the date
of the termination of his employment, such Act does not give to
the employer a blanket authority to terminate the employment
regardless of the cause or purpose behind such termination.
Certainly, it cannot be made use of as a cloak to circumvent a
final order of the court or a scheme to trample upon the right of
an employee who has been the victim of an unfair labor practice.
(Yu Ki Lam, et al. v. Nena Micaller, et al., 99 Phil. 904 [1956].)
Finally, we do not share the respondents' view that the findings of fact of the Court
of Industrial Relations are supported by substantial and credible proof. This Court is
not therefore precluded from digging deeper into the factual milieu of the case
(Union of Philippine Education Employees v. Philippine Education Company, 91
Phil. 93; Lu Do & Lu Ym Corporation v. Philippine-Land-Air-Sea Labor Union, 11
SCRA 134 [1964]).
V. The petitioners (15 of them) ask this Court to cite for contempt the respondent
Presiding Judge Arsenio Martinez of the Court of Industrial Relations and the
counsels for the private respondents, on the ground that the former wrote the
following in his decision subject of the instant petition for certiorari, while the latter
quoted the same on pages 90-91 of the respondents' brief: .
... Says the Supreme Court in the following decisions:
In a proceeding for unfair labor practice,
involving a determination as to whether or
not the acts of the employees concerned
justified the adoption of the employer of
disciplinary measures against them, the mere
fact that the employees may be able to put
up a valid defense in a criminal prosecution
for the same acts, does not erase or
neutralize the employer's right to impose
discipline on said employees. For it is
settled that not even the acquittal of an
employee of the criminal charge against him
is a bar to the employer's right to impose
 discipline on its employees, should the act
upon which the criminal charged was based
constitute nevertheless an activity inimical
to the employer's interest... The act of the
employees now under consideration may be
considered as a misconduct which is a just
cause for dismissal. (Lopez, Sr., et al. vs.
Chronicle Publication Employees Ass'n. et
al., G.R. No. L-20179-81, December 28,
1964.) (emphasis supplied)
The two pertinent paragraphs in the above-cited decision * which contained the
underscored portions of the above citation read however as follows:
Differently as regard the dismissal of Orlando Aquino and
Carmelito Vicente, we are inclined to uphold the action taken by
the employer as proper disciplinary measure. A reading of the
article which allegedly caused their dismissal reveals that it
really contains an insinuation albeit subtly of the supposed
exertion of political pressure by the Manila Chronicle
management upon the City Fiscal's Office, resulting in the non-
filing of the case against the employer. In rejecting the
employer's theory that the dismissal of Vicente and Aquino was
justified, the lower court considered the article as "a report of
some acts and omissions of an Assistant Fiscal in the exercise of
his official functions" and, therefore, does away with the
presumption of malice. This being a proceeding for unfair labor
practice, the matter should not have been viewed or gauged in
the light of the doctrine on a publisher's culpability under the
Penal Code. We are not here to determine whether the
employees' act could stand criminal prosecution, but only to find
out whether the aforesaid act justifies the adoption by the
employer of disciplinary measure against them. This is not
sustaining the ruling that the publication in question is qualified
privileged, but even on the assumption that this is so, the
exempting character thereof under the Penal Code does not
necessarily erase or neutralize its effect on the employer's
interest which may warrant employment of disciplinary
measure. For it must be remembered that not even the acquittal
of an employee, of the criminal charges against him, is a bar to
the employer's right to impose discipline on its employees,
should the act upon which the criminal charges was based
constitute nevertheless an activity inimical to the employer's
interest.
In the herein case, it appears to us that for an employee to
publish his "suspicion," which actually amounts to a public
accusation, that his employer is exerting political pressure on a
public official to thwart some legitimate activities on the
employees, which charge, in the least, would sully the
employer's reputation, can be nothing but an act inimical to the
said employer's interest. And the fact that the same was made in
the union newspaper does not alter its deleterious character nor
shield or protect a reprehensible act on the ground that it is a
union activity, because such end can be achieved without resort
to improper conduct or behavior. The act of the employees now
under consideration may be considered as a misconduct which
is a just cause for dismissal.** (Emphasis ours)
It is plain to the naked eye that the 60 un-underscored words of the paragraph quoted
by the respondent Judge do not appear in the pertinent paragraph of this Court's
decision in L-20179-81. Moreover, the first underscored sentence in the quoted
paragraph starts with "For it is settled ..." whereas it reads, "For it must be
remembered ...," in this Court's decision. Finally, the second and last underlined
sentence in the quoted paragraph of the respondent Judge's decision, appears not in
the same paragraph of this Court's decision where the other sentence is, but in the
immediately succeeding paragraph.
This apparent error, however, does not seem to warrant an indictment for contempt
against the respondent Judge and the respondents' counsels. We are inclined to
believe that the misquotation is more a result of clerical ineptitude than a deliberate
attempt on the part of the respondent Judge to mislead. We fully realize how saddled
with many pending cases are the courts of the land, and it is not difficult to imagine
that because of the pressure of their varied and multifarious work, clerical errors
may escape their notice. Upon the other hand, the respondents' counsels have
the prima facie right to rely on the quotation as it appears in the respondent Judge's
decision, to copy it verbatim, and to incorporate it in their brief. Anyway, the import
of the underscored sentences of the quotation in the respondent Judge's decision is
substantially the same as, and faithfully reflects, the particular ruling in this Court's
decision, i.e., that "[N]ot even the acquittal of an employee, of the criminal charges
against him, is a bar to the employer's right to impose discipline on its employees,
should the act upon which the criminal charges were based constitute nevertheless
an activity inimical to the employer's interest."
Be that as it may, we must articulate our firm view that in citing this Court's
decisions and rulings, it is the bounden duty of courts, judges and lawyers to
reproduce or copy the same word-for-word and punctuation mark-for-punctuation
mark. Indeed, there is a salient and salutary reason why they should do this. Only
from this Tribunal's decisions and rulings do all other courts, as well as lawyers and
litigants, take their bearings. This is because the decisions referred to in article 8 of
the Civil Code which reads, "Judicial decisions applying or interpreting the laws or
the Constitution shall form a part of the legal system of the Philippines," are only
those enunciated by this Court of last resort. We said in no uncertain terms
in Miranda, et al. vs. Imperial, et al. (77 Phil. 1066) that "[O]nly the decisions of
this Honorable Court establish jurisprudence or doctrines in this jurisdiction." Thus,
ever present is the danger that if not faithfully and exactly quoted, the decisions and
rulings of this Court may lose their proper and correct meaning, to the detriment of
other courts, lawyers and the public who may thereby be misled. But if inferior
courts and members of the bar meticulously discharge their duty to check and
recheck their citations of authorities culled not only from this Court's decisions but
from other sources and make certain that they are verbatim reproductions down to
the last word and punctuation mark, appellate courts will be precluded from acting
on misinformation, as well as be saved precious time in finding out whether the
citations are correct.
On 23 February 2004, private complainants AAA[1] and BBB filed a
Motion for Reinvestigation asking Judge Bay to order the City Prosecutor of Quezon
City to study if the proper Informations had been filed against petitioners and their
co-accused. Judge Bay granted the Motion and ordered a reinvestigation of the
cases.
On 19 May 2004, petitioners filed their Joint Memorandum to Dismiss the
Case[s] before the City Prosecutor. They claimed that there was no probable cause
to hold them liable for the crimes charged.
On 10 August 2004, the Office of the City Prosecutor issued a Resolution
on the reinvestigation affirming the Informations filed against petitioners and their
co-accused in Criminal Cases No. Q-03-123284-86. The Resolution was signed by
Assistant City Prosecutor Raniel S. Cruz and approved by City Prosecutor Claro A.
Arellano.

Happily for the respondent Judge and the respondents' counsels, there was no On 3 March 2006, 2nd Assistant City Prosecutor Lamberto C. de Vera,
substantial change in the thrust of this Court's particular ruling which they cited. It is treating the Joint Memorandum to Dismiss the Case as an appeal of the 10 August
our view, nonetheless, that for their mistake, they should be, as they are hereby, 2004 Resolution, reversed the Resolution dated 10 August 2004, holding that there
admonished to be more careful when citing jurisprudence in the future. was lack of probable cause. On the same date, the City Prosecutor filed a Motion to
ACCORDINGLY, the decision of the Court of Industrial Relations dated August 17, Withdraw Informations before Judge Bay.
1965 is reversed and set aside, and another is entered, ordering the respondents to
reinstate the dismissed members of the petitioning Unions to their former or On 2 October 2006, Judge Bay denied the Motion to Withdraw
comparatively similar positions, with backwages from June 2, 1958 up to the dates Informations in an Order of even date.
of their actual reinstatements. Costs against the respondents.
Without moving for a reconsideration of the above assailed Order,
petitioners filed the present Petition for Mandamus, bringing forth this lone issue for
our consideration:
Hipos Sr v Bay
This is a Petition for Mandamus under Rule 65 of the Rules of Court CAN THE HON. SUPREME COURT
seeking a reversal of the Order dated 2 October 2006 of respondent Judge Teodoro COMPEL RESPONDENT JUDGE BAY TO DISMISS THE
A. Bay of Branch 86 of the Regional Trial Court (RTC) of Quezon City, which CASE THROUGH A WRIT OF MANDAMUS BY VIRTUE
denied the Motion to Withdraw Informations of the Office of the City Prosecutor of OF THE RESOLUTION OF THE OFFICE OF THE CITY
Quezon City. PROSECUTOR OF QUEZON CITY FINDING NO
PROBABLE CAUSE AGAINST THE ACCUSED AND
The facts of the case are as follows. SUBSEQUENTLY FILING A MOTION TO WITHDRAW
INFORMATION?[2]
On 15 December 2003, two Informations for the crime of rape and one
Information for the crime of acts of lasciviousness were filed against petitioners
Darryl Hipos, Jaycee Corsio, Arthur Villaruel and two others before Branch 86 of Mandamus is an extraordinary writ commanding a tribunal, corporation,
the Regional Trial Court of Quezon City, acting as a Family Court, presided by board, officer or person, immediately or at some other specified time, to do the act
respondent Judge Bay. The cases were docketed as Criminal Cases No. Q-03- required to be done, when the respondent unlawfully neglects the performance of an
123284, No. Q-03-123285 and No. Q-03-123286. The Informations were signed by act which the law specifically enjoins as a duty resulting from an office, trust, or
Assistant City Prosecutor Ronald C. Torralba. station; or when the respondent excludes another from the use and enjoyment of a
right or office to which the latter is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law.[3]
As an extraordinary writ, the remedy of mandamus lies only to compel an
officer to perform a ministerial duty, not a discretionary one; mandamus will not
issue to control the exercise of discretion by a public officer where the law imposes
upon him the duty to exercise his judgment in reference to any manner in which he
is required to act, because it is his judgment that is to be exercised and not that of the
court.[4]
In the case at bar, the act which petitioners pray that we compel the trial
court to do is to grant the Office of the City Prosecutors Motion for Withdrawal of
Informations against petitioners. In effect, petitioners seek to curb Judge Bays
exercise of judicial discretion.
There is indeed an exception to the rule that matters involving judgment
and discretion are beyond the reach of a writ of mandamus, for such writ may be
issued to compel action in those matters, when refused.[5]However, mandamus is
never available to direct the exercise of judgment or discretion in a particular
way or the retraction or reversal of an action already taken in the exercise of
either.[6] In other words, while a judge refusing to act on a Motion to Withdraw
Informations can be compelled by mandamus to act on the same, he cannot be
compelled to act in a certain way, i.e., to grant or deny such Motion. In the case at
bar, Judge Bay did not refuse to act on the Motion to Withdraw Informations; he had
already acted on it by denying the same. Accordingly, mandamus is not available
anymore. If petitioners believed that Judge Baycommitted grave abuse of discretion
in the issuance of such Order denying the Motion to Withdraw Informations, the
proper remedy of petitioners should have been to file a Petition
for Certiorari against the assailed Order of Judge Bay.
Petitioners counter that the above conclusion, which has been argued by
the Solicitor General, is contrary to a ruling of this Court, which allegedly states that
the proper remedy in such cases is a Petition for Mandamus and
not Certiorari. Petitioners cite the following excerpt from our ruling in Sanchez v.
Demetriou[7]:
The appreciation of the evidence involves the use of discretion
on the part of the prosecutor, and we do not find in the case at
bar a clear showing by the petitioner of a grave abuse of such
discretion.
The decision of the prosecutor may be reversed or
modified by the Secretary of Justice or in special cases by the
President of the Philippines. But even this Court cannot order
the prosecution of a person against whom the prosecutor
does not find sufficient evidence to support at least a prima
facie case. The courts try and absolve or convict the accused but
as a rule have no part in the initial decision to prosecute him.
The possible exception is where there is an
unmistakable showing of grave abuse of discretion that will
justify a judicial intrusion into the precincts of the
executive. But in such a case the proper remedy to call for
such exception is a petition
for mandamus, not certiorari or prohibition.[8] (Emphases
supplied.)
Petitioners have taken the above passage way out of its context. In the case
of Sanchez, Calauan Mayor Antonio Sanchez brought a Petition
for Certiorari before this Court, challenging the order of the respondent Judge
therein denying his motion to quash the Information filed against him and six other
persons for alleged rape and homicide. One of the arguments of Mayor Sanchez was
that there was discrimination against him because of the non-inclusion of two other
persons in the Information. We held that even this Court cannot order the
prosecution of a person against whom the prosecutor does not find sufficient
evidence to support at least a prima facie case. However, if there was an
unmistakable showing of grave abuse of discretion on the part of the prosecutors in
that case, Mayor Sanchez should have filed a Petition for Mandamus to compel the
filing of charges against said two other persons.
In the case at bar, the Petition for Mandamus is directed not against the
prosecution, but against the trial court, seeking to compel the trial court to grant the
Motion to Withdraw Informations by the City Prosecutors Office. The prosecution
has already filed a case against petitioners. Recently, in Santos v. Orda, Jr.,[9] we
reiterated the doctrine we established in the leading case of Crespo v. Mogul,[10] that
once a criminal complaint or an information is filed in court, any disposition or
dismissal of the case or acquittal or conviction of the accused rests within the
jurisdiction, competence, and discretion of the trial court. Thus, we held:
In Crespo v. Mogul, the Court held that once a
criminal complaint or information is filed in court, any
disposition of the case or dismissal or acquittal or conviction of
the accused rests within the exclusive jurisdiction, competence,
and discretion of the trial court. The trial court is the best and
sole judge on what to do with the case before it. A motion to
dismiss the case filed by the public prosecutor should be
addressed to the court who has the option to grant or deny the
same. Contrary to the contention of the petitioner, the rule
applies to a motion to withdraw the Information or to dismiss the
 case even before or after arraignment of the accused. The only
qualification is that the action of the court must not impair the
substantial rights of the accused or the right of the People or the
private complainant to due process of law. When the trial court
grants a motion of the public prosecutor to dismiss the case, or
to quash the Information, or to withdraw the Information in
compliance with the directive of the Secretary of Justice, or to
deny the said motion, it does so not out of subservience to or
defiance of the directive of the Secretary of Justice but in sound
exercise of its judicial prerogative.
Petitioners also claim that since Judge Bay granted a Motion for
Reinvestigation, he should have deferred to the Resolution of Asst. City Prosecutor
De Vera withdrawing the case.[11] Petitioners cite the following portion of our
Decision in People v. Montesa, Jr.[12]:
In the instant case, the respondent Judge granted the
motion for reinvestigation and directed the Office of the
Provincial Prosecutor of Bulacan to conduct the
reinvestigation. The former was, therefore, deemed to have
deferred to the authority of the prosecution arm of the
Government to consider the so-called new relevant and material
evidence and determine whether the information it had filed
should stand.[13]
Like what was done to our ruling in Sanchez, petitioners took specific
statements from our Decision, carefully cutting off the portions which would expose
the real import of our pronouncements. The Petition for Certiorari in Montesa,
Jr. was directed against a judge who, after granting the Petition for Reinvestigation
filed by the accused, proceeded nonetheless to arraign the accused; and, shortly
thereafter, the judge decided to dismiss the case on the basis of a Resolution of the
Assistant Provincial Prosecutor recommending the dismissal of the case. The
dismissal of the case in Montesa, Jr. was done despite the disapproval of the
Assistant Provincial Prosecutors Resolution by the Provincial Prosecutor (annotated
in the same Resolution), and despite the fact that the reinvestigation the latter
ordered was still ongoing, since the Resolution of the Assistant Provincial
Prosecutor had not yet attained finality. We held that the judge should
have waited for the conclusion of the Petition for Reinvestigation he ordered, before
acting on whether or not the case should be dismissed for lack of probable cause,
and before proceeding with the arraignment. Thus, the continuation of the above
paragraph of our Decision in Montesa, Jr. reads:
Having done so, it behooved the respondent Judge to wait for a
final resolution of the incident. In Marcelo vs. Court of Appeals,
this Court ruled:
Accordingly, we rule that the trial
court in a criminal case which takes
cognizance of an accused's motion for
review of the resolution of the investigating
prosecutor or for reinvestigation and defers
the arraignment until resolution of the said
motion must act on the resolution reversing
the investigating prosecutor's finding or on a
motion to dismiss based thereon only upon
proof that such resolution is already final in
that no appeal was taken thereon to the
Department of Justice.
The resolution of Assistant Provincial Prosecutor
Rutor recommending the dismissal of the case never became
final, for it was not approved by the Provincial Prosecutor. On
the contrary, the latter disapproved it. As a consequence, the
final resolution with respect to the reinvestigation is that of the
Provincial Prosecutor, for under Section 4, Rule 112 of the
Rules of Court, no complaint or information may be filed or
dismissed by an investigating fiscal without the prior written
authority or approval of the provincial or city fiscal or chief state
prosecutor. Also, under Section l(d) of R.A. No. 5180, as
amended by P.D. No. 77 and P.D. No. 911. [14]
As can be clearly seen, the statement quoted by petitioners from Montesa,
Jr. is not meant to establish a doctrine that the judge should just follow the
determination by the prosecutor of whether or not there is probable cause. On the
contrary, Montesa, Jr. states:
The rule is settled that once a criminal complaint or
information is filed in court, any disposition thereof, such as its
dismissal or the conviction or acquittal of the accused, rests in
the sound discretion of the court. While the prosecutor retains
the discretion and control of the prosecution of the case, he
cannot impose his opinion on the court. The court is the best and
sole judge on what to do with the case. Accordingly, a motion to
dismiss the case filed by the prosecutor before or after the
arraignment, or after a reinvestigation, or upon instructions of
the Secretary of Justice who reviewed the records upon
 reinvestigation, should be addressed to the discretion of the
court. The action of the court must not, however, impair the
substantial rights of the accused or the right of the People to due
process of law.[15]
In a seemingly desperate attempt on the part of petitioners counsel, he tries
to convince us that a judge is allowed to deny a Motion to Withdraw Informations
from the prosecution only when there is grave abuse of discretion on the part of the
prosecutors moving for such withdrawal; and that, where there is no grave abuse of
discretion on the part of the prosecutors, the denial of the Motion to Withdraw
Informations is void.Petitioners counsel states in the Memorandum:
6.10. Furthermore, the ORDER dated October 2,
2006 of the Respondent Judge BAY consisting of 9 pages which
was attached to the URGENT PETITION did not point out any
iota of grave abuse of discretion committed by Asst. City
Prosecutor De Vera in issuing his Resolution in favor of the sons
of the Petitioners.Hence, the ORDER issued by RJBAY is
NULL and VOID in view of the recent ruling of the Hon.
Supreme Court in Ledesma vs. Court of Appeals, G.R. No.
113216, September 5, 1997, 86 SCAD 695, 278 SCRA 657
which states that:
In the absence of a finding of
grave abuse of discretion, the courts bare
denial of a motion to withdraw information
pursuant to the Secretarys resolution is
void. (Underscoring ours).
6.11. It is therefore respectfully submitted that the
Hon. Supreme Court disregard the argument of the OSG because
of its falsity.[16]
This statement of petitioners counsel is utterly misleading. There is no
such statement in our Decision in Ledesma.[17] The excerpt from Ledesma, which
appears to have a resemblance to the statement allegedly quoted from said case,
provides:
No Grave Abuse of
Discretion in the
Resolution of the
Secretary of Justice
In the light of recent holdings
in Marcelo and Martinez; and considering that the issue of the
correctness of the justice secretary's resolution has been amply
threshed out in petitioner's letter, the information, the resolution
of the secretary of justice, the motion to dismiss, and even the
exhaustive discussion in the motion for reconsideration - all of
which were submitted to the court - the trial judge committed
grave abuse of discretion when it denied the motion to
withdraw the information, based solely on his bare and
ambiguous reliance on Crespo. The trial court's order is
inconsistent with our repetitive calls for an independent and
competent assessment of the issue(s) presented in the motion
to dismiss. The trial judge was tasked to evaluate the secretary's
recommendation finding the absence of probable cause to hold
petitioner criminally liable for libel. He failed to do so. He
merely ruled to proceed with the trial without stating his reasons
for disregarding the secretary's recommendation.[18] (Emphasis
supplied.)
It very much appears that the counsel of petitioners is purposely
misleading this Court, in violation of Rule 10.02 of the Code of Professional
Responsibility, which provides:
Rule 10.02 A lawyer shall not knowingly misquote or
misrepresent the contents of a paper, the language or the
argument of opposing counsel, or the text of a decision or
authority, or knowingly cite as law a provision already rendered
inoperative by repel or amendment, or assert as a fact that which
has not been proved.
Counsels use of block quotation and quotation marks signifies that he intends to
make it appear that the passages are the exact words of the Court. Furthermore,
putting the words Underscoring ours after the text implies that, except for the
underscoring, the text is a faithful reproduction of the original. Accordingly, we are
ordering Atty. Procopio S. Beltran, Jr. to show cause why he should not be
disciplined as a member of the Bar.
To clarify, we never stated in Ledesma that a judge is allowed to deny a
Motion to Withdraw Information from the prosecution only when there is grave
abuse of discretion on the part of the prosecutors moving for such
withdrawal. Neither did we rule therein that where there is no grave abuse of
discretion on the part of the prosecutors, the denial of the Motion to Withdraw
Information is void. What we held therein is that a trial judge commits grave abuse
of discretion if he denies a Motion to Withdraw Information without an independent
and complete assessment of the issues presented in such Motion. Thus, the opening
paragraph of Ledesma states:
When confronted with a motion to withdraw an
information on the ground of lack of probable cause based on a
resolution of the secretary of justice, the bounden duty of the
trial court is to make an independent assessment of the
merits of such motion. Having acquired jurisdiction over the
case, the trial court is not bound by such resolution but is
required to evaluate it before proceeding further with the trial.
While the secretary's ruling is persuasive, it is not binding on
courts. A trial court, however, commits reversible error or
even grave abuse of discretion if it refuses/neglects to
evaluate such recommendation and simply insists on
proceeding with the trial on the mere pretext of having
already acquired jurisdiction over the criminal
action.[19](Emphases supplied.)
Petitioners also try to capitalize on the fact that the dispositive portion of
the assailed Order apparently states that there was no probable cause against
petitioners:
WHEREFORE, finding no probable cause against the
herein accused for the crimes of rapes and acts of lasciviousness,
the motion to withdraw informations is DENIED.
Let the case be set for arraignment and pre-trial
on October 24, 2006 at 8:30 oclock in the
morning.[20](Underscoring ours.)
Thus, petitioners claim that since even the respondent judge himself found
no probable cause against them, the Motion to Withdraw Informations by the Office
of the City Prosecutor should be granted.[21]
Even a cursory reading of the assailed Order, however, clearly shows that
the insertion of the word no in the above dispositive portion was a mere clerical
error. The assailed Order states in full:
After a careful study of the sworn statements of the
complainants and the resolution dated March 3, 2006 of
2nd Assistant City Prosecutor Lamberto C. de Vera, the Court
finds that there was probable cause against the herein
accused. The actuations of the complainants after the alleged
rapes and acts of lasciviousness cannot be the basis of dismissal
or withdrawal of the herein cases. Failure to shout or offer
tenatious resistance did not make voluntary the complainants
submission to the criminal acts of the accused (People v.
Velasquez, 377 SCRA 214, 2002). The complainants affidavits
indicate that the accused helped one another in committing the
acts complained of. Considering that the attackers were not
strangers but their trusted classmates who enticed them to go to
the house where they were molested, the complainants cannot be
expected to react forcefully or violently in protecting themselves
from the unexpected turn of events. Considering also that both
complainants were fifteen (15) years of age and considered
children under our laws, the ruling of the Supreme Court
in People v. Malones, G.R. Nos. 124388-90, March 11,
2004 becomes very relevant. The Supreme Court ruled as
follows:
Rape victims, especially child
victims, should not be expected to act the
way mature individuals would when placed
in such a situation. It is not proper to judge
the actions of children who have undergone
traumatic experience by the norms of
behavior expected from adults under similar
circumstances. The range of emotions shown
by rape victim is yet to be captured even by
calculus. It is, thus, unrealistic to expect
uniform reactions from rape victims (People
v. Malones, G.R. Nos. 124388-90, March 11,
2004).
The Court finds no need to discuss in detail the alleged
actuations of the complainants after the alleged rapes and acts of
lasciviousness. The alleged actuations are evidentiary in nature
and should be evaluated after full blown trial on the merits. This
is necessary to avoid a suspicion of prejudgment against the
accused.[22]
As can be seen, the body of the assailed Order not only plainly stated that
the court found probable cause against the petitioners, but likewise provided an
adequate discussion of the reasons for such finding.Indeed, the general rule is that
where there is a conflict between the dispositive portion or the fallo and the body of
the decision, the fallo controls. However, where the inevitable conclusion from the
body of the decision is so clear as to show that there was a mistake in the dispositive
portion, the body of the decision will prevail.[23]
In sum, petitioners resort to a Petition for Mandamus to compel the trial
judge to grant their Motion to Withdraw Informations is
improper. While mandamus is available to compel action on matters involving
judgment and discretion when refused, it is never available to direct the exercise of
judgment or discretion in a particular way or the retraction or reversal of an action
already taken in the exercise of either.[24] The trial court, when confronted with a
Motion to Withdraw an Information on the ground of lack of probable cause, is not
bound by the resolution of the prosecuting arm of the government, but is required to
make an independent assessment of the merits of such motion, a requirement
satisfied by the respondent judge in the case at bar.[25]
Finally, if only to appease petitioners who came to this Court seeking a
review of the finding of probable cause by the trial court, we nevertheless carefully
reviewed the records of the case. After going through the same, we find that we are
in agreement with the trial court that there is indeed probable cause against the
petitioners sufficient to hold them for trial. We decided to omit a detailed discussion
of the merits of the case, as we are not unmindful of the undue influence that might
result should this Court do so, even if such discussion is only intended to focus on
the finding of probable cause.
WHEREFORE, the instant Petition for Mandamus is DISMISSED. Let
the records of this case be remanded to the Regional Trial Court of Quezon City for
the resumption of the proceedings therein. The Regional Trial Court is directed to
act on the case with dispatch.
Atty. Procopio S. Beltran, Jr. is ORDERED to SHOW CAUSE why he
should not be disciplined as a member of the Bar for his disquieting conduct as
herein discussed.
SO ORDERED.
A.M. No. 10-10-4-SC
For disposition of the Court are the various submissions of the 37 respondent law
professors1 in response to the Resolution dated October 19, 2010 (the Show Cause
Resolution), directing them to show cause why they should not be disciplined as
members of the Bar for violation of specific provisions of the Code of Professional
Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this
as an administrative matter, not a special civil action for indirect contempt under
Rule 71 of the Rules of Court, contrary to the dissenting opinion of Associate Justice
Maria Lourdes P. A. Sereno (Justice Sereno) to the said October 19, 2010 Show
Cause Resolution. Neither is this a disciplinary proceeding grounded on an allegedly
irregularly concluded finding of indirect contempt as intimated by Associate Justice
Conchita Carpio Morales (Justice Morales) in her dissenting opinions to both the
October 19, 2010 Show Cause Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind,
the Court finds that with the exception of one respondent whose compliance was
adequate and another who manifested he was not a member of the Philippine Bar,
the submitted explanations, being mere denials and/or tangential to the issues at
hand, are decidedly unsatisfactory. The proffered defenses even more urgently
behoove this Court to call the attention of respondent law professors, who are
members of the Bar, to the relationship of their duties as such under the Code of
Professional Responsibility to their civil rights as citizens and academics in our free
and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are
as follows:
CANON 1 A lawyer shall uphold the constitution, obey the laws of the land and
promote respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed
at defiance of the law or at lessening confidence in the legal
system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to
the doing of any in court; nor shall he mislead, or allow the
Court to be misled by any artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or
misrepresent the contents of paper, the language or the argument
of opposing counsel, or the text of a decision or authority, or
knowingly cite as law a provision already rendered inoperative
by repeal or amendment, or assert as a fact that which has not
been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and
shall not misuse them to defeat the ends of justice.
CANON 11 A lawyer shall observe and maintain the respect due to the courts
and to judicial officers and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge
to the proper authorities only.
CANON 13 A lawyer shall rely upon the merits of his cause and refrain from any
impropriety which tends to influence, or gives the appearance of influencing the
court.
Established jurisprudence will undeniably support our view that when lawyers speak
their minds, they must ever be mindful of their sworn oath to observe ethical
standards of their profession, and in particular, avoid foul and abusive language to
condemn the Supreme Court, or any court for that matter, for a decision it has
rendered, especially during the pendency of a motion for such decisions
reconsideration. The accusation of plagiarism against a member of this Court is not
the real issue here but rather this plagiarism issue has been used to deflect
everyones attention from the actual concern of this Court to determine by
respondents explanations whether or not respondent members of the Bar have
crossed the line of decency and acceptable professional conduct and speech and
violated the Rules of Court through improper intervention or interference as third
parties to a pending case. Preliminarily, it should be stressed that it was respondents
themselves who called upon the Supreme Court to act on their Statement, 2 which
they formally submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for
the Courts proper disposition. Considering the defenses of freedom of speech and
academic freedom invoked by the respondents, it is worth discussing here that the
legal reasoning used in the past by this Court to rule that freedom of expression is
not a defense in administrative cases against lawyers for using intemperate speech in
open court or in court submissions can similarly be applied to respondents
invocation of academic freedom. Indeed, it is precisely because respondents are not
merely lawyers but lawyers who teach law and mould the minds of young aspiring
attorneys that respondents own non-observance of the Code of Professional
Responsibility, even if purportedly motivated by the purest of intentions, cannot be
ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents actuations, it is apropos
to revisit the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice
Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was
promulgated. On May 31, 2010, the counsel3 for Vinuya, et al. (the "Malaya Lolas"),
filed a Motion for Reconsideration of the Vinuya decision, raising solely the
following grounds:
I. Our own constitutional and jurisprudential histories reject this
Honorable Courts (sic) assertion that the Executives foreign policy
prerogatives are virtually unlimited; precisely, under the relevant
jurisprudence and constitutional provisions, such prerogatives are
proscribed by international human rights and humanitarian standards,
including those provided for in the relevant international conventions of
which the Philippines is a party.4
II. This Honorable Court has confused diplomatic protection with the
broader, if fundamental, responsibility of states to protect the human rights
of its citizens especially where the rights asserted are subject of erga
omnes obligations and pertain to jus cogens norms.5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr.
(Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a Supplemental
Motion for Reconsideration in G.R. No. 162230, where they posited for the first
time their charge of plagiarism as one of the grounds for reconsideration of the
Vinuya decision. Among other arguments, Attys. Roque and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE
COURTS JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST
THREE SOURCES AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW
JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE
CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED
IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE
JUDGMENTS ARGUMENTS FOR DISMISSING THE INSTANT PETITION
WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG
CASE FOR THE PETITIONS CLAIMS.7
They also claimed that "[i]n this controversy, the evidence bears out the fact not
only of extensive plagiarism but of (sic) also of twisting the true intents of the
plagiarized sources by the ponencia to suit the arguments of the assailed Judgment
for denying the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized in the
Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decents article "A
Fiduciary Theory of Jus Cogens;"9 (2) Christian J. Tams book Enforcing Erga
Omnes Obligations in International Law;10 and (3) Mark Ellis article "Breaking the
Silence: On Rape as an International Crime."11
On the same day as the filing of the Supplemental Motion for Reconsideration on
July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an article,
entitled "SC justice plagiarized parts of ruling on comfort women," on the
Newsbreak website.12 The same article appeared on the GMA News TV website also
on July 19, 2010.13
On July 22, 2010, Atty. Roques column, entitled "Plagiarized and Twisted,"
appeared in the Manila Standard Today.14 In the said column, Atty. Roque claimed
that Prof. Evan Criddle, one of the authors purportedly not properly acknowledged
in the Vinuya decision, confirmed that his work, co-authored with Prof. Evan Fox-
Decent, had been plagiarized. Atty. Roque quoted Prof. Criddles response to the
post by Julian Ku regarding the news report15 on the alleged plagiarism in the
international law blog, Opinio Juris. Prof. Criddle responded to Kus blog entry in
this wise:
The newspapers16 [plagiarism] claims are based on a motion for reconsideration
filed yesterday with the Philippine Supreme Court yesterday. The motion is
available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-
supreme-court/
The motion suggests that the Courts decision contains thirty-four sentences and
citations that are identical to sentences and citations in my 2009 YJIL article (co-
authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware of the
petitioners [plagiarism] allegations until after the motion was filed today.
Speaking for myself, the most troubling aspect of the courts jus cogens discussion
is that it implies that the prohibitions against crimes against humanity, sexual
slavery, and torture are not jus cogens norms. Our article emphatically asserts the
opposite. The Supreme Courts decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the
Court in reply to the charge of plagiarism contained in the Supplemental Motion for
Reconsideration.18
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya
decision, Dr. Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the last few
days.
Much as I regret to raise this matter before your esteemed Court, I am compelled, as
a question of the integrity of my work as an academic and as an advocate of human
rights and humanitarian law, to take exception to the possible unauthorized use of
my law review article on rape as an international crime in your esteemed Courts
Judgment in the case of Vinuya et al. v. Executive Secretary et al. (G.R. No. 162230,
Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by the
Philippine chapter of the Southeast Asia Media Legal Defence Initiative
(SEAMLDI),19 an affiliate of the London-based Media Legal Defence Initiative
(MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in
footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am also
concerned that your esteemed Court may have misread the arguments I made in the
article and employed them for cross purposes. This would be ironic since the article
was written precisely to argue for the appropriate legal remedy for victims of war
crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve Journal
of International Law in 2006 has been made available to your esteemed Court. I trust
that your esteemed Court will take the time to carefully study the arguments I made
in the article.
I would appreciate receiving a response from your esteemed Court as to the issues
raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the
Committee on Ethics and Ethical Standards (the Ethics Committee) pursuant to
Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an En Banc
Resolution also dated July 27, 2010, the Court referred the July 22, 2010 letter of
Justice Del Castillo to the Ethics Committee. The matter was subsequently docketed
as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to
comment on the letter of Justice Del Castillo.21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A
Statement by the Faculty of the University of the Philippines College of Law on the
Allegations of Plagiarism and Misrepresentation in the Supreme Court" (the
Statement), was posted in Newsbreaks website22 and on Atty. Roques blog.23 A
report regarding the statement also appeared on various on-line news sites, such as
the GMA News TV24 and the Sun Star25 sites, on the same date. The statement was
likewise posted at the University of the Philippines College of Laws bulletin board
allegedly on August 10, 201026 and at said colleges website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the
University of the Philippines College of Law Faculty (UP Law faculty) to the Court,
through Chief Justice Renato C. Corona (Chief Justice Corona). The cover letter
dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed by thirty[-
]eight (38)28members of the faculty of the UP College of Law. We hope that its
points could be considered by the Supreme Court en banc.
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not contain the
actual signatures of the alleged signatories but only stated the names of 37 UP Law
professors with the notation (SGD.) appearing beside each name. For convenient
reference, the text of the UP Law faculty Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war. After they courageously
came out with their very personal stories of abuse and suffering as "comfort
women", waited for almost two decades for any meaningful relief from their own
government as well as from the government of Japan, got their hopes up for a
semblance of judicial recourse in the case of Vinuya v. Executive Secretary, G.R.
No. 162230 (28 April 2010), they only had these hopes crushed by a singularly
reprehensible act of dishonesty and misrepresentation by the Highest Court of the
land.
It is within this frame that the Faculty of the University of the Philippines College of
Law views the charge that an Associate Justice of the Supreme Court committed
plagiarism and misrepresentation in Vinuya v. Executive Secretary. The plagiarism
and misrepresentation are not only affronts to the individual scholars whose work
have been appropriated without correct attribution, but also a serious threat to the
integrity and credibility of the Philippine Judicial System.
In common parlance, plagiarism is the appropriation and misrepresentation of
another persons work as ones own. In the field of writing, it is cheating at best, and
stealing at worst. It constitutes a taking of someone elses ideas and expressions,
including all the effort and creativity that went into committing such ideas and
expressions into writing, and then making it appear that such ideas and expressions
were originally created by the taker. It is dishonesty, pure and simple. A judicial
system that allows plagiarism in any form is one that allows dishonesty. Since all
judicial decisions form part of the law of the land, to allow plagiarism in the
Supreme Court is to allow the production of laws by dishonest means. Evidently,
this is a complete perversion and falsification of the ends of justice.
A comparison of the Vinuya decision and the original source material shows that the
ponente merely copied select portions of other legal writers works and interspersed
them into the decision as if they were his own, original work. Under the
circumstances, however, because the Decision has been promulgated by the Court,
the Decision now becomes the Courts and no longer just the ponentes. Thus the
Court also bears the responsibility for the Decision. In the absence of any mention of
the original writers names and the publications from which they came, the thing
speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case and the
spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the original articles
is a reference to the primary sources relied upon. This cursory explanation is not
acceptable, because the original authors writings and the effort they put into finding
and summarizing those primary sources are precisely the subject of plagiarism. The
inclusion of the footnotes together with portions of their writings in fact aggravates,
instead of mitigates, the plagiarism since it provides additional evidence of a
deliberate intention to appropriate the original authors work of organizing and
analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to be familiar
with all legal and scholarly journals. This is also not acceptable, because personal
unfamiliarity with sources all the more demands correct and careful attribution and
citation of the material relied upon. It is a matter of diligence and competence
expected of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors Evan
Criddle and Evan Fox-Descent, that the High Court actually misrepresents the
conclusions of their work entitled "A Fiduciary Theory of Jus Cogens," the main
source of the plagiarized text. In this article they argue that the classification of the
crimes of rape, torture, and sexual slavery as crimes against humanity have attained
the status of jus cogens, making it obligatory upon the State to seek remedies on
behalf of its aggrieved citizens. Yet, the Vinuya decision uses parts of the same
article to arrive at the contrary conclusion. This exacerbates the intellectual
dishonesty of copying works without attribution by transforming it into an act of
intellectual fraud by copying works in order to mislead and deceive.
The case is a potential landmark decision in International Law, because it deals with
State liability and responsibility for personal injury and damage suffered in a time of
war, and the role of the injured parties home States in the pursuit of remedies
against such injury or damage. National courts rarely have such opportunities to
make an international impact. That the petitioners were Filipino "comfort women"
who suffered from horrific abuse during the Second World War made it incumbent
on the Court of last resort to afford them every solicitude. But instead of acting with
urgency on this case, the Court delayed its resolution for almost seven years,
oblivious to the deaths of many of the petitioners seeking justice from the Court.
When it dismissed the Vinuya petition based on misrepresented and plagiarized
materials, the Court decided this case based on polluted sources. By so doing, the
Supreme Court added insult to injury by failing to actually exercise its "power to
urge and exhort the Executive Department to take up the claims of
the Vinuya petitioners. Its callous disposition, coupled with false sympathy and
nonchalance, belies a more alarming lack of concern for even the most basic values
of decency and respect. The reputation of the Philippine Supreme Court and the
standing of the Philippine legal profession before other Judiciaries and legal systems
are truly at stake.
The High Court cannot accommodate less than absolute honesty in its decisions and
cannot accept excuses for failure to attain the highest standards of conduct imposed
upon all members of the Bench and Bar because these undermine the very
foundation of its authority and power in a democratic society. Given the Courts
recent history and the controversy that surrounded it, it cannot allow the charges of
such clear and obvious plagiarism to pass without sanction as this would only further
erode faith and confidence in the judicial system. And in light of the significance of
this decision to the quest for justice not only of Filipino women, but of women
elsewhere in the world who have suffered the horrors of sexual abuse and
exploitation in times of war, the Court cannot coldly deny relief and justice to the
petitioners on the basis of pilfered and misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without
ensuring that its own conduct, whether collectively or through its Members, is
beyond reproach. This necessarily includes ensuring that not only the content, but
also the processes of preparing and writing its own decisions, are credible and
beyond question. The Vinuya Decision must be conscientiously reviewed and not
casually cast aside, if not for the purpose of sanction, then at least for the purpose of
reflection and guidance. It is an absolutely essential step toward the establishment of
a higher standard of professional care and practical scholarship in the Bench and
Bar, which are critical to improving the system of administration of justice in the
Philippines. It is also a very crucial step in ensuring the position of the Supreme
Court as the Final Arbiter of all controversies: a position that requires competence
and integrity completely above any and all reproach, in accordance with the exacting
demands of judicial and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust reposed
upon them as teachers in the profession of Law, it is the opinion of the Faculty of the
University of the Philippine College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive
Secretary is unacceptable, unethical and in breach of the high
standards of moral conduct and judicial and professional
competence expected of the Supreme Court;
(2) Such a fundamental breach endangers the integrity and
credibility of the entire Supreme Court and undermines the
foundations of the Philippine judicial system by allowing
implicitly the decision of cases and the establishment of legal
precedents through dubious means;
(3) The same breach and consequent disposition of
the Vinuya case does violence to the primordial function of the
Supreme Court as the ultimate dispenser of justice to all those
who have been left without legal or equitable recourse, such as
the petitioners therein;
(4) In light of the extremely serious and far-reaching nature of
the dishonesty and to save the honor and dignity of the Supreme
Court as an institution, it is necessary for the ponente of Vinuya
v. Executive Secretary to resign his position, without prejudice
to any other sanctions that the Court may consider appropriate;
(5) The Supreme Court must take this opportunity to review the
manner by which it conducts research, prepares drafts, reaches
and finalizes decisions in order to prevent a recurrence of similar
acts, and to provide clear and concise guidance to the Bench and
Bar to ensure only the highest quality of legal research and
writing in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July
2010.
A.M. No. 10-7-17-SC
Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of
the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special
civil action of certiorari with application for preliminary mandatory injunction
against the Executive Secretary, the Secretary of Foreign Affairs, the Secretary of
Justice, and the Office of the Solicitor General.
Petitioners claimed that in destroying villages in the Philippines during World War
II, the Japanese army systematically raped them and a number of other women,
seizing them and holding them in houses or cells where soldiers repeatedly ravished
and abused them.
Petitioners alleged that they have since 1998 been approaching the Executive
Department, represented by the respondent public officials, requesting assistance in
filing claims against the Japanese military officers who established the comfort
women stations. But that Department declined, saying that petitioners individual
claims had already been fully satisfied under the Peace Treaty between the
Philippines and Japan.
Petitioners wanted the Court to render judgment, compelling the Executive
Department to espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice and other
international tribunals.
On April 28, 2010, the Court rendered judgment dismissing petitioners
action. Justice Mariano C. del Castillo wrote the decision for the Court. The Court
essentially gave two reasons for its decision: it cannot grant the petition
because, first, the Executive Department has the exclusive prerogative under the
Constitution and the law to determine whether to espouse petitioners claim against
Japan; and, second, the Philippines is not under any obligation in international law
to espouse their claims.
On June 9, 2010, petitioners filed a motion for reconsideration of the
Courts decision. More than a month later on July 18, 2010, counsel for petitioners,
Atty. Herminio Harry Roque, Jr., announced in his online blog that his clients would
file a supplemental petition detailing plagiarism committed by the court under
the second reason it gave for dismissing the petition and that these stolen passages
were also twisted to support the courts erroneous conclusions that the Filipino
comfort women of World War Two have no further legal remedies. The media gave
publicity to Atty. Roques announcement.
On July 19, 2010, petitioners filed the supplemental motion for
reconsideration that Atty. Roque announced. It accused Justice Del Castillo of
manifest intellectual theft and outright plagiarism[1] when he wrote the decision for
the Court and of twisting the true intents of the plagiarized sources to suit the
arguments of the assailed Judgment.[2] They charged Justice Del Castillo of copying
without acknowledgement certain passages from three foreign articles:
 a. A Fiduciary Theory of Jus Cogens by Evan J.
Criddle and Evan Fox-Descent, Yale Journal of International
Law (2009);
b. Breaking the Silence: Rape as an International
Crime by Mark Ellis, Case Western Reserve Journal of
International Law (2006); and
c. Enforcing Erga Omnes Obligations by Christian J.
Tams, Cambridge University Press (2005).
Petitioners claim that the integrity of the Courts deliberations in the case
has been put into question by Justice Del Castillos fraud. The Court should thus
address and disclose to the public the truth about the manifest intellectual theft and
outright plagiarism[3] that resulted in gross prejudice to the petitioners.
Because of the publicity that the supplemental motion for reconsideration
generated, Justice Del Castillo circulated a letter to his colleagues, subsequently
verified, stating that when he wrote the decision for the Court he had the intent to
attribute all sources used in it. He said in the pertinent part:
It must be emphasized that there was every
intention to attribute all sources, whenever due. At no point
was there ever any malicious intent to appropriate anothers
work as our own. We recall that this ponencia was thrice
included in the Agenda of the Court en banc. It was
deliberated upon during the Baguio session on April 13,
2010, April 20, 2010 and in Manila on April 27, 2010. Each
time, suggestions were made which necessitated major
revisions in the draft. Sources were re-studied, discussions
modified, passages added or deleted. The resulting decision
comprises 34 pages with 78 footnotes.
xxxx
As regards the claim of the petitioners that the
concepts as contained in the above foreign materials were
twisted, the same remains their opinion which we do not
necessarily share.[4]
On July 27, 2010, the Court En Banc referred the charges against Justice
Del Castillo to its Committee on Ethics and Ethical Standards, chaired by the Chief
Justice, for investigation and recommendation. The Chief Justice designated retired
Justice Jose C. Vitug to serve as consultant of the Committee. He graciously
accepted.
On August 2, 2010, the Committee directed petitioners to comment on
Justice Del Castillos verified letter. When this was done, it set the matter for hearing.
In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he
and his co-author Evan Fox-Descent (referred to jointly as Criddle-Descent) learned
of alleged plagiarism involving their work but Criddles concern, after reading the
supplemental motion for reconsideration, was the Courts conclusion that
prohibitions against sexual slavery are not jus cogens or internationally binding
norms that treaties cannot diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that
in mentioning his work, the Court may have misread the argument [he] made in the
article and employed them for cross purposes. Dr. Ellis said that he wrote the article
precisely to argue for appropriate legal remedy for victims of war crimes.
On August 8, 2010, after the referral of the matter to the Committee for
investigation, the Dean of the University of the Philippines (U.P.) College of Law
publicized a Statement from his faculty, claiming that the Vinuya decision was an
extraordinary act of injustice and a singularly reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land. The statement said that Justice
Del Castillo had a deliberate intention to appropriate the original authors work, and
that the Courts decision amounted to an act of intellectual fraud by copying works in
order to mislead and deceive.[5]
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona
that, although relevant sentences in the Courts decision were taken from his work, he
was given generic reference only in the footnote and in connection with a citation
from another author (Bruno Simma) rather than with respect to the passages taken
from his work. He thought that the form of referencing was inappropriate. Mr. Tams
was also concerned that the decision may have used his work to support an approach
to erga omnes concept (obligations owed by individual States to the community of
nations) that is not consistent with what he advocated.
On August 26, 2010, the Committee heard the parties submissions in the summary
manner of administrative investigations. Counsels from both sides were given ample
time to address the Committee and submit their evidence. The Committee queried
them on these.
Counsels for Justice Del Castillo later asked to be heard with the other
parties not in attendance so they could make submissions that their client regarded as
sensitive and confidential, involving the drafting process that went into the making
of the Courts decision in the Vinuya case. Petitioners counsels vigorously objected
and the Committee sustained the objection. After consulting Justice Del Castillo, his
counsels requested the Committee to hear the Justices court researcher, whose name
need not be mentioned here, explain the research work that went into the making of
the decision in the Vinuya case. The Committee granted the request.
The researcher demonstrated by Power Point presentation how the
attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found
in the beginning drafts of her report to Justice Del Castillo, were unintentionally
deleted. She tearfully expressed remorse at her grievous mistake and grief for having
caused an enormous amount of suffering for Justice Del Castillo and his family. [6]
On the other hand, addressing the Committee in reaction to the researchers
explanation, counsel for petitioners insisted that lack of intent is not a defense in
plagiarism since all that is required is for a writer to acknowledge that certain words
or language in his work were taken from anothers work. Counsel invoked the Courts
ruling in University of the Philippines Board of Regents v. Court of Appeals and
Arokiaswamy William Margaret Celine,[7] arguing that standards on plagiarism in
the academe should apply with more force to the judiciary.
After the hearing, the Committee gave the parties ten days to file their
respective memoranda. They filed their memoranda in due course. Subsequently
after deliberation, the Committee submitted its unanimous findings and
recommendations to the Court.
The Issues
This case presents two issues:
1. Whether or not, in writing the opinion for the Court in the Vinuya case, Justice
Del Castillo plagiarized the published works of authors Tams, Criddle-Descent, and
Ellis.
2. Whether or not Justice Del Castillo twisted the works of these authors to make it
appear that such works supported the Courts position in the Vinuya decision.
The Courts Rulings
Because of the pending motion for reconsideration in the Vinuya case, the Court like
its Committee on Ethics and Ethical Standards will purposely avoid touching the
merits of the Courts decision in that case or the soundness or lack of soundness of
the position it has so far taken in the same. The Court will deal, not with the
essential merit or persuasiveness of the foreign authors works, but how the decision
that Justice Del Castillo wrote for the Court appropriated parts of those works and
for what purpose the decision employed the same.
At its most basic, plagiarism means the theft of another persons language,
thoughts, or ideas. To plagiarize, as it is commonly understood according to
Webster, is to take (ideas, writings, etc.) from (another) and pass them off as ones
own.[8] The passing off of the work of another as ones own is thus an indispensable
element of plagiarism.
The Passages from Tams
Petitioners point out that the Vinuya decision lifted passages from Tams
book, Enforcing Erga Omnes Obligations in International Law (2006) and used
them in Footnote 69 with what the author thought was a mere generic reference. But,
although Tams himself may have believed that the footnoting in this case was not an
appropriate form of referencing,[9] he and petitioners cannot deny that the decision
did attribute the source or sources of such passages. Justice Del Castillo did not pass
off Tams work as his own. The Justice primarily attributed the ideas embodied in the
passages to Bruno Simma, whom Tams himself credited for them. Still, Footnote 69
mentioned, apart from Simma, Tams article as another source of those ideas.
The Court believes that whether or not the footnote is sufficiently detailed,
so as to satisfy the footnoting standards of counsel for petitioners is not an ethical
matter but one concerning clarity of writing.The statement See Tams, Enforcing
Obligations Erga Omnes in International Law (2005) in the Vinuyadecision is an
attribution no matter if Tams thought that it gave him somewhat less credit than he
deserved.Such attribution altogether negates the idea that Justice Del Castillo passed
off the challenged passages as his own.
That it would have been better had Justice Del Castillo used the
introductory phrase cited in rather than the phrase See would make a case of mere
inadvertent slip in attribution rather than a case of manifest intellectual theft and
outright plagiarism. If the Justices citations were imprecise, it would just be a case
of bad footnoting rather than one of theft or deceit. If it were otherwise, many would
be target of abuse for every editorial error, for every mistake in citing pagination,
and for every technical detail of form.
The Passages from Ellis
and Criddle-Descent
Petitioners also attack the Courts decision for lifting and using as
footnotes, without attribution to the author, passages from the published work of
Ellis. The Court made the following statement on page 27 of its decision, marked
with Footnote 65 at the end:
We fully agree that rape, sexual slavery, torture, and
sexual violence are morally reprehensible as well as legally
prohibited under contemporary international law. 65 xxx
 Footnote 65 appears down the bottom of the page. Since the lengthy
passages in that footnote came almost verbatim from Ellis article,[10] such passages
ought to have been introduced by an acknowledgement that they are from that
article. The footnote could very well have read:
65 In an article, Breaking the Silence: Rape as an
International Crime, Case Western Reserve Journal of
International Law (2006), Mark Ellis said: The concept of
rape as an international crime is relatively new. This is not to say
that rape has never been historically prohibited, particularly in
war. But modern-day sensitivity to the crime of rape did not
emerge until after World War II. In the Nuremberg Charter, the
word rape was not mentioned. The article on crimes against
humanity explicitly set forth prohibited acts, but rape was not
mentioned by name. (For example, the Treaty of Amity and
Commerce between Prussia and the United States provides that
in time of war all women and children shall not be molested in
their persons. The Treaty of Amity and Commerce, Between his
Majesty the King of Prussia and the United States of America,
art. 23, Sept. 10, 1785, U.S.-Pruss., 8 TREATIES & OTHER
INT'L AGREEMENTS OF THE U.S. 78, 85. The 1863 Lieber
Instructions classified rape as a crime of troop discipline.
(Mitchell, TheProhibition of Rape in International
Humanitarian Law as a Norm of Jus cogens: Clarifying the
Doctrine, 15 DUKE J. COMP. INTL. L. 219, 224). It specified
rape as a capital crime punishable by the death penalty (Id. at
236). The 1907 Hague Convention protected women by
requiring the protection of their honour. (Family honour and
rights, the lives of persons, and private property, as well as
religious convictions and practice, must be respected.
Convention (IV) Respecting the Laws & Customs of War on
Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I)
of December 11, 1946 entitled, Affirmation of the Principles of
International Law recognized by the Charter of the Nrnberg
Tribunal; General Assembly document A/64/Add.1 of
1946; See Agreement for the Prosecution and Punishment of the
Major War Criminals of the European Axis, Aug. 8, 1945, 59
Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter
established crimes against humanity as the following:
CRIMES AGAINST HUMANITY: namely, murder,
extermination, enslavement, deportation, and other
inhumane acts committed against any civilian
population, before or during the war, or persecutions
on political, racial or religious grounds in execution of
or in connection with any crime within the Jurisdiction
of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated.
The Nuremberg Judgment did not make any reference to
rape and rape was not prosecuted. (Judge Gabrielle Kirk
McDonald, The International Criminal Tribunals Crime
and Punishment in the International Arena,7 ILSA J.
INTL. COMP. L. 667, 676.) However, International
Military Tribunal for the Far East prosecuted rape crimes,
even though its Statute did not explicitly criminalize rape.
The Far East Tribunal held General Iwane Matsui,
Commander Shunroku Hata and Foreign Minister Hirota
criminally responsible for a series of crimes, including
rape, committed by persons under their authority. (THE
TOKYO JUDGMENT: JUDGMENT OF THE
INTERNATIONAL MILITARY TRIBUNAL FOR THE
FAR EAST 445-54 (1977).
The first mention of rape as a specific crime came in
December 1945 when Control Council Law No. 10
included the term rape in the definition of crimes against
humanity. Law No. 10, adopted by the four occupying
powers in Germany, was devised to establish a uniform
basis for prosecuting war criminals in German courts.
(Control Council for Germany, Law No. 10: Punishment of
Persons Guilty of War Crimes, Crimes Against Peace and
Against Humanity, Dec. 20, 1945, 3 Official Gazette
Control Council for Germany 50, 53 (1946))
The 1949 Geneva Convention Relative to the
Treatment of Prisoners of War was the first modern-day
international instrument to establish protections against
rape for women. Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12,
1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into
force Oct. 20, 1950) [hereinafter Fourth Geneva
Convention].Furthermore, the ICC, the ICTY, and the
International Criminal Tribunal for Rwanda (ICTR) have
significantly advanced the crime of rape by enabling it to
be prosecuted as genocide, a war crime, and a crime against
humanity.
But, as it happened, the acknowledgment above or a similar introduction
was missing from Footnote 65.
Next, petitioners also point out that the following eight sentences and their
accompanying footnotes appear in text on pages 30-32 of the Vinuya decision:
 xxx In international law, the term jus
cogens (literally, compelling law) refers to norms that
command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general
international norms of equivalent authority.71
Early strains of the jus cogens doctrine have existed since the
1700s,72 but peremptory norms began to attract greater scholarly
attention with the publication of Alfred von Verdross's influential
1937 article, Forbidden Treaties in International Law.73 The
recognition of jus cogens gained even more force in the 1950s and
1960s with the ILCs preparation of the Vienna Convention on the
Law of Treaties (VCLT).74 Though there was a consensus that
certain international norms had attained the status of jus
cogens,75 the ILC was unable to reach a consensus on the proper
criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus
cogens, the ILC concluded ruefully in 1963 that there is not
as yet any generally accepted criterion by which to identify a
general rule of international law as having the character
of jus cogens.76 In a commentary accompanying the draft
convention, the ILC indicated that the prudent course seems
to be to x x x leave the full content of this rule to be worked
out in State practice and in the jurisprudence of
international tribunals.77 Thus, while the existence of jus
cogensin international law is undisputed, no consensus exists
on its substance,77 beyond a tiny core of principles and
rules.78
Admittedly, the Vinuya decision lifted the above, including their footnotes,
from Criddle-Descents article, A Fiduciary Theory of Jus Cogens.[11] Criddle-
Descents footnotes were carried into the Vinuyadecisions own footnotes but no
attributions were made to the two authors in those footnotes.
The Explanation
Unless amply explained, the above lifting from the works of Ellis and
Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillos
researchers, a court-employed attorney, explained how she accidentally deleted the
attributions, originally planted in the beginning drafts of her report to him, which
report eventually became the working draft of the decision. She said that, for most
parts, she did her research electronically. For international materials, she sourced
these mainly from Westlaw, an online research service for legal and law-related
materials to which the Court subscribes.
In the old days, the common practice was that after a Justice would have
assigned a case for study and report, the researcher would source his materials
mostly from available law books and published articles on print. When he found a
relevant item in a book, whether for one side of the issue or for the other, he would
place a strip of paper marker on the appropriate page, pencil mark the item, and
place the book on his desk where other relevant books would have piled up. He
would later paraphrase or copy the marked out passages from some of these books
as he typed his manuscript on a manual typewriter. This occasion would give him a
clear opportunity to attribute the materials used to their authors or sources.
With the advent of computers, however, as Justice Del Castillos researcher
also explained, most legal references, including the collection of decisions of the
Court, are found in electronic diskettes or in internet websites that offer virtual
libraries of books and articles. Here, as the researcher found items that were relevant
to her assignment, she downloaded or copied them into her main manuscript, a
smorgasbord plate of materials that she thought she might need. The researchers
technique in this case is not too far different from that employed by a carpenter. The
carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes
suitable to the object he has in mind, say a table. When ready, he would measure out
the portions he needs, cut them out of the pieces of lumber he had collected, and
construct his table. He would get rid of the scraps.
Here, Justice Del Castillos researcher did just that. She electronically cut
relevant materials from books and journals in the Westlaw website and pasted these
to a main manuscript in her computer that contained the issues for discussion in her
proposed report to the Justice. She used the Microsoft Word program.[12] Later, after
she decided on the general shape that her report would take, she began pruning from
that manuscript those materials that did not fit, changing the positions in the general
scheme of those that remained, and adding and deleting paragraphs, sentences, and
words as her continuing discussions with Justice Del Castillo, her chief editor,
demanded. Parenthetically, this is the standard scheme that computer-literate court
researchers use everyday in their work.
Justice Del Castillos researcher showed the Committee the early drafts of
her report in the Vinuya case and these included the passages lifted from the separate
articles of Criddle-Descent and of Ellis with proper attributions to these
authors. But, as it happened, in the course of editing and cleaning up her draft, the
researcher accidentally deleted the attributions.
First Finding
 The Court adopts the Committees finding that the researchers explanation
regarding the accidental removal of proper attributions to the three authors is
credible. Given the operational properties of the Microsoft program in use by the
Court, the accidental decapitation of attributions to sources of research materials is
not remote.
For most senior lawyers and judges who are not computer literate, a
familiar example similar to the circumstances of the present case would probably
help illustrate the likelihood of such an accident happening.If researcher X, for
example, happens to be interested in the inalienable character of juridical personality
in connection with an assignment and if the book of the learned Civilist, Arturo M.
Tolentino, happens to have been published in a website, researcher X would
probably show interest in the following passage from that book:
xxx Both juridical capacity and capacity to act are
not rights, but qualities of persons; hence, they cannot be
alienated or renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark (#15) that attributes the idea to other
sources, it is evident that Tolentino did not originate it. The idea is not a product of
his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable foreign
authors.
When researcher X copies and pastes the above passage and its footnote into a
manuscript-in-the-making in his computer, the footnote number would, given the
computer program in use, automatically change and adjust to the footnoting
sequence of researcher Xs manuscript. Thus, if the preceding footnote in the
manuscript when the passage from Tolentino was pasted on it is 23, Tolentinos
footnote would automatically change from the original Footnote 15 to Footnote 24.
But then, to be of use in his materials-gathering scheme, researcher X
would have to tag the Tolentino passage with a short description of its subject for
easy reference. A suitable subject description would be: The inalienable character of
juridical personality.23 The footnote mark, 23 From Tolentino, which researcher X
attaches to the subject tag, serves as reminder to him to attribute the passage in its
final form to Tolentino.After the passage has been tagged, it would now appear like
this:
The inalienable character of juridical personality.23
xxx Both juridical capacity and capacity to act are
not rights, but qualities of persons; hence, they cannot be
alienated or renounced.24
xxx
_____________________________
23 From Tolentino.
24 3 Von Tuhr 296; 1 Valverde 291.
The tag is of course temporary and would later have to go. It serves but a
marker to help researcher X maneuver the passage into the right spot in his final
manuscript.
The mistake of Justice Del Castillos researcher is that, after the Justice had
decided what texts, passages, and citations were to be retained including those from
Criddle-Descent and Ellis, and when she was already cleaning up her work and
deleting all subject tags, she unintentionally deleted the footnotes that went with
such tagswith disastrous effect.
To understand this, in Tolentinos example, the equivalent would be
researcher Xs removal during cleanup of the tag, The inalienable character of
juridical personality.23, by a simple delete operation, and the unintended removal as
well of the accompanying footnote (#23). The erasure of the footnote eliminates the
link between the lifted passage and its source, Tolentinos book. Only the following
would remain in the manuscript:
xxx Both juridical capacity and capacity to act are
not rights, but qualities of persons; hence, they cannot be
alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
As it happened, the Microsoft word program does not have a function that
raises an alarm when original materials are cut up or pruned. The portions that
remain simply blend in with the rest of the manuscript, adjusting the footnote
number and removing any clue that what should stick together had just been
severed.
This was what happened in the attributions to Ellis and Criddle-
Descent. The researcher deleted the subject tags and, accidentally, their
accompanying footnotes that served as reminder of the sources of the lifted
passages. With 119 sources cited in the decision, the loss of the 2 of them was not
easily detectable.
 Petitioners point out, however, that Justice Del Castillos verified letter of
July 22, 2010 is inconsistent with his researchers claim that the omissions were mere
errors in attribution. They cite the fact that the Justice did not disclose his
researchers error in that letter despite the latters confession regarding her mistake
even before the Justice sent his letter to the Chief Justice. By denying plagiarism in
his letter, Justice Del Castillo allegedly perjured himself and sought to whitewash
the case.[13]
But nothing in the July 22 letter supports the charge of false testimony.
Justice Del Castillo merely explained that there was every intention to attribute all
sources whenever due and that there was never any malicious intent to appropriate
anothers work as our own, which as it turns out is a true statement. He recalled how
the Court deliberated upon the case more than once, prompting major revisions in
the draft of the decision. In the process, (s)ources were re-studied, discussions
modified, passages added or deleted. Nothing in the letter suggests a cover-
up. Indeed, it did not preclude a researchers inadvertent error.
And it is understandable that Justice Del Castillo did not initially disclose
his researchers error. He wrote the decision for the Court and was expected to take
full responsibility for any lapse arising from its preparation. What is more, the
process of drafting a particular decision for the Court is confidential, which
explained his initial request to be heard on the matter without the attendance of the
other parties.
Notably, neither Justice Del Castillo nor his researcher had a motive or
reason for omitting attribution for the lifted passages to Criddle-Descent or to
Ellis. The latter authors are highly respected professors of international law. The law
journals that published their works have exceptional reputations. It did not make
sense to intentionally omit attribution to these authors when the decision cites an
abundance of other sources.Citing these authors as the sources of the lifted passages
would enhance rather than diminish their informative value. Both Justice Del
Castillo and his researcher gain nothing from the omission. Thus, the failure to
mention the works of Criddle-Decent and Ellis was unquestionably due to
inadvertence or pure oversight.
Petitioners of course insist that intent is not material in committing
plagiarism since all that a writer has to do, to avoid the charge, is to enclose lifted
portions with quotation marks and acknowledge the sources from which these were
taken.[14] Petitioners point out that the Court should apply to this case the ruling
inUniversity of the Philippines Board of Regents v. Court of Appeals and
Arokiaswamy William Margaret Celine.[15] They argue that standards on plagiarism
in the academe should apply with more force to the judiciary.
But petitioners theory ignores the fact that plagiarism is essentially a form
of fraud where intent to deceive is inherent. Their theory provides no room for errors
in research, an unrealistic position considering that there is hardly any substantial
written work in any field of discipline that is free of any mistake. The theory places
an automatic universal curse even on errors that, as in this case, have reasonable and
logical explanations.
Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as the
deliberate and knowing presentation of another person's original ideas or creative
expressions as one's own.[16] Thus, plagiarism presupposes intent and a deliberate,
conscious effort to steal anothers work and pass it off as ones own.
Besides, the Court said nothing in U.P. Board of Regents that would
indicate that an intent to pass off anothers work as ones own is not required in
plagiarism. The Court merely affirmed the academic freedom of a university to
withdraw a masters degree that a student obtained based on evidence that she
misappropriated the work of others, passing them off as her own. This is not the case
here since, as already stated, Justice Del Castillo actually imputed the borrowed
passages to others.
Second Finding
The Court also adopts the Committees finding that the omission of
attributions to Criddle-Descent and Ellis did not bring about an impression that
Justice Del Castillo himself created the passages that he lifted from their published
articles. That he merely got those passages from others remains self-evident, despite
the accidental deletion. The fact is that he still imputed the passages to the sources
from which Criddle-Descent and Ellis borrowed them in the first place.
This is best illustrated in the familiar example above. After the deletion of
the subject tag and, accidentally, its footnote which connects to the source, the lifted
passage would appear like this:
xxx Both juridical capacity and capacity to act are
not rights, but qualities of persons; hence, they cannot be
alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
Although the unintended deletion severed the passages link to Tolentino,
the passage remains to be attributed to Von Tuhr and Valverde, the original sources
that Tolentino himself cites. The text and its footnote reference cancel out any
impression that the passage is a creation of researcher X. It is the same with the
passages from Criddle-Descent and Ellis. Because such passages remained attributed
by the footnotes to the authors original sources, the omission of attributions to
Criddle-Descent and Ellis gave no impression that the passages were the creations of
Justice Del Castillo. This wholly negates the idea that he was passing them off as his
own thoughts.
True the subject passages in this case were reproduced in
the Vinuya decision without placing them in quotation marks. But such passages are
much unlike the creative line from Robert Frost,[17] The woods are lovely, dark, and
deep, but I have promises to keep, and miles to go before I sleep, and miles to go
before I sleep. The passages here consisted of common definitions and terms,
abridged history of certain principles of law, and similar frequently repeated phrases
that, in the world of legal literature, already belong to the public realm.
To paraphrase Bast and Samuels,[18] while the academic publishing model
is based on the originality of the writers thesis, the judicial system is based on the
doctrine of stare decisis, which encourages courts to cite historical legal data,
precedents, and related studies in their decisions. The judge is not expected to
produce original scholarship in every respect. The strength of a decision lies in the
soundness and general acceptance of the precedents and long held legal opinions it
draws from.
Third Finding
Petitioners allege that the decision twisted the passages from Tams,
Criddle-Descent, and Ellis. The Court adopts the Committees finding that this is not
so. Indeed, this allegation of twisting or misrepresentation remains a mystery to the
Court. To twist means to distort or pervert the meaning of.[19] For example, if one
lifts the lyrics of the National Anthem, uses it in his work, and declares that Jose
Palma who wrote it did not love his country, then there is twisting or
misrepresentation of what the anthems lyrics said.Here, nothing in
the Vinuya decision said or implied that, based on the lifted passages, authors Tams,
Criddle-Descent, and Ellis supported the Courts conclusion that the Philippines is
not under any obligation in international law to espouse Vinuya et al.s claims.
The fact is that, first, since the attributions to Criddle-Descent and Ellis
were accidentally deleted, it is impossible for any person reading the decision to
connect the same to the works of those authors as to conclude that in writing the
decision Justice Del Castillo twisted their intended messages. And, second, the lifted
passages provided mere background facts that established the state of international
law at various stages of its development. These are neutral data that could support
conflicting theories regarding whether or not the judiciary has the power today to
order the Executive Department to sue another country or whether the duty to
prosecute violators of international crimes has attained the status of jus cogens.
Considering how it was impossible for Justice Del Castillo to have twisted
the meaning of the passages he lifted from the works of Tams, Criddle-Descent, and
Ellis, the charge of twisting or misrepresentation against him is to say the least,
unkind. To be more accurate, however, the charge is reckless and obtuse.
No Misconduct
On occasions judges and justices have mistakenly cited the wrong sources,
failed to use quotation marks, inadvertently omitted necessary information from
footnotes or endnotes. But these do not, in every case, amount to misconduct. Only
errors that are tainted with fraud, corruption, or malice are subject of disciplinary
action.[20] This is not the case here. Justice Del Castillos acts or omissions were not
shown to have been impelled by any of such disreputable motives.[21] If the rule
were otherwise, no judge or justice, however competent, honest, or dedicated he
may be, can ever hope to retire from the judiciary with an unblemished record. [22]
No Inexcusable Negligence
Finally, petitioners assert that, even if they were to concede that the
omission was the result of plain error, Justice Del Castillo is nonetheless guilty of
gross inexcusable negligence. They point out that he has full control and supervision
over his researcher and should not have surrendered the writing of the decision to
the latter.[23]
But this assumes that Justice Del Castillo abdicated the writing of
the Vinuya decision to his researcher, which is contrary to the evidence adduced
during the hearing. As his researcher testified, the Justice set the direction that the
research and study were to take by discussing the issues with her, setting forth his
position on those issues, and reviewing and commenting on the study that she was
putting together until he was completely satisfied with it. [24] In every sense, Justice
Del Castillo was in control of the writing of the report to the Court, which report
eventually became the basis for the decision, and determined its final outcome.
Assigning cases for study and research to a court attorney, the equivalent
of a law clerk in the United States Supreme Court, is standard practice in the high
courts of all nations. This is dictated by necessity. With about 80 to 100 cases
assigned to a Justice in our Court each month, it would be truly senseless for him to
do all the studies and research, going to the library, searching the internet, checking
footnotes, and watching the punctuations. If he does all these by himself, he would
have to allocate at least one to two weeks of work for each case that has been
submitted for decision. The wheels of justice in the Supreme Court will grind to a
halt under such a proposition.
What is important is that, in this case, Justice Del Castillo retained control
over the writing of the decision in the Vinuya case without, however, having to look
over his researchers shoulder as she cleaned up her draft report to ensure that she hit
the right computer keys. The Justices researcher was after all competent in the field
of assignment given her. She finished law from a leading law school, graduated third
in her class, served as Editor-in Chief of her schools Law Journal, and placed fourth
in the bar examinations when she took it. She earned a masters degree in
International Law and Human Rights from a prestigious university in the United
States under the Global-Hauser program, which counsel for petitioners concedes to
be one of the top post graduate programs on International Law in the world. Justice
Del Castillo did not exercise bad judgment in assigning the research work in
the Vinuya case to her.
Can errors in preparing decisions be prevented? Not until computers cease
to be operated by human beings who are vulnerable to human errors. They are
hypocrites who believe that the courts should be as error-free as they themselves are.
Incidentally, in the course of the submission of petitioners exhibits, the
Committee noted that petitioners Exhibit J, the accusing statement of the Faculty of
the U.P. College of Law on the allegations of plagiarism and misinterpretation, was
a mere dummy. The whole of the statement was reproduced but the signatures
portion below merely listed the names of 38 faculty members, in solid rows, with the
letters Sgd or signed printed beside the names without exception. These included the
name of retired Supreme Court Justice Vicente V. Mendoza, a U.P. professor.
Because the Committee declined to admit a mere dummy of Exhibit J, it
directed Atty. Roque to present the signed copy within three days of the August 26
hearing.[25] He complied. As it turned out, the original statement was signed by only
a minority of the faculty members on the list. The set of signatories that appeared
like solid teeth in the dummy turned out to be broken teeth in the original. Since
only 37 out of the 81 on the list signed the document, it does not appear to be a
statement of the Faculty but of just some of its members. And retired Justice V. V.
Mendoza did not sign the statement, contrary to what the dummy represented. The
Committee wondered why the Dean submitted a dummy of the signed document
when U.P. has an abundance of copying machines.
Since the above circumstances appear to be related to separate en
banc matter concerning the supposed Faculty statement, there is a need for the
Committee to turn over the signed copy of the same to the en bancfor its
consideration in relation to that matter.
WHEREFORE, in view of all of the above, the Court:
1. DISMISSES for lack of merit petitioner Vinuya, et al.s charges of
plagiarism, twisting of cited materials, and gross neglect against Justice Mariano C.
del Castillo;
2. DIRECTS the Public Information Office to send copies of this decision
to Professors Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor
Christian J. Tams at their known addresses;
3. DIRECTS the Clerk of Court to provide all court attorneys involved in
legal research and reporting with copies of this decision and to enjoin them to avoid
editing errors committed in the Vinuya case while using the existing computer
program especially when the volume of citations and footnoting is substantial; and
4. Finally, DIRECTS the Clerk of Court to acquire the necessary software
for use by the Court that can prevent future lapses in citations and attributions.
Further, the Court DIRECTS the Committee on Ethics and Ethical
Standards to turn over to the en banc the dummy as well as the signed copy of
petitioners Exhibit J, entitled Restoring Integrity, a statement by the Faculty of the
University of the Philippines College of Law for the en bancs consideration in
relation to the separate pending matter concerning that supposed Faculty statement.
SO ORDERED.
A.M. No. 10-1-13-SC
Before us for consideration are the interrelated matters listed below.
a. The subpoena duces tecum (dated January 11, 2010 and received by
this Court on January 18, 2010), issued by the Office of the Ombudsman on the
Chief, Office of the Administrative Services or AUTHORIZED
REPRESENTATIVE, Supreme Court, Manila, for the submission to the Office
of the Ombudsman of the latest Personal Data Sheets and last known forwarding
address of former Chief Justice Hilario G. Davide, Jr. and former Associate
Justice Ma. Alicia Austria-Martinez. The subpoenaduces tecum was issued in
relation to a criminal complaint under (b) below, pursuant to Section 13, Article XI of
the Constitution and Section 15 of Republic Act No. 6770. The Office of the
Administrative Services (OAS) referred the matter to us on January 21, 2010 with a
request for clearance to release the specified documents and information.
b. Copy of the criminal complaint entitled Oliver O. Lozano
and Evangeline Lozano-Endriano v. Hilario G. Davide, Jr., et al., OMB-C-C-09-
0527-J, cited by the Ombudsman as basis for the the subpoena duces tecum it
issued. We secured a copy of this criminal complaint from the Ombudsman to
determine the legality and propriety of the subpoena duces tecum sought.
c. Order dated February 4, 2010 (which the Court received
on February 9, 2010), signed by Acting Director Maribeth Taytaon-Padios of the
Office of the Ombudsman (with the approval of Ombudsman Ma. Merceditas
Navarro-Gutierrez), dismissing the Lozano complaint and referring it to the
Supreme Court for appropriate action. The order was premised on the
Memorandum[1] issued on July 31, 2003 by Ombudsman Simeon Marcelo who
directed that all complaints against judges and other members of the Judiciary be
immediately dismissed and referred to the Supreme Court for appropriate action.
OUR RULING
I. The Subpoena Duces Tecum
In light of the Ombudsmans dismissal order of February 4, 2010, any
question relating to the legality and propriety of the subpoena duces tecum the
Ombudsman issued has been rendered moot and academic. The subpoena duces
tecum merely drew its life and continued viability from the underlying criminal
complaint, and the complaints dismissal belated though it may be cannot but have the
effect of rendering the need for the subpoena duces tecum academic.
As guide in the issuance of compulsory processes to Members of this Court,
past and present, in relation to complaints touching on the exercise of our judicial
functions, we deem it appropriate to discuss for the record the extent of the
Ombudsmans authority in these types of complaints.
In the appropriate case, the Office of the Ombudsman has full authority to
issue subpoenas, including subpoena duces tecum, for compulsory attendance of
witnesses and the production of documents and information relating to matters under
its investigation.[2] The grant of this authority, however, is not unlimited, as the
Ombudsman must necessarily observe and abide by the terms of the Constitution
and our laws, the Rules of Court and the applicable jurisprudence on the issuance,
service, validity and efficacy of subpoenas. Under the Rules of Court, the issuance
of subpoenas, including a subpoena duces tecum, operates under the requirements of
reasonableness and relevance.[3] For the production of documents to be reasonable
and for the documents themselves to be relevant, the matter under inquiry should, in
the first place, be one that the Ombudsman can legitimately entertain, investigate
and rule upon.
In the present case, the matter that gave rise to the issuance of a subpoena
duces tecum was a criminal complaint filed by the complainants Lozano for the
alleged violation by retired Supreme Court Chief Justice Hilario Davide, Jr. and
retired Associate Justice Ma. Alicia Austria-Martinez of Section 3(e) of R.A. 3019,
as amended (the Anti-Graft and Corrupt Practices Act).
A first step in considering whether a criminal complaint (and its attendant
compulsory processes) is within the authority of the Ombudsman to entertain (and to
issue), is to consider the nature of the powers of the Supreme Court. This Court, by
constitutional design, is supreme in its task of adjudication; judicial power is vested
solely in the Supreme Court and in such lower courts as may be established by
law. Judicial power includes the duty of the courts, not only to settle actual
controversies, but also to determine whether grave abuse of discretion amounting to
lack or excess of jurisdiction has been committed in any branch or instrumentality of
government.[4] As a rule, all decisions and determinations in the exercise of judicial
power ultimately go to and stop at the Supreme Court whose judgment is final. This
constitutional scheme cannot be thwarted or subverted through a criminal
complaint that, under the guise of imputing a misdeed to the Court and its
Members, seeks to revive and re-litigate matters that have long been laid to rest by
the Court.Effectively, such criminal complaint is a collateral attack on a judgment
of this Court that, by constitutional mandate, is final and already beyond question.
A simple jurisprudential research would easily reveal that this Court has had
the occasion to rule on the liability of Justices of the Supreme Court for violation of
Section 3(e) of R.A. 3019the very same provision that the complainants Lozano
invoke in this case.
In In re Wenceslao Laureta,[5] the client of Atty. Laureta filed a complaint
with the Tanodbayan charging Members of the Supreme Court with violation of
Section 3(e) of Republic Act No. 3019 for having knowingly, deliberately and with
bad faith rendered an unjust resolution in a land dispute. The Court unequivocally
ruled that insofar as this Court and its Divisions are concerned, a charge of violation
of the Anti-Graft and Corrupt Practices Act on the ground that such collective
decision is unjust should not prosper; the parties cannot relitigate in another forum
the final judgment of the Court, as to do so is to subordinate the Court, in the
exercise of its judicial functions, to another body.[6]
In re Joaquin T. Borromeo[7] reiterates the Laureta ruling, particularly that
(1) judgments of the Supreme Court are not reviewable; (2) administrative, civil and
criminal complaints against a judge should not be turned into substitutes for appeal;
(3) only courts may declare a judgment unjust; and (4) a situation where the
Ombudsman is made to determine whether or not a judgment of the Court is unjust
is an absurdity.The Court further discussed the requisites for the prosecution of
judges, as follows:
That is not to say that it is not possible at all to prosecute judges
for this impropriety, of rendering an unjust judgment or
interlocutory order; but, taking account of all the foregoing
considerations, the indispensable requisites are that there be a
final declaration by a competent court in some appropriate
proceeding of the manifestly unjust character of the challenged
judgment or order, and there be also evidence of malice and bad
faith, ignorance or inexcusable negligence on the part of the
judge in rendering said judgment or order.
 Thus, consistent with the nature of the power of this Court under our constitutional
scheme, only this Court not the Ombudsman can declare a Supreme Court
judgment to be unjust.
In Alzua v. Arnalot,[8] the Court ruled that judges of superior and general
jurisdiction are not liable to respond in civil action for damages, and provided this
rationale for this ruling: Liability to answer to everyone who might feel himself
aggrieved by the action of the judge would be inconsistent with the possession of
this freedom and would destroy that independence without which no judiciary can
be either respectable or useful.The same rationale applies to the indiscriminate
attribution of criminal liability to judicial officials.
Plainly, under these rulings, a criminal complaint for violation of Section
3(e) of RA 3019, based on the legal correctness of the official acts of Justices of the
Supreme Court, cannot prosper and should not be entertained. This is not to say that
Members of the Court are absolutely immune from suit during their term, for they
are not. The Constitution provides that the appropriate recourse against them is to
seek their removal from office if they are guilty of culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust.[9] Only after removal can they be criminally proceeded against for their
transgressions. While in office and thereafter, and for their official acts that do not
constitute impeachable offenses, recourses against them and their liabilities therefor
are as defined in the above rulings.
Section 22 of Republic Act No. 6770, in fact, specifically grants the
Ombudsman the authority to investigate impeachable officers, but only when such
investigation is warranted:
Section 22. Investigatory Power. The Office of the Ombudsman
shall have the power to investigate any serious misconduct in
office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for
impeachment, if warranted.
Conversely, if a complaint against an impeachable officer is unwarranted for lack of
legal basis and for clear misapplication of law and jurisprudence, the Ombudsman
should spare these officers from the harassment of an unjustified investigation. The
present criminal complaint against the retired Justices is one such case where an
investigation is not warranted, based as it is on the legal correctness of their official
acts, and the Ombudsman should have immediately recognized the criminal complaint
for what it is, instead of initially proceeding with its investigation and issuing
a subpoena duces tecum.
II. The Ombudsmans Dismissal
of the Criminal Complant
As the Ombudsmans dismissal of the criminal complaint (Oliver O. Lozano
and Evangeline Lozano-Endriano v. Hilario G. Davide, Jr., et al., OMB-C-C-09-
0527-J) clearly implied, no complete dismissal took place as the matter was
simply referred to the Supreme Court for appropriate action.
Although it was belatedly made, we cannot fault this Ombudsman action for
the reasons we have already discussed above. While both accused are now retired
from the service, the complaint against them still qualifies for exclusive consideration
by this Court as the acts complained of spring from their judicial actions while they
were with the Court. From this perspective, we therefore pass upon the prima
facie merits of the complainants Lozanos criminal complaint.
a. Grounds for the Dismissal of the Complaint
By its express terms, the criminal complaint stemmed from the
participation of the accused in the Resolution the First Division of this Court issued
in Heirs of Antonio Pael v. Court of Appeals, docketed as G.R. Nos. 133547 and
133843. The retired Chief Justice and retired Associate Justice allegedly committed
the following unlawful acts:
1) Overturning the findings of fact of the CA;
2) Stating in the Resolution that the Chin-Mallari property overlaps the
UP property, when the DENR Survey Report stated that the UP
title/property overlaps the Chin-Mallari property;
3) Issuing a Resolution, for which three Justices voted, to set aside a
Decision for which five Justices voted.
By these acts, the retired Members of this Court are being held criminally
accountable on the theory that they violated the Constitution and the law in their
ruling in the cited cases, thereby causing undue injury to the parties to these cases.
After due consideration, we dismiss the criminal complaint against retired
Chief Justice Hilario G. Davide, Jr. and retired Associate Justice Ma. Alicia Austria-
Martinez under Section 3(e) of RA 3019. We fully expound on the reasons for this
conclusion in the discussions below.
a. Contrary to the complainants position,
the Supreme Court has the power to review
the lower courts findings of fact.
 The Supreme Court is the highest court of the land with the power to
review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of the lower courts.[10] It has
the authority to promulgate rules on practice, pleadings and admission to the bar,
and suspend the operation of these rules in the interest of justice. [11] Jurisprudence
holds, too, that the Supreme Court may exercise these powers over the factual
findings of the lower courts, among other prerogatives, in the following instances:
(1) when the findings are grounded entirely on speculations, surmises, or
conjectures; (2) when the inference made is manifestly mistaken, absurd of
impossible; (3) when there is grave abuse of discretion; (4) when the judgment is
based on a misappreciation of facts; (5) when the findings of fact are conflicting; (6)
when, in making its findings, the same are contrary to the admissions of both
appellant and appellee; (7) when the findings are contrary to those of the trial
court; (8) when the findings are conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondent; and (10) when
the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record.[12]Thus, contrary to the complainants
Lozano assertions in their complaint, the Supreme Court, in the proper cases, can
and does rule on factual submissions before it, and even reverses the lower courts
factual findings when the circumstances call for this action.
b. Constitutional Provisions were misused.
The complainants Lozano appear to us to have brazenly misquoted and
misused applicable constitutional provisions to justify their case against the retired
Justices. We refer particularly to their use (or strictly, misuse) of Article X, Section
2(3) of the 1973 Constitution which they claim to be the governing rule that the
retired Justices should have followed in acting on Pael. This constitutional provision
states:
Cases heard by a division shall be decided with the
concurrence of at least five Members, but if such required
number is not obtained the case shall be decided en banc;
Provided, that no doctrine or principle of law laid down by the
Court in a decision rendered en banc or in division may be
modified or reversed except by the Court sitting en banc.[13]
For failure of the retired Justices to act according to these terms, the complainants
claim that the former subverted the Constitution by reversing, by a vote of a majority
of only three members, the decision of the First Division unanimously approved by
its full membership of five members.
Had the complainants bothered to carefully consider the facts and
developments in Pael and accordingly related these to the applicable constitutional
provision, they would have discovered that Paelwas decided in 2003 when the 1987
Constitution, not the 1973 Constitution, was the prevailing Charter.They then
would have easily learned of the manner cases are heard and decided by Division
before the Supreme Court under the 1987 Constitution. Section 4(3), Article VIII of
this Constitution provides:
Cases or matters heard by a division shall be decided
or resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on the
issues in the case and voted thereon, and in no case, without
the concurrence of at least three of such Members. When the
required number is not obtained, the case shall be decided en
banc; Provided, that no doctrine or principle of law laid down by
the court in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc.
(Emphasis supplied.)
This was the provision that governed in 2003 and still governs to this day. Thus, the
complainants argument and basis for their criminal complaint that in ruling on a
motion for reconsideration, all five members of the Division should concur is totally
wrong.
c. The elements of the offense charged are
not sufficiently alleged in the complaint
A public official can violate Section 3(e) of Republic Act No. 3019[14] in
two ways: (1) by causing undue injury to any party, including the Government; or (2)
by giving any private party any unwarranted benefit, advantage or preference;[15] in
either case, these acts must be committed with manifest partiality, evident bad faith,
or gross and inexcusable negligence.
Partiality is defined as a bias or disposition to see and report matters as
wished for, rather than as they are. Bad faith connotes not only bad judgment or
negligence, but also a dishonest purpose, a conscious wrongdoing, or a breach of duty
amounting to fraud. Gross negligence, on the other hand, is characterized by the want
of even slight care, acting or omitting to act in a situation where there is a duty to act,
not inadvertently but willfully and intentionally, with a conscious indifference to
consequences as far as other persons are concerned.[16]
The criminal complaint in this case failed to allege the facts and
circumstances showing that the retired Justices acted with partiality, bad faith or
negligence. A judicial officers act in reviewing the findings of fact in a decision and
voting for its reversal cannot by itself constitute a violation of Section 3(e) of
Republic Act No. 3019 in the absence of facts, alleged and proven, demonstrating a
dishonest purpose, conscious partiality, extrinsic fraud, or any wrongdoing on his or
her part. A complainants mere disagreement with the magistrates own conclusions,
to be sure, does not justify a criminal charge under Section 3(e) against the latter. In
the absence of alleged and proven particular acts of manifest partiality, evident bad
faith or gross inexcusable negligence, good faith and regularity are generally
presumed in the performance of official duties by public officers.[17]
For the criminal complaints fatal omissions and resultant failure to allege
a prima facie case, it rightfully deserves immediate dismissal.
III. The Complainants Potential Liability
for Filing the Ombudsman Complaint
In light of the above conclusions and under the attendant circumstances of
the criminal complaints, we cannot avoid considering whether the complainants
Lozano acted properly as members of the Bar, as officers of this Court, and as
professionals governed by norms of ethical behavior, in filing their complaint.
In their criminal complaint, the complainants gave a slanted view of the
powers of this Court to suit their purposes; for these same purposes, they wrongly
cited and misapplied the provisions of the Constitution, not just any ordinary statute.
As lawyers, the complainants must be familiar and well acquainted with the
fundamental law of the land, and are charged with the duty to apply the
constitutional provisions in light of their prevailing jurisprudential interpretation. As
law practitioners active in the legal and political circles, the complainants can hardly
be characterized as unknowing in their misuse and misapplication of constitutional
provisions. They should, at the very least, know that the 1973 Constitution and its
provisions have been superseded by the 1987 Constitution, and that they cannot
assail invoking the 1973 Constitution the judicial acts of members of the Supreme
Court carried out in 2003 when the 1987 Constitution was in effect. Their misuse of
the Constitution is made more reprehensible when the overriding thrust of their
criminal complaint is considered; they used the 1973 provisions to falsely attribute
malice and injustice to the Supreme Court and its Members.
In our view, the complainants errors do not belong to the genre of plain
and simple errors that lawyers commit in the practice of their profession. Their plain
disregard, misuse and misrepresentation of constitutional provisions constitute
serious misconduct that reflects on their fitness for continued membership in the
Philippine Bar. At the very least, their transgressions are blatant violations of Rule
10.02 of the Code of Professional Responsibility, which provides:
Rule 10.02. A lawyer shall not knowingly misquote or
misrepresent the contents of a paper, the language or the
argument of opposing counsel, or the text of a decision or
authority, or knowingly cite as a law a provision already
rendered inoperative by repeal or amendment, or assert as a
fact that which has not been proved.(Emphasis provided.)
To emphasize the importance of requiring lawyers to act candidly and in good faith,
an identical provision is found in Cannon 22 of the Canons of Professional
Ethics. Moreover, lawyers are sworn to do no falsehood, nor consent to the doing of
any in court before they are even admitted to the
Bar. All these the complainants appear to have seriously violated.
In the interest of due process and fair play, the complainants Lozano
should be heard, in relation to their criminal complaint before the Ombudsman
against retired Chief Justice Hilario G. Davide, Jr. and retired Associate Justice Ma.
Alicia Austria-Martinez, on why they should not be held accountable and
accordingly penalized for violations of their duties as members of the Bar and
officers of this Court, and of the ethics of the legal profession.
WHEREFORE, premises considered, we DISMISS the criminal complaint
entitled Oliver O. Lozano, et al. v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J
for utter lack of merit, and DECLARE as MOOT and ACADEMIC the question of
compliance with the subpoena duces tecum dated January 11, 2010 that the
Ombudsman issued against this Court.
We hereby ORDER the complainants Atty. Oliver O. Lozano and Atty.
Evangeline Lozano-Endriano to EXPLAIN IN WRITING to this Court, within a
non-extendible period of 15 days from receipt of this Resolution, why they should not
be penalized as members of the Bar and as officers of this Court, for their open
disregard of the plain terms of the Constitution and the applicable laws and
jurisprudence, and their misuse and misrepresentation of constitutional provisions in
their criminal complaint before the Office of the Ombudsman, entitled Oliver O.
Lozano, et al. v. Hilario G. Davide, Jr., et al., OMB-C-C-09-0527-J.
SO ORDERED.
G.R. No. 162230
The Treaty of Peace with Japan, insofar as it barred future claims such as
those asserted by plaintiffs in these actions, exchanged full
compensation of plaintiffs for a future peace. History has vindicated the
wisdom of that bargain. And while full compensation for plaintiffs'
hardships, in the purely economic sense, has been denied these former
prisoners and countless other survivors of the war, the immeasurable
bounty of life for themselves and their posterity in a free society and in a
more peaceful world services the debt.[1]
There is a broad range of vitally important areas that must be regularly decided by the
Executive Department without either challenge or interference by the Judiciary. One such area
involves the delicate arena of foreign relations. It would be strange indeed if the courts and the
executive spoke with different voices in the realm of foreign policy. Precisely because of the
nature of the questions presented, and the lapse of more than 60 years since the conduct
complained of, we make no attempt to lay down general guidelines covering other situations
not involved here, and confine the opinion only to the very questions necessary to reach a
decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with
an application for the issuance of a writ of preliminary mandatory injunction against the Office
of the Executive Secretary, the Secretary of the Department of Foreign Affairs (DFA), the
Secretary of the Department of Justice (DOJ), and the Office of the Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-
profit organization registered with the Securities and Exchange Commission,
established for the purpose of providing aid to the victims of rape by Japanese
military forces in the Philippines during the Second World War.
Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned, and civilians were publicly
tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held
them in houses or cells, where they were repeatedly raped, beaten, and abused by Japanese
soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent their
lives in misery, having endured physical injuries, pain and disability, and mental and emotional
suffering.[2]
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese
officials and military officers who ordered the establishment of the comfort women stations in
the Philippines. However, officials of the Executive Department declined to assist the
petitioners, and took the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japans compliance with the Peace Treaty
between the Philippinesand Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of discretion in
refusing to espouse their claims for the crimes against humanity and war crimes committed
against them; and (b) compel the respondents to espouse their claims for official apology and
other forms of reparations against Japan before the International Court of Justice (ICJ) and
other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort women
system established by Japan, and the brutal rape and enslavement of petitioners constituted a
crime against humanity,[3] sexual slavery,[4] and torture.[5] They allege that the prohibition
against these international crimes is jus cogens norms from which no derogation is possible; as
such, in waiving the claims of Filipina comfort women and failing to espouse their complaints
against Japan, the Philippine government is in breach of its legal obligation not to afford
impunity for crimes against humanity. Finally, petitioners assert that the Philippine
governments acceptance of the apologies made by Japan as well as funds from the Asian
Womens Fund (AWF) were contrary to international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the
war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.[6]
Article 14 of the Treaty of Peace[7] provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers
for the damage and suffering caused by it during the
war. Nevertheless it is also recognized that the
resources of Japan are not presently sufficient, if it is to
maintain a viable economy, to make complete
reparation for all such damage and suffering and at the
present time meet its other obligations.
b) Except as otherwise provided in the present Treaty,
the Allied Powers waive all reparations claims of the
Allied Powers, other claims of the Allied Powers and
their nationals arising out of any actions taken by Japan
and its nationals in the course of the prosecution of the
war, and claims of the Allied Powers for direct military
costs of occupation.
In addition, respondents argue that the apologies made by Japan[8] have been
satisfactory, and that Japan had addressed the individual claims of the women through the
atonement money paid by the Asian Womens Fund.
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In December
1937, Japanese military forces captured the city of Nanking in China and began a barbaric
campaign of terror known as the Rape of Nanking, which included the rapes and murders of an
estimated 20,000 to 80,000 Chinese women, including young girls, pregnant mothers, and
elderly women.[9]
In reaction to international outcry over the incident, the Japanese government
sought ways to end international condemnation[10] by establishing the comfort women
system. Under this system, the military could simultaneously appease soldiers' sexual appetites
and contain soldiers' activities within a regulated environment.[11] Comfort stations would also
prevent the spread of venereal disease among soldiers and discourage soldiers from raping
inhabitants of occupied territories.[12]
Daily life as a comfort woman was unmitigated misery.[13] The military forced victims into
barracks-style stations divided into tiny cubicles where they were forced to live, sleep, and have
sex with as many 30 soldiers per day.[14] The 30 minutes allotted for sexual relations with each
soldier were 30-minute increments of unimaginable horror for the women.[15] Disease was
rampant.[16] Military doctors regularly examined the women, but these checks were carried out
to prevent the spread of venereal diseases; little notice was taken of the frequent cigarette burns,
bruises, bayonet stabs and even broken bones inflicted on the women by soldiers.
Fewer than 30% of the women survived the war.[17] Their agony continued in having to suffer
with the residual physical, psychological, and emotional scars from their former lives. Some
returned home and were ostracized by their families. Some committed suicide. Others, out of
shame, never returned home.[18]
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were through a
series of lawsuits, discussion at the United Nations (UN), resolutions by various nations, and
the Womens International Criminal Tribunal. The Japanese government, in turn, responded
through a series of public apologies and the creation of the AWF.[19]
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit
in Japan by former comfort women against the Japanese government. The Tokyo District
Court however dismissed their case.[20] Other suits followed,[21] but the Japanese government
has, thus far, successfully caused the dismissal of every case.[22]
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of
the comfort women system brought their claims before the United States (US). On September
18, 2000, 15 comfort women filed a class action lawsuit in the US District Court for the
District of Columbia[23] "seeking money damages for [allegedly] having been subjected to
sexual slavery and torture before and during World War II," in violation of "both positive and
customary international law." The case was filed pursuant to the Alien Tort Claims Act
(ATCA),[24] which allowed the plaintiffs to sue the Japanese government in a US federal
district court.[25] On October 4, 2001, the district court dismissed the lawsuit due to lack of
jurisdiction over Japan, stating that [t]here is no question that this court is not the appropriate
forum in which plaintiffs may seek to reopen x x x discussions nearly half a century later x x x
[E]ven if Japan did not enjoy sovereign immunity, plaintiffs' claims are non-justiciable and
must be dismissed.
The District of Columbia Court of Appeals affirmed the lower court's dismissal of
the case.[26] On appeal, the US Supreme Court granted the womens petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and remanded
the case.[27] On remand, the Court of Appeals affirmed its prior decision, noting that much as
we may feel for the plight of the appellants, the courts of the US simply are not authorized to
hear their case.[28] The women again brought their case to the US Supreme Court which denied
their petition for writ of certiorari on February 21, 2006.
Efforts at the United
Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by
Japan (KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking
for assistance in investigating crimes committed by Japan against Korean women and seeking
reparations for former comfort women.[29] The UNHRC placed the issue on its agenda and
appointed Radhika Coomaraswamy as the issue's special investigator. In 1996,
Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean women
to act as sex slaves for the imperial army, and made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the
Japanese Imperial Army during the Second World War was
a violation of its obligations under international law and
accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese military sexual
slavery according to principles outlined by the Special
Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the right to
restitution, compensation and rehabilitation for victims of
grave violations of human rights and fundamental freedoms.
A special administrative tribunal for this purpose should be
set up with a limited time-frame since many of the victims
are of a very advanced age;
 (c) Make a full disclosure of documents and materials in its possession
with regard to comfort stations and other related activities of
the Japanese Imperial Army during the Second World War;
(d) Make a public apology in writing to individual women who have
come forward and can be substantiated as women victims of
Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to
reflect historical realities;
(f) Identify and punish, as far as possible, perpetrators involved in the
recruitment and institutionalization of comfort stations during
the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, also presented a report to the Sub-Committee
on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery
and Slavery-like Practices During Armed Conflict. The report included an appendix entitled
An Analysis of the Legal Liability of the Government of Japan for 'Comfort Women Stations'
established during the Second World War,[30] which contained the following findings:
68. The present report concludes that the Japanese Government remains
liable for grave violations of human rights and humanitarian law,
violations that amount in their totality to crimes against humanity. The
Japanese Governments arguments to the contrary, including arguments
that seek to attack the underlying humanitarian law prohibition of
enslavement and rape, remain as unpersuasive today as they were when
they were first raised before the Nuremberg war crimes tribunal more
than 50 years ago. In addition, the Japanese Governments argument
that Japan has already settled all claims from the Second World War
through peace treaties and reparations agreements following the war
remains equally unpersuasive. This is due, in large part, to the failure
until very recently of the Japanese Government to admit the extent of the
Japanese militarys direct involvement in the establishment and
maintenance of these rape centres. The Japanese Governments silence
on this point during the period in which peace and reparations
agreements between Japan and other Asian Governments were being
negotiated following the end of the war must, as a matter of law and
justice, preclude Japan from relying today on these peace treaties to
extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the
cessation of hostilities is a testament to the degree to which the lives of
women continue to be undervalued. Sadly, this failure to address crimes
of a sexual nature committed on a massive scale during the Second
World War has added to the level of impunity with which similar crimes
are committed today. The Government of Japan has taken some steps to
apologize and atone for the rape and enslavement of over 200,000
women and girls who were brutalized in comfort stations during the
Second World War. However, anything less than full and unqualified
acceptance by the Government of Japan of legal liability and the
consequences that flow from such liability is wholly inadequate. It must
now fall to the Government of Japan to take the necessary final steps to
provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide the reparations
sought.
Women's International W
ar Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a people's tribunal
established by a number of Asian women and human rights organizations, supported by an
international coalition of non-governmental organizations.[31] First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to adjudicate Japan's military sexual violence, in
particular the enslavement of comfort women, to bring those responsible for it to justice, and to
end the ongoing cycle of impunity for wartime sexual violence against women.
After examining the evidence for more than a year, the tribunal issued its verdict
on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of women.[32] It bears stressing,
however, that although the tribunal included prosecutors, witnesses, and judges, its judgment
was not legally binding since the tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six co-
sponsor representatives, introduced House Resolution 121 which called for Japanese action in
light of the ongoing struggle for closure by former comfort women. The Resolution was
formally passed on July 30, 2007,[33] and made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of
Japan (1) should formally acknowledge, apologize, and accept historical
responsibility in a clear and unequivocal manner for its Imperial Armed
Forces' coercion of young women into sexual slavery, known to the
 world as comfort women, during its colonial and wartime occupation of
Asia and the Pacific Islands from the 1930s through the duration of
World War II; (2) would help to resolve recurring questions about the
sincerity and status of prior statements if the Prime Minister of Japan
were to make such an apology as a public statement in his official
capacity; (3) should clearly and publicly refute any claims that the sexual
enslavement and trafficking of the comfort women for the Japanese
Imperial Army never occurred; and (4) should educate current and
future generations about this horrible crime while following the
recommendations of the international community with respect to the
comfort women.[34]
In December 2007, the European Parliament, the governing body of the European
Union, drafted a resolution similar to House Resolution 121.[35] Entitled, Justice for Comfort
Women, the resolution demanded: (1) a formal acknowledgment of responsibility by the
Japanese government; (2) a removal of the legal obstacles preventing compensation; and (3)
unabridged education of the past. The resolution also stressed the urgency with
which Japanshould act on these issues, stating: the right of individuals to claim reparations
against the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international law, should be
prioritized, taking into account the age of the survivors.
The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada's resolution demands the Japanese government to issue a
formal apology, to admit that its Imperial Military coerced or forced hundreds of thousands of
women into sexual slavery, and to restore references in Japanese textbooks to its war
crimes.[36] The Dutch parliament's resolution calls for the Japanese government to uphold the
1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms Parliament also produced
a report in November, 2008 entitled, "Global Security: Japan and Korea" which concluded
that Japan should acknowledge the pain caused by the issue of comfort women in order to
ensure cooperation between Japan and Korea.
Statements of Remorse
made by representatives of
the Japanese government
Various officials of the Government of Japan have issued the following public
statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of
wartime "comfort women" since December 1991. I wish to announce
the findings as a result of that study.
As a result of the study which indicates that comfort stations were
operated in extensive areas for long periods, it is apparent that there
existed a great number of comfort women. Comfort stations were
operated in response to the request of the military authorities of the day.
The then Japanese military was, directly or indirectly, involved in the
establishment and management of the comfort stations and the transfer
of comfort women. The recruitment of the comfort women was
conducted mainly by private recruiters who acted in response to the
request of the military. The Government study has revealed that in many
cases they were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military personnel
directly took part in the recruitments. They lived in misery at comfort
stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the
war areas, excluding those from Japan, those from
the Korean Peninsula accounted for a large part.
The Korean Peninsula was under Japanese rule in those days, and their
recruitment, transfer, control, etc., were conducted generally against their
will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military
authorities of the day, that severely injured the honor and dignity of
many women. The Government of Japan would like to take this
opportunity once again to extend its sincere apologies and remorse to all
those, irrespective of place of origin, who suffered immeasurable pain
and incurable physical and psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to
consider seriously, while listening to the views of learned circles, how
best we can express this sentiment.
We shall face squarely the historical facts as described above instead of
evading them, and take them to heart as lessons of history. We hereby
reiterated our firm determination never to repeat the same mistake by
forever engraving such issues in our memories through the study and
teaching of history.
As actions have been brought to court in Japan and interests have been
shown in this issue outside Japan, the Government of Japan shall
 continue to pay full attention to this matter, including private researched
related thereto.
b) Prime Minister Tomiichi Murayamas Statement in 1994
On the issue of wartime comfort women, which seriously stained the
honor and dignity of many women, I would like to take this opportunity
once again to express my profound and sincere remorse and apologies
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese
military authorities at that time, was a grave affront to the honor and
dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere
apologies and remorse to all the women who endured immeasurable and
painful experiences and suffered incurable physical and psychological
wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities,
with feelings of apology and remorse, should face up squarely to its past
history and accurately convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts of
aggression that occurred in modern world history, and recognizing
that Japan carried out such acts in the past and inflicted suffering on the
people of other countries, especially in Asia, the Members of this House
hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and
recently as well, and to the press. I have been consistent. I will stand by
the Kono Statement. This is our consistent position. Further, we have
been apologizing sincerely to those who suffered immeasurable pain and
incurable psychological wounds as comfort women. Former Prime
Ministers, including Prime Ministers Koizumi and Hashimoto, have
issued letters to the comfort women. I would like to be clear that I carry
the same feeling. This has not changed even slightly. (Excerpt from
Remarks by Prime Minister Abe at an Interview by NHK, March 11,
2007).
I am apologizing here and now. I am apologizing as the Prime Minister
and it is as stated in the statement by the Chief Cabinet Secretary Kono.
(Excerpt from Remarks by Prime Minister Abe at the Budget
Committee, the House of Councilors, the Diet of Japan, March 26,
2007).
I am deeply sympathetic to the former comfort women who suffered
hardships, and I have expressed my apologies for the extremely
agonizing circumstances into which they were placed. (Excerpt from
Telephone Conference by Prime Minister Abe to President George W.
Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people
who were taken as wartime comfort women. As a human being, I would
like to express my sympathies, and also as prime minister of Japan I
need to apologize to them. My administration has been saying all along
that we continue to stand by the Kono Statement. We feel responsible
for having forced these women to go through that hardship and pain as
comfort women under the circumstances at the time. (Excerpt from an
interview article "A Conversation with Shinzo Abe" by the Washington
Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my heart goes out
in sympathy to all those who suffered extreme hardships as comfort
women; and I expressed my apologies for the fact that they were forced
to endure such extreme and harsh conditions. Human rights are violated
in many parts of the world during the 20th Century; therefore we must
work to make the 21st Century a wonderful century in which no human
rights are violated. And the Government of Japan and I wish to make
significant contributions to that end. (Excerpt from Prime Minister Abe's
remarks at the Joint Press Availability after the summit meeting at Camp
David between Prime Minister Abe and President Bush, April 27,
2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the
government's concrete attempt to address its moral responsibility by offering monetary
compensation to victims of the comfort women system.[37] The purpose of the AWF was to
show atonement of the Japanese people through expressions of apology and remorse to the
former wartime comfort women, to restore their honor, and to demonstrate Japans strong
respect for women.[38]
The AWF announced three programs for former comfort women who applied for assistance:
(1) an atonement fund paying 2 million (approximately $20,000) to each woman; (2) medical
and welfare support programs, paying 2.5-3 million ($25,000-$30,000) for each woman; and
(3) a letter of apology from the Japanese Prime Minister to each woman. Funding for the
program came from the Japanese government and private donations from the Japanese
people. As of March 2006, the AWF provided 700 million (approximately $7 million) for
these programs in South Korea, Taiwan, and the Philippines; 380 million (approximately $3.8
million) in Indonesia; and 242 million (approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women. Over the
next five years, these were implemented by the Department of Social Welfare and
Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners claims for official
apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law
Perspective, the Executive
Department has the
exclusive prerogative to
determine whether to
espouse petitioners claims
against Japan.
Baker v. Carr[39] remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it, or the
impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by
various departments on question.
In Taada v. Cuenco,[40] we held that political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch of
the government. It is concerned with issues dependent upon the wisdom, not legality of a
particular measure."
Certain types of cases often have been found to present political questions.[41] One such
category involves questions of foreign relations. It is well-established that "[t]he conduct of the
foreign relations of our government is committed by the Constitution to the executive and
legislative--'the political'--departments of the government, and the propriety of what may be
done in the exercise of this political power is not subject to judicial inquiry or decision."[42] The
US Supreme Court has further cautioned that decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy. They are
and should be undertaken only by those directly responsible to the
people whose welfare they advance or imperil. They are decisions of a
kind for which the Judiciary has neither aptitude, facilities nor
responsibility.[43]
To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive
agreements.[44] However, the question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations matter, the authority
for which is demonstrably committed by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations against Japan in the
Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Neither
could petitioners herein assail the said determination by the Executive Department via the
instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held that
[t]he President is the sole organ of the nation in its external relations, and its sole representative
with foreign relations.
It is quite apparent that if, in the maintenance of our international
relations, embarrassment -- perhaps serious embarrassment -- is to be
avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the
international field must often accord to the President a degree of
 discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not
Congress, has the better opportunity of knowing the conditions which
prevail in foreign countries, and especially is this true in time of war. He
has his confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v.
Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Punos dissent in Secretary of Justice v.
Lantion:[48]
x x x The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information
and can decide with decisiveness. x x x It is also the President who
possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the world. He
has also unlimited access to ultra-sensitive military intelligence data. In
fine, the presidential role in foreign affairs is dominant and the President
is traditionally accorded a wider degree of discretion in the conduct of
foreign affairs. The regularity, nay, validity of his actions are adjudged
under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations, forfeiture
of confidence, national embarrassment and a plethora of other problems
with equally undesirable consequences.
The Executive Department has determined that taking up petitioners cause would be inimical
to our countrys foreign policy interests, and could disrupt our relations with Japan, thereby
creating serious implications for stability in this region. For us to overturn the Executive
Departments determination would mean an assessment of the foreign policy judgments by a
coordinate political branch to which authority to make that judgment has been constitutionally
committed.
In any event, it cannot reasonably be maintained that the Philippine government was without
authority to negotiate the Treaty of Peace with Japan. And it is equally true that, since time
immemorial, when negotiating peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own,
treating them as national assets, and as counters, `chips', in international
bargaining. Settlement agreements have lumped, or linked, claims
deriving from private debts with others that were intergovernmental in
origin, and concessions in regard to one category of claims might be set
off against concessions in the other, or against larger political
considerations unrelated to debts.[49]
Indeed, except as an agreement might otherwise provide, international settlements generally
wipe out the underlying private claims, thereby terminating any recourse under domestic
law. In Ware v. Hylton,[50] a case brought by a British subject to recover a debt confiscated by
the Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and
that after peace is concluded, neither the matter in dispute, nor the
conduct of either party, during the war, can ever be revived, or brought
into contest again. All violences, injuries, or damages sustained by the
government, or people of either, during the war, are buried in oblivion;
and all those things are implied by the very treaty of peace; and therefore
not necessary to be expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or extinguished, during
the war, by any of the United States, could only be provided for by the
treaty of peace; and if there had been no provision, respecting these
subjects, in the treaty, they could not be agitated after the treaty, by the
British government, much less by her subjects in courts of justice.
(Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly
nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by
nationals of one country against the government of another country are
sources of friction between the two sovereigns. United States v. Pink,
315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve
these difficulties, nations have often entered into agreements settling the
claims of their respective nationals. As one treatise writer puts it,
international agreements settling claims by nationals of one state against
the government of another are established international practice
reflecting traditional international theory. L. Henkin, Foreign Affairs and
the Constitution 262 (1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign authority to settle the claims
of its nationals against foreign countries. x x x Under such agreements,
the President has agreed to renounce or extinguish claims of United
States nationals against foreign governments in return for lump-sum
payments or the establishment of arbitration procedures. To be sure,
many of these settlements were encouraged by the United
 States claimants themselves, since a claimant's only hope of obtaining
any payment at all might lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also undisputed that the
United States has sometimes disposed of the claims of its citizens
without their consent, or even without consultation with them, usually
without exclusive regard for their interests, as distinguished from those
of the nation as a whole. Henkin, supra, at 262-263.
Accord, Restatement (Second) of Foreign Relations Law of the United
States 213 (1965) (President may waive or settle a claim against a
foreign state x x x [even] without the consent of the [injured] national). It
is clear that the practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression during
the war, not for the payment of adequate reparations, but for security purposes. The treaty
sought to prevent the spread of communism in Japan, which occupied a strategic position in
the Far East. Thus, the Peace Treaty compromised individual claims in the collective interest of
the free world.
This was also the finding in a similar case involving American victims of Japanese slave labor
during the war.[52] In a consolidated case in the Northern District of California,[53] the court
dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan,[54] because of the
following policy considerations:
The official record of treaty negotiations establishes that a fundamental
goal of the agreement was to settle the reparations issue once and for all.
As the statement of the chief United States negotiator, John Foster
Dulles, makes clear, it was well understood that leaving open the
possibility of future claims would be an unacceptable impediment
to a lasting peace:
Reparation is usually the most controversial
aspect of peacemaking. The present peace is no
exception.
On the one hand, there are claims both vast and
just. Japan's aggression caused tremendous cost,
losses and suffering.
On the other hand, to meet these claims, there
stands a Japan presently reduced to four home
islands which are unable to produce the food its
people need to live, or the raw materials they need
to work. x x x
The policy of the United States that Japanese liability for reparations
should be sharply limited was informed by the experience of six years of
United States-led occupation of Japan. During the occupation the
Supreme Commander of the Allied Powers (SCAP) for the region,
General Douglas MacArthur, confiscated Japanese assets in conjunction
with the task of managing the economic affairs of the vanquished nation
and with a view to reparations payments. It soon became clear
that Japan's financial condition would render any aggressive
reparations plan an exercise in futility. Meanwhile, the importance
of a stable, democratic Japan as a bulwark to communism in the
region increased. At the end of 1948, MacArthur expressed the view
that [t]he use of reparations as a weapon to retard the reconstruction of a
viable economy in Japan should be combated with all possible means
and recommended that the reparations issue be settled finally and
without delay.
That this policy was embodied in the treaty is clear not only from the
negotiations history but also from the Senate Foreign Relations
Committee report recommending approval of the treaty by the Senate.
The committee noted, for example:
Obviously insistence upon the payment of
reparations in any proportion commensurate with
the claims of the injured countries and their
nationals would wreck Japan's economy, dissipate
any credit that it may possess at present, destroy
the initiative of its people, and create misery and
chaos in which the seeds of discontent and
communism would flourish. In short, [it] would
be contrary to the basic purposes and policy of x x
x the United States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general
principle and particularly here, where such an extraordinary length of time has lapsed between
the treatys conclusion and our consideration the Executive must be given ample discretion to
assess the foreign policy considerations of espousing a claim against Japan, from the standpoint
of both the interests of the petitioners and those of the Republic, and decide on that basis if
apologies are sufficient, and whether further steps are appropriate or necessary.
The Philippines is not
under any international
obligation to espouse
petitioners claims.

In the international sphere, traditionally, the only means available for individuals to bring a
claim within the international legal system has been when the individual is able to persuade a
government to bring a claim on the individuals behalf.[55] Even then, it is not the individuals
rights that are being asserted, but rather, the states own rights. Nowhere is this position more
clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the
1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his behalf, a
State is in reality asserting its own right to ensure, in the person of its
subjects, respect for the rules of international law. The question,
therefore, whether the present dispute originates in an injury to a private
interest, which in point of fact is the case in many international disputes,
is irrelevant from this standpoint. Once a State has taken up a case on
behalf of one of its subjects before an international tribunal, in the eyes
of the latter the State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the State, reliance on the
right is within the absolute discretion of states, and the decision whether to exercise the
discretion may invariably be influenced by political considerations other than the legal merits
of the particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by
whatever means and to whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the natural or legal person
on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law. All
they can do is resort to national law, if means are available, with a view
to furthering their cause or obtaining redress. The municipal legislator
may lay upon the State an obligation to protect its citizens abroad, and
may also confer upon the national a right to demand the performance of
that obligation, and clothe the right with corresponding sanctions.
However, all these questions remain within the province of municipal
law and do not affect the position internationally.[58] (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will be
granted, to what extent it is granted, and when will it cease. It retains, in this respect, a
discretionary power the exercise of which may be determined by considerations of a political
or other nature, unrelated to the particular case.
The International Law Commissions (ILCs) Draft Articles on Diplomatic
Protection fully support this traditional view. They (i) state that "the right of diplomatic
protection belongs to or vests in the State,[59] (ii) affirm its discretionary nature by clarifying
that diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii) stress that the
state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]
It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured.[62] However, at present, there is no
sufficient evidence to establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad.[63] Though, perhaps desirable, neither state
practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a
moral and not a legal duty, and there is no means of enforcing its fulfillment.[64]
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible
as well as legally prohibited under contemporary international law.[65] However, petitioners
take quite a theoretical leap in claiming that these proscriptions automatically imply that that
the Philippines is under a non-derogable obligation to prosecute international crimes,
particularly since petitioners do not demand the imputation of individual criminal liability, but
seek to recover monetary reparations from the state of Japan. Absent the consent of states, an
applicable treaty regime, or a directive by the Security Council, there is no non-derogable duty
to institute proceedings against Japan. Indeed, precisely because of states reluctance to
directly prosecute claims against another state, recent developments support the
modern trend to empower individuals to directly participate in suits against
perpetrators of international crimes.[66] Nonetheless, notwithstanding an array of General
Assembly resolutions calling for the prosecution of crimes against humanity and the strong
policy arguments warranting such a rule, the practice of states does not yet support the present
existence of an obligation to prosecute international crimes.[67] Of course a customary duty of
prosecution is ideal, but we cannot find enough evidence to reasonably assert its existence. To
the extent that any state practice in this area is widespread, it is in the practice of granting
amnesties, immunity, selective prosecution, or de facto impunity to those who commit crimes
against humanity.[68]
Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to
prosecute perpetrators of international crimes is an erga omnes obligation or has attained the
status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a
legal term describing obligations owed by States towards the community of states as a
whole. The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of
a State towards the international community as a whole, and those
arising vis--vis another State in the field of diplomatic protection. By
 their very nature, the former are the concern of all States. In view of the within our power to order the Executive Department to take up the petitioners cause. Ours is
importance of the rights involved, all States can be held to have a legal only the power to urge and exhort the Executive Department to take up petitioners cause.
interest in their protection; they are obligations erga omnes.
WHEREFORE, the Petition is hereby DISMISSED.
Such obligations derive, for example, in contemporary international law, SO ORDERED.
from the outlawing of acts of aggression, and of genocide, as also from
the principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general
international law others are conferred by international instruments of a
universal or quasi-universal character.

The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing a
belief in the emergence of a value-based international public order. However, as is so often the
case, the reality is neither so clear nor so bright. Whatever the relevance of obligations erga
omnes as a legal concept, its full potential remains to be realized in practice.[69]
The term is closely connected with the international law concept of jus cogens. In international
law, the term jus cogens (literally, compelling law) refers to norms that command peremptory
authority, superseding conflicting treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not admit derogation, and can be modified
only by general international norms of equivalent authority.[70]

Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory norms
began to attract greater scholarly attention with the publication of Alfred von Verdross's
influential 1937 article, Forbidden Treaties in International Law.[72] The recognition of jus
cogens gained even more force in the 1950s and 1960s with the ILCs preparation of the
Vienna Convention on the Law of Treaties (VCLT).[73] Though there was a consensus that
certain international norms had attained the status of jus cogens,[74] the ILC was unable to reach
a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that there is not as yet any generally accepted criterion by which to identify a
general rule of international law as having the character of jus cogens.[75] In a commentary
accompanying the draft convention, the ILC indicated that the prudent course seems to be to x
x x leave the full content of this rule to be worked out in State practice and in the jurisprudence
of international tribunals.[76] Thus, while the existence of jus cogens in international law is
undisputed, no consensus exists on its substance,[77] beyond a tiny core of principles and
rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin
to comprehend the unimaginable horror they underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to challenge those that have
offended them before appropriate fora. Needless to say, our government should take the lead in
protecting its citizens against violation of their fundamental human rights. Regrettably, it is not