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Republic of the Philippines


Supreme Court
Manila
EN BANC

ARTURO M. DE CASTRO,
Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL


(JBC) and PRESIDENT GLORIA
MACAPAGAL ARROYO,
Respondents.
BRION, J.:

I AGREE with the conclusion that the President can appoint the Chief Justice and
Members of the Supreme Court two months before a presidential election up to the
end of the Presidents term, but DISAGREE with the conclusion that the authority
to appoint extends to the whole Judiciary.

I. Prefatory Statement

The debate, in and out of this Court, on the issues these consolidated cases pose,
have been differently described to be at varying levels of severity and intensity. What
we in Court do know is the multiplicity of petitions and interventions filed,
generating arguments of varying shades of validity. Sad but true, what we need in
considering all these submissions is simplification and focus on the critical issues,
not the mass of opinions that merely pile on top of one another. Based on this
standard, this Opinion shall endeavor to be brief, succinct but clear, and may not be
the academic treatise lay readers and even lawyers customarily expect from the
Court.

The constitutional provisions whose interpretation and application are


disputed (the disputed provisions) are Section 15, Article VII (the Article on the
Executive Department) and Sections 4(1) and 9 of Article VIII (on the Judicial
Department). Not often mentioned but critical to the consideration of the disputed
provisions is Section 8, Article VIII on the Judicial and Bar Council (JBC) the
entity whose acts are under scrutiny in the dispute.
Section 15 of Article VII provides:
Section 15. Two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety.

On the other hand, the relevant Judicial Department provisions read:

Section 4(1) The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of three,
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five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.

xxx

Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the Congress as ex
officio Members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector.

(2) The regular members of the Council shall be appointed by the President for
a term of four years with the consent of the Commission on Appointments. Of the
Members first appointed, the representative of the Integrated Bar shall serve for four
years, the professor of law for three years, the retired justice for two years, and the
representative of the private sector for one year.

(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the
Council and shall keep a record of its proceedings.

(4) The regular members of the Council shall receive such emoluments as may
be determined by the Supreme Court. The Supreme Court shall provide in its annual
budget the appropriations of the Council.

(5) The Council shall have the principal functions of recommending


appointees to the Judiciary. It may exercise other functions and duties as the
Supreme Court may assign to it.

Section 9. The Members of the Supreme Court and the judges of the lower
courts shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy. Such appointment needs
no confirmation.

For the lower courts, the President shall issue the appointment within ninety
days from the submission of the list.
These provisions are quoted together to stress the role the JBC plays in the
appointment process, and that it is effectively an adjunct of the Supreme Court: the
JBC is under the supervision of the Court, but is fully independent in undertaking
its main function; the Chief Justice is the Chair, with the Clerk of the Supreme Court
as the Secretary; the emoluments of JBC members are determined by the Supreme
Court with the JBC budget a part of the Supreme Court budget; and the Supreme
Court may assign functions and duties to the JBC.

II. The Questions of Standing & Justiciability

I completely agree with the ponencias ruling on the parties standing,


their locus standi, to bring their petitions and interventions in their capacities as
citizens and lawyers who, as lawyers, stand to be affected by our ruling or, as citizens,
by the impact of our ruling on the nation and the all-important electoral exercise we
shall hold in May 2010. Jurisprudence is replete with precedents on the liberal
appreciation of the locus standi rule on issues that are of transcendental concern to
the nation,[1] and the petitioners very well qualify under these rulings. In this
sense, locus standi is not a critical issue in the present case. In fact, the concern
voiced out during the Courts deliberations, was more on how participation can be
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limited to those who have substantial contributions, through their submissions, to


the resolution of the grave issues before the Court.

While the rule on locus standi can be relaxed, the rule on the need for an actual
justiciable case that is ripe for adjudication addresses a different concern and cannot
be similarly treated. I disagree with the ponenciasruling on justiciability as
I believe some of the petitions before us do not reach the required level
of justiciability; others, however, qualify as discussed below so that my
disagreement with the lack of justiciability of some of the petitions need
not hinder the Courts consideration of the main issue at hand.

The basic requisite before this Court can rule is the presence of an actual case
calling for the exercise of judicial power. This is a requirement that the Constitution
itself expressly imposes; in granting the Court judicial power and in defining the
grant, the Constitution expressly states that judicial power includes the duty to
settle actual controversies involving rights which are legally demandable and
enforceable.[2] Thus, the Court does not issue advisory opinions, nor do we pass upon
hypothetical cases, feigned problems or friendly suits collusively arranged between
parties without real adverse interests. Courts cannot adjudicate mere academic
questions to satisfy scholarly interest, however intellectually challenging they may
be. As a condition precedent to the exercise of judicial power, an actual controversy
between litigants must first exist.[3]

An actual case or controversy exists when a case involves a clash of legal rights
or an assertion of opposite legal claims that the courts can resolve through the
application of law and jurisprudence. The case cannot be abstract or hypothetical as
it must be a concrete dispute touching on the legal relations of parties having adverse
legal interests. A justiciable controversy admits of specific relief through a decree
that is conclusive in character, whereas an opinion only advises what the law would
be upon a hypothetical state of facts. An actual case is ripe for adjudication when the
act being challenged has a direct adverse effect on the individual challenging it.[4]

In the justiciable cases this Court has passed upon, particularly in cases
involving constitutional issues, we have held that the Court also has the duty to
formulate guiding and controlling constitutional principles, precepts, doctrines, or
rules. The Court carries the symbolic function of educating the bench and the bar on
the extent of protection given by constitutional guarantees.[5]

Separately from the above concept of claims involving demandable rights and
obligations (but no less real in the strict constitutional sense), is the authority of the
Supreme Court to rule on matters arising in the exercise of its power of supervision.

Under Section 6 of Article VIII of the Constitution, the Supreme Court is


granted the power of administrative supervision over all courts and the personnel
thereof. Pursuant to this power, the Court issues administrative circulars and
memoranda to promote the efficient and effective administration of justice, and
holds judges and court personnel administratively accountable for lapses they may
commit.[6] Through these circulars, memoranda and administrative matters and
cases, the Court likewise interprets laws relevant to its power of supervision.[7] The
Court likewise issues rules concerning, among others, the protection and
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enforcement of constitutional rights, pleading, practice, and procedure in all courts,


the admission to the practice of law, and the Integrated Bar.[8]

This aspect of the power of the Court its power of supervision is particularly
relevant in this case since the JBC was created under the supervision of the Supreme
Court, with the principal function of recommending appointees to the Judiciary. In
the same manner that the Court cannot dictate on the lower courts on how they
should decide cases except through the appeal and review process provided by the
Rules of Court, so also cannot the Court intervene in the JBCs authority to discharge
its principal function. In this sense, the JBC is fully independent as shown by A.M.
No. 03-11-16-SC or Resolution Strengthening The Role and Capacity of the Judicial
and Bar Council and Establishing the Offices Therein. In both cases, however and
unless otherwise defined by the Court (as in A.M. No. 03-11-16-SC), the Court can
supervise by ensuring the legality and correctness of these entities exercise of their
powers as to means and manner, and interpreting for them the constitutional
provisions, laws and regulations affecting the means and manner of the exercise of
their powers as the Supreme Court is the final authority on the interpretation of
these instruments. A prime example of the exercise of the Courts power of
supervision is In Re: Appointments dated March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City, and of Branch 24, Cabanatuan City, respectively, A.M. No.
98-5-01-SC, November 9, 1998 (hereinafter referred to as Valenzuela) where the
Court nullified the oath of office taken by Judge Valenzuela, while at the same time
giving its interpretation of how the election ban against appointment operates on the
Judiciary, thereby setting the guidelines on how Section 15, Article VII is to be read
and interpreted. The Valenzuela case shall be discussed more fully below.

a. The De Castro Petition

In his petition for certiorari and mandamus, Arturo De Castro (in G.R.
191002) seeks the review of the action of the JBC deferring the sending to the
incumbent President of the list of nominees for the position of Chief Justice, and
seeks as well to compel the JBC to send this list to the incumbent President when the
position of Chief Justice becomes vacant. He posits that the JBCs decision to defer
action on the list is both a grave abuse of discretion and a refusal to perform a
constitutionally-mandated duty that may be compelled by mandamus.[9]

On its face, this petition fails to present any justiciable controversy that can be
the subject of a ruling from this Court. As a petition for certiorari, it must first
show as a minimum requirement that the JBC is a tribunal, board or officer
exercising judicial or quasi-judicial functions and is acting outside its jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.[10] A
petition for mandamus, on the other hand, at the very least must show that a
tribunal, corporation, board or officer unlawfully neglects the performance of an act
which the law specifically enjoins as a duty.[11]

The petition facially fails to characterize the JBC as a council exercising judicial
or quasi-judicial functions, and in fact states that the JBC does not have any judicial
function.[12] It cannot so characterize the JBC because it really does not exercise
judicial or quasi-judicial functions. It is not involved in the determination of rights
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and obligations based on the constitution, laws and regulations; it is an


administrative body under the supervision of the Supreme Court and was created
principally to nominate appointees to the Judiciary.[13] As such, it deals solely with
the screening of applicants who wish to have the privilege of applying for judicial
positions.

From the point of view of substance, the petition admits that the vacancy for
the position of Chief Justice will not occur until May 17, 2010, and alleges that the
JBC has resolved to defer the decision to whom to send the list of 3 nominees,
whether to the incumbent President or to the next President following the May 11,
2010 national elections in view of Section 15, Article VII of the Constitution that bans
appointments during the election period,[14] citing various newspaper clippings and
the judicial notice of this Court.[15]

As suggested, we take judicial notice of the JBC action on the nomination


process for the position of Chief Justice, as circulated in the media and as evidenced
by official JBC records, and we note that the JBC has taken preliminary steps but not
conclusive action on the submission of a list of nominees for the position of Chief
Justice.[16] So far, the JBC has announced the forthcoming vacancy, the opening of
the position to applicants,[17] the announcement of nominees, and the invitation for
comments.[18] These are confirmed in the JBCs Comment dated February 25, 2010
which further states that the next stage of the process will be the public interview of
the candidates, and the preparation of the shortlist of candidates have yet to be
undertakenincluding the interview of the constitutional experts as may be
needed.[19] Thus, this Court is fully aware, based on its official knowledge that the
petition cites, of the extent of JBC developments in the nomination process, and the
petition cannot invoke our judicial notice to validly allege that the JBC has deferred
action on the matter.For the petition to insist that a deferment has taken place is to
mislead this Court on a matter that is within its official knowledge.

Neither the Constitution nor the Rules of Procedure of the JBC[20] categorically
states when a list of nominees for a vacant Supreme Court position shall be
submitted to the President, although the Constitution gives the President 90 days
within which to fill the vacancy.[21] This presidential deadline implies that the JBC
should submit its list of nominees before, or at the latest, on the day the vacancy
materializes so as not to shorten the 90-day period given to the President within
which to act.

Given these timelines and the May 17, 2010 vacancy date considered with the
allegations regarding the nature of the JBCs functions and its actions that we are
asked to judicially notice the De Castro petition filed on February 9, 2010 clearly
does not present a justiciable case for the issuance of a writ of certiorari. The
petition cannot make an incorrect and misleading characterization of the JBC action,
citing our judicial notice as basis, and then proceed to claim that grave abuse of
discretion has been committed. The study of the question of submitting a list to the
President in the JBCs step-by-step application and nomination process is not a grave
abuse of discretion simply because the petition calls it so for purposes of securing a
justiciable case for our consideration.[22]
Since the obligation to submit a list will not accrue until immediately before or
at the time the vacancy materializes (as the petitions prayer in fact admits), no duty
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can likewise be said to have as yet been neglected or violated to serve as basis for the
special civil action of mandamus. The JBCs study of the applicable constitutional
issue, as part of the JBCs nomination process, cannot be tantamount to a refusal to
perform its constitutionally-mandated duty. Presently, what exists is a purely
potential controversy that has not ripened into a concrete dispute where rights
have been violated or can already be asserted.

In these lights, the Court should dismiss the De Castro petition


outright. Similarly, the oppositions filed by way of intervening in and
anchored on the De Castro petition should similarly be dismissed.

b. The Peralta Petition.

John G. Peraltas petition (G.R. 191149) is likewise


for certiorari and mandamus. Like De Castros, he failed to allege that the JBC
exercises judicial or quasi-judicial functions a must in any petition for certiorari. In
fact the Peralta petition can be described as an imperfect carbon copy of De Castros
petition since it similarly asks for the review of the JBC action in deferring to
transmit to the incumbent President the list of nominees for appointment of a new
Chief Justice, and to compel the JBC to send the same to the incumbent President
for appointment of a Chief Justice, when the position becomes vacant upon the
mandatory retirement of the Honorable Chief Justice Reynato S. Puno.

Peralta only differs from De Castro because it does not allege deferment on the
basis of media reports and judicial notice; instead, it attaches the January 18,
2010 resolution of the JBC as Annex A and cites this as a basis. An examination of
Annex A, however, shows that the JBC did not in fact resolve to defer the submission
of the list of nominees; the JBC merely stated that As to the time to submit this
shortlist to the proper appointing authority, in light of the Constitution, existing
laws and jurisprudence, the JBC welcomes and will consider all view on the
matter. This is not a deferment, nor is it a refusal to perform a duty assigned by law
as the duty to submit a list of nominees will not mature until a vacancy has or is
about to occur.

For the same absence of a justiciable case, the Peralta petition


for certiorari and mandamus and all related interventions should be dismissed
outright.

c. The PHILCONSA Petition.

The petition of the Philippine Constitution Association (PHILCONSA, G.R.


191057) is for mandamus under Rule 65 of the Rules of Court.

It seeks to compel the JBC to include the names of Senior Justices Antonio
Carpio and Conchita Carpio-Morales, and Prosecutor Dennis Villa Ignacio, in the list
of nominees for the position of Chief Justice although these nominees have
manifested that they want their names submitted to the incoming, not to the
incumbent, President of the Philippines.
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The petition also seeks various declarations by this Court, among them, that
Section 15, Article VIII should apply only to the Executive Department and not to the
Judiciary; and that the Decision of this Court in Valenzuela should be set aside and
overruled.

As basis, the petition alleges that the issues raised in the petition have spawned
a frenzied inflammatory debate on the constitutional provisions that has divided the
bench and the bar and the general public as well. It likewise posits that due to the
positions the nominees have taken, a final authoritative pronouncement from this
Court on the meaning and construction of Sections 4(1), 8(5) and 9, Article VIII, in
relation with Section 15, Article VII, is necessary. The petition grounds itself, too, on
the needs of public interest and public service.

On the whole, the PHILCONSA petition merely asks for a declaration from this Court
of the meaning and interpretation of the constitutional provisions on the
appointment of the Chief Justice, the Members of the Court, and the Judiciary in
general during the election ban period.

As we did with the De Castro petition and based on the same standards we
discussed above, we hold that the PHILCONSA petition presents no justiciable
controversy that can be the basis for its consideration as a petition
for mandamus and for its adjudication on the merits. On its face, the petition defines
no specific duty that the JBC should exercise and has neglected to exercise, and
presents no right that has been violated nor any basis to assert any legal
right.[23] Like the De Castro petition, it only presents to the Court a potential
controversy that has not ripened.

Consequently, the Court should rule that the PHILCONSA petition should be
dismissed outright together with any intervention supporting or opposing this
petition.

d. The Mendoza Petition

The Mendoza petition (A.M. 10-2-5-SC) is unique as even its docket case
number will show; it is presented as an administrative matter for the Courts
consideration pursuant to its power of supervision over judges and over the
JBC,[24] following the lead taken in the Valenzuela case (an A.M. case).

The cited Valenzuela case is rooted in a situation not far different from the
present case; a vacancy in the Court[25] had occurred and a difference of opinion
arose between the Executive and the Court on the application of Section 15, Article
VII, in relation with Section 4(1) and 9 of Article VIII, of the Constitution. An
exchange of letters took place between the Palace and the Court on their respective
positions. In the meanwhile, the President appointed two RTC judges (Valenzuela
and Vallarta) within the two-month period prior to the election. The Palace
forwarded the judges appointments to the Court, thus confronting Chief Justice
Narvasa with the question of whether given the election ban under Section 15, Article
VII that prima facie applies he should transmit the appointment papers to the
appointed judges so they could take their oaths in accordance with existing
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practice. At that point, the Court decided to treat the matter as an administrative
matter that was ripe for adjudication.
An administrative matter that is entered in the Courts docket is either an
administrative case (A.C.) or an administrative matter (A.M.) submitted to the
Court for its consideration and action pursuant to its power of supervision. An A.C.
involves disciplinary and other actions over members of the Bar, based on the Courts
supervision over them arising from the Supreme Courts authority to promulgate
rules relating to the admission to the practice of law and to the Integrated
Bar. Closely related to A.C. cases are the Bar Matter (B.M.) cases particularly
involving admission to the practice of law.[26] An A.M. is a matter based on the
Supreme Courts power of supervision: under Section 6, Article VIII, this refers to the
Courts administrative supervision over all courts and the personnel thereof; under
Section 8, it refers to its supervision over the JBC.

In using an administrative matter as its medium, the Mendoza petition cites as


basis the effect of a complete election ban on judicial appointments (in view of the
already high level of vacancies and the backlog of cases) and submits this as an
administrative matter that the Court, in the exercise of its supervision over the
Judiciary, should act upon. At the same time, it cites the public discourse and
controversy now taking place because of the application of the election ban on the
appointment of the Chief Justice, citing in this regard the very same reasons
mentioned in Valenzuela about the need to resolve the issue and avoid the
recurrence of conflict thereon between the Executive and the Judiciary, and the need
to avoid any possible polemics concerning the matter.[27] The petition mentions as
well that the Court addressed the election ban issue in Valenzuela as an A.M. case,
and apparently takes the lead from this decided A.M.
An undeniable feature of the Mendoza petition, compared to Valenzuela, is its
lack of any clear and specific point where an actual actionable case arose (the
appointment of two RTC judges during the election ban period) calling for a
determination of how the Chief Justice and the Court should act.
The Mendoza petition, however, does not look up to the Courts supervisory authority
over lower court personnel pursuant to Section 6 of Article VIII of the Constitution,
in the way the Court did in Valenzuela. Expressly, the Mendoza petition looks
to the Courts supervisory authority over the JBC, an authority that the Court
in fact asserted in Valenzuelawhen, in the exercise of its power of supervision over
the Judicial and Bar Council, it INSTRUCTED the JBC to defer all actions on the
matter of nominations to fill up the lone vacancy in the Supreme Court or any other
vacancy until further orders.

From the time of Valenzuela up to the present, the governing law and the
relationships between the Court and the JBC have not changed; the supervisory
relationship still exists full strength. The JBC is now in fact waiting for the Courts
action on how it regards the Valenzuela ruling whether the Court will reiterate,
modify or completely abandon it. The JBC expressly admitted its dilemna in its
Comment when it said: Since the Honorable Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these consolidated Petitions
and Administrative Matter. Under these plain terms, the JBC recognizes that a
controversy exists on the issue of submitting a shortlist to the President and it will
not act except with guidance from this Court. This is a point no less
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critical, from the point of view of supervision, than the appointment of


the two judges during the election ban period in Valenzuela.

That the JBC has taken this stance is not surprising given the two petitions for
prohibition filed by Jaime N. Soriano (G.R. No. 191032) and Atty. Amador Z.
Tolentino, Jr., (G.R. No. 191342) that, on their face, show a cause of action ripe for
adjudication.

d.1 The Soriano and Tolentino Petitions

Soriano seeks to bar the JBC from continuing the selection processes on the
ground that the Supreme Court, not the President, appoints the Chief Justice.
Tolentino, on the other hand, seeks the issuance of a writ of prohibition under Rule
65 of the 1997 Rules of Court, among others, to enjoin and restrain the JBC from
submitting a list of nominees for judiciary positions to the incumbent President, on
the ground that an existing election ban against appointments is in place under
Section 15, Article VII of the Constitution.

In the simplest terms, the JBC by its own admission in its Comment and by
Sorianos[28] and Tolentinos[29] own admissions in their petitions is now in the process
of preparing its submission of nominees for the vacancy to be created by the
retirement of the incumbent Chief Justice, and has already completed the initial
phases of this preparation. Soriano and Tolentino want to stop this process and
compel the JBC to immediately discontinue its activities, apparently on the theory
that nomination is part of the appointment process

While their cited grounds and the intrinsic merits of these grounds vary, the
Soriano and Tolentino petitions, on their faces, present actual justiciable
controversies that are ripe for adjudication. Section 15, Article VII of the Constitution
embodies a ban against appointments by the incumbent President two months
before the election up to the end of her term. A ruling from this Court (Valenzuela) is
likewise in place confirming the validity of this ban against the Judiciary, or at least
against the appointment of lower court judges. A vacancy in the position of Chief
Justice will occur on May 17, 2010, within the period of the ban, and the JBC is
admittedly preparing the submission of its list of nominees for the position of Chief
Justice to the President. Under the terms of Section 15, Article VII and the obtaining
facts, a prima facie case exists supporting the petition for violation of the election
ban.

d.2. Supervision over the JBC.

That the JBC now under a different membership needs guidance on the course
of action it should take on the constitutional issues posed, can best be understood
when the realities behind the constitutional provisions are examined.

A first reality is that the JBC cannot, on its own due to lack of the proper
authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary and
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it has no authority to interpret constitutional provisions, even those affecting its


principal function; the authority to undertake constitutional interpretation belongs
to the courts alone.

A second reality is that the disputed constitutional provisions do not stand


alone and cannot be read independently of one another; the Constitution and its
various provisions have to be read and interpreted as one seamless whole, [30] giving
sufficient emphasis to every aspect in accordance with the hierarchy of our
constitutional values. The disputed provisions should be read together and, as
reflections of the will of the people, should be given effect to the extent that they
should be reconciled.

The third reality, closely related to the second, is that in resolving the
coverage of the election ban vis--vis the appointment of the Chief Justice and the
Members of the Court, provisions of the Constitution other than the disputed
provisions must be taken into account. In considering when and how to act, the JBC
has to consider that:

1. The President has a term of six years which begins at noon of June
30 following the election, which implies that the outgoing President remains
President up to that time. (Section 4, Article VII). The President assumes office
at the beginning of his or her term, with provision for the situations where the
President fails to qualify or is unavailable at the beginning of his term (Section
7, Article VII).

2. The Senators and the Congressmen begin their respective terms also
at midday of June 30 (Sections 4 and 7, Article VI). The Congress convenes
on the 4th Monday of July for its regular session, but the President may call a
special session at any time. (Section 15, Article VI)

3. The Valenzuela case cited as authority for the position that the election
ban provision applies to the whole Judiciary, only decided the issue with
respect to lower court judges, specifically, those covered by Section 9, Article
VIII of the Constitution. Any reference to the filling up of vacancies in the
Supreme Court pursuant to Section 4(1), Article VIII constitutes obiter
dictum as this issue was not directly in issue and was not ruled upon.

These provisions and interpretation of the Valenzuela ruling when read


together with disputed provisions, related with one another, and considered with the
May 17, 2010 retirement of the current Chief Justice bring into focus certain
unavoidable realities, as follows:

1. If the election ban would apply fully to the Supreme Court, the
incumbent President cannot appoint a Member of the Court beginning March
10, 2010, all the way up to June 30, 2010.

2. The retirement of the incumbent Chief Justice May 17, 2010 falls within
the period of the election ban. (In an extreme example where the retirement of
a Member of the Court falls on or very close to the day the election ban starts,
the Office of the Solicitor General calculates in its Comment that the whole 90
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days given to the President to make appointment would be covered by the


election ban.)

3. Beginning May 17, 2010, the Chief Justice position would be vacant,
giving rise to the question of whether an Acting Chief Justice can act in his
place. While this is essentially a Supreme Court concern, the Chief Justice is
the ex officio Chair of the JBC; hence it must be concerned and be properly
guided.

4. The appointment of the new Chief Justice has to be made within 90 days
from the time the vacancy occurs, which translates to a deadline of August 15,
2010.

5. The deadline for the appointment is fixed (as it is not reckoned from the
date of submission of the JBC list, as in the lower courts) which means that the
JBC ideally will have to make its list available at the start of the 90-day period
so that its process will not eat up the 90-day period granted the President.

6. After noon of June 30, 2010, the JBC representation from Congress
would be vacant; the current representatives mandates to act for their
principals extend only to the end of their present terms; thus, the JBC shall be
operating at that point at less than its full membership.

7. Congress will not convene until the 4th Monday of July, 2010, but would
still need to organize before the two Houses of Congress can send their
representatives to the JBC a process may extend well into August 2010.

8. In July 2010, one regular member of the JBC would vacate his
post. Filling up this vacancy requires a presidential appointment and the
concurrence of the Commission on Appointments.

9. Last but not the least, the prohibition in Section 15, Article VII is that a
President or Acting President shall not make appointments. This prohibition is
expressly addressed to the President and covers the act of appointment; the
prohibition is not against the JBC in the performance of its function of
recommending appointees to the Judiciary an act that is one step away from
the act of making appointments.

d.3. Conclusion on the Mendoza Petition

Given the justiciable Soriano and Tolentino petitions that directly address the
JBC and its activities, the impact of the above-outlined realities on the grant of a writ
of prohibition, and the undeniable supervision that the Supreme Court exercises over
the JBC as well as its role as the interpreter of the Constitution sufficiently
compelling reason exists to recognize the Mendoza petition as a properly
filed A.M. petition that should fully be heard in these proceedings to fully
ventilate the supervisory aspect of the Courts relationship with the JBC
and to reflect, once again, how this Court views the issues first
considered in Valenzuela. The Courts supervision over the JBC, the latters need
for guidance, and the existence of an actual controversy that Soriano and Tolentino
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cite, save the Mendoza petition from being one for declaratory relief, which petition
is originally cognizable by the Regional Trial Court, not by this Court.[31]

To summarize the preliminary considerations of locus standi and


justiciability and the outstanding issues for resolution, the main issue in
these consolidated cases continues to be whether Section 15, Article VII of the
Constitution limiting the authority of the President of the Philippines to exercise her
power of appointment shall prevail over the mandate, provided under Section 4(1)
and 9, Article VIII, that appointments to the Supreme Court shall be within 90 days
from the occurrence of the vacancy, and within 90 days from the JBCs submission of
its list of nominees for the lower courts. A sub-issue is the continued effectiveness
and strength of the Valenzuela case as guide and precedent in resolving the above
issue. All these should be read in the context of the petitions for
prohibition and the Mendoza A.M. petition, as the De Castro and the
PHILCONSA petitions suffer from lack of justiciability and prematurity.

III. The Merits of the Petitions

a. The Soriano Petition.

The Soriano petition presents a very novel interpretation of Section 9, Article


VIII in its position that the authority to appoint the Chief Justice is lodged in the
Court, not in the President.

The correctness of this reading of the law is contradicted by both history and by
the law itself.

History tells us that, without exception, the Chief Justice of the Supreme Court
has always been appointed by the head of the Executive Department. Thus, Chief
Justices Cayetano Arellano, Victorino Mapa, Manuel Araullo, Ramon Avancena, Jose
Abad Santos, Jose Yulo, Manuel Moran and all the Chief Justices after Philippine
independence were appointed by the Chief Executive. The only difference in their
respective appointments is the sovereignty under which they were appointed.

The Chief Justices under the American regime were appointed by the President
of the United States; one Chief Justice each was appointed under the Commonwealth
and under the Japanese Military Administration; and thereafter all the Chief Justices
were appointed by the Philippine President. In every case, the appointing authority
was the Chief Executive.

The use of the generic term Members of the Supreme Court under Section 9,
Article VIII in delineating the appointing authority under the 1987 Constitution, is
not new. This was the term used in the present line of Philippine Constitutions, from
1935 to 1987, and the inclusion of the Chief Justice with the general term Member of
the Court has never been in doubt.[32] In fact, Section 4(1) of the present Constitution
itself confirms that the Chief Justice is a Member of the Court when it provides that
the Court may sit en banc or, in its discretion, in divisions of three, five, or seven
Members. The Chief Justice is a Member of the En Banc and of the First Division in
fact, he is the Chair of the En Banc and of the First Division but even as Chair is
counted in the total membership of the En Banc or the Division for all purposes,
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particularly of quorum. Thus, at the same time that Section 4(1) speaks of a Supreme
Court. . . composed of one Chief Justice and fourteen Associate Justices, it likewise
calls all of them Members in defining how they will sit in the Court.

Thus, both by law and history, the Chief Justice has always been a Member of
the Court although, as a primus inter pares appointed by the President together with
every other Associate Justice. For this reason, we should dismiss the Soriano petition
for lack of merit.

b. The Tolentino and Mendoza Petitions;


the OSG and JBC Comments

This is only a Separate Opinion, not a ponencia, and rather than recite or
tabulate the various positions taken in these submissions, I shall instead discuss the
issues based on topically arranged subdivisions and introduce the various positions
as arguments, for or against, without always naming the source. This is solely for
ease of presentation, clarity and continuity rather than for any devious reason.

b.1. Does a conflict of provisions textually exist?


No need exists to further recite Section 15, Article VII, on the one hand, and Sections
4(1) and 9, Article VIII, on the other, as they are already quoted at the start of this
Opinion. I do not believe any of the parties, though, will dispute that a conflict exists
even from the text of these provisions alone.

Section 15 on its face disallows any appointment in clear negative terms (shall
not make) without specifying the appointments covered by the prohibition. From
this literal reading springs the argument that no exception is provided (except the
exception found in Section 15 itself) so that even the Judiciary is covered by the ban
on appointments.

On the other hand, Section 4(1) is likewise very clear and categorical in its
terms: any vacancy in the Court shall be filled within 90 days from its occurrence. In
the way of Section 15, Section 4(1) is also clear and categorical and provides no
exception; the appointment refers solely to the Members of the Supreme Court and
does not mention any period that would interrupt, hold or postpone the 90-day
requirement.

Section 9 may offer more flexibility in its application as the mandate for the
President is to issue appointments within 90 days from submission of the list,
without specifying when the submission should be made.From their wordings,
urgency leaps up from Section 4(1) while no such message emanates from Section 9;
in the latter the JBC appears free to determine when a submission is to be made,
obligating the President to issue appointments within 90 days from the submission
of the JBC list. From this view, the appointment period under Section 9 is one that is
flexible and can move.

Thus, in terms of conflict, Sections 4(1) and Sections 15 can be said to be


directly in conflict with each other, while a conflict is much less evident from a
comparison of Sections 9 and 15. This conclusion answers the verba legis argument
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of the Tolentino petition that when the words or terms of a statute or provision is
clear and unambiguous, then no interpretation is necessary as the words or terms
shall be understood in their ordinary meaning. In this case, the individual
provisions, in themselves, are clear; the conflict surfaces when they operate in
tandem or against one another.

b.2. The Valenzuela Ruling.

The Valenzuela decision gives the full flavor of how the election ban issue arose
because of Chief Justice Narvasas very candid treatment of the facts and the
issue. Valenzuela openly stated that at the root of the dispute was the then existing
vacancy in the Court and the difference of opinion on the matter between the
Executive and the Court on the application of Section 15, Article VII, in relation with
Section 4(1) and 9 of Article VIII, of the Constitution.

What appears very clear from the decision, however, is that the factual
situation the Court ruled upon, in the exercise of its supervision of court personnel,
was the appointment by the President of two RTC judgesduring the period of the
ban. It is clear from the decision, too, that no immediate appointment was ever made
to the Court for the replacement of retired Justice Ricardo Francisco as the JBC
failed to meet on the required nominations prior to the onset of the election ban.

From this perspective, it appears clear to me that Valenzuela should be read


and appreciated for what it is a ruling made on the basis of the Courts supervision
over judicial personnel that upholds the election ban as against the appointment of
lower court judges appointed pursuant to the period provided by Section 9 of Article
VIII. Thus, Valenzuelas application to the filling up of a vacancy in the Supreme
Court is a mere obiter dictumas the Court is largely governed by Section 4(1) with
respect to the period of appointment. The Section 4(1) period, of course and as
already mentioned above, has an impact uniquely its own that is different from that
created by the period provided for the lower court under Section 9.

I find it interesting that Tolentino largely justifies his position that the JBC
should now be prohibited from proceeding with the nomination process based
on Valenzuela as the prevailing rule that should be followed under the principle
of stare decisis. Tolentino apparently misappreciates the reach and real holding
of Valenzuela, as explained and clarified above. A ruling involving the appointment
of lower court judges under Section 9, Article VIII cannot simply be bodily lifted and
applied in toto to the appointment of Members of the Supreme Court under Section
4(1) of the same Article.

Because of his misappreciation, Tolentino is likewise mistaken in his appeal to


the principle of stare decisis. The stability of judgments is indeed a glue that the
Judiciary and the litigating public cannot do without if we are to have a working and
stable justice system. Because of this role, the principle is one that binds all courts,
including this Court, and the litigating public. The principle, however, is not open-
ended and contains its own self-limitations; it applies only to actions in all
future similar cases and to none other. Where ample room for distinction exists, as
in this case, then stare decisis does not apply.
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Another aspect of stare decisis that must be appreciated is that Supreme Court
rulings are not written in stone so that they will remain unerased and applicable for
all times. The Supreme Courts review of rulings and their binding effects is a
continuing one so that a ruling in one era may be declared by the Court at some
future time to be no longer true and should thus be abandoned and changed. The
best and most unforgettable example of this kind of change happened in the United
States when the US Supreme Court overturned the ruling in Plessy v.
Fergusson[33] that upheld the constitutionality of racial segregation under the
separate but equal doctrine. After half a century, the US Court completely abandoned
this ruling in the now famous Brown v. Board of Education when it ruled that
separate but equal doctrine is inherently unequal in the context of public
education.[34]I mention this, if only as a reminder to one and all, that the terms of
the Valenzuela ruling, if truly applicable even to appointments to this Court, is not
written in stone and remains open for review by this Court.

Valenzuela rests on the reasoning that the evil that Section 15 seeks to remedy
vote buying, midnight appointments and partisan reasons to influence the results of
the election is so pervasive so that the Section 15 ban should prevail over everything
else. The Court, however, forgot in some statements in this case that hand in hand
with Section 15 is Section 4(1) where the framers also recognized, in clear and
absolute terms, that a vacancy in the Court should be filled up because of the
importance of having a Supreme Court with its full and complete membership.
Completeness has a heightened meaning when the missing Member is the head of
the Judiciary and the Court in the person of the Chief Justice.

The separate realities that Section 15, Article VII and Section 4(1) bring to the
fore now confront us with the question of prioritizing our constitutional values in
terms of two provisions that effectively operate in their separate spheres, but which
conflict when they directly confront one another. The direct question is: should we
really implement Section 15 above everything else, even at the expense of having an
incomplete Supreme Court, or should we recognize that both provisions should be
allowed to operate within their own separate spheres with one provision being an
exception to the other, instead of saying that one provision should absolutely prevail
over the other?

What Valenzuela failed to consider, because it was looking at the disputed


provisions from the prism of two RTC judges, is that the reasons for the application
of Section 15, Article VII may not at all exist in appointments to the Supreme Court.

In the first place, Section 4(1) covers only the appointment of 15 Members, not
in their totality, but singly and individually as Members disappear from the Court
and are replaced. Thus, the evil that the Aytonacase[35] sought to remove
mass midnight appointments will not be present.

Secondly, partisanship is hardly a reason that would apply to the Supreme


Court except when the Members of the Court individually act in violation of their
oaths or directly transgress our graft and corruption laws.Let it be remembered that
the Constitution itself has entrusted to the Court the final and definitive recourse in
election contest involving the President, the Vice-President and Members of
Congress. Because of this reposed trust on the Supreme Court as a body, reasons of
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partisanship can hardly be a reason to systemically place the whole Supreme Court
under a ban on appointments during the election period.

Of course, partisanship is an objection that can apply to individual Members of


the Court and even to the applicants for the position of Chief Justice. But this is a
different question that should not result in placing the system of appointments to the
Court within the coverage of the election ban; objections personal to individual
Members and to individual applicants are matters addressed to the JBC and to the
final appointing authority the President. It is for reasons of these possible individual
objections that the JBC and even the Office of the President are open to comments
and objections.

Incidentally, the incumbent President is not up for re-election by operation of


the Constitution so that a partisanship objection in the Presidents favor has no
basis. If any, an objection personal to the Supreme Court applicant may be raised
because of perceived bias or partisanship in favor of the Presidents choice in the
elections. This would be a meaningless objection, however, if it is considered that the
same objection can be raised against a Supreme Court nominee appointed by the
incoming President; this new appointee will sit in judgment in the electoral dispute
that follows the presidential elections and can be chosen for bias towards the new
President and his party. In this sense, an objection on the basis of personal bias is
not at all an appropriate consideration when the issue is systemic in its application
the application of the election ban on appointments to Supreme Court appointments.

In any case, the comments made on this point in the petitions are conjectural
and speculative and can hardly be the bases for adjudication on the merits. If records
of the Court will matter, the duly proven facts on record about the immediately past
Chief Justices speak for themselves with respect to partisanship in favor of the sitting
President. It is a matter of public record that Chief Justices Davide, Panganiban and
Puno did not try to please their respective incumbent Presidents, and instead ruled
in the way that the law, jurisprudence and the requirements of public interests
dictated.

The Mendoza petition presents some very compelling reasons why the
Supreme Court, if not the whole Judiciary, should be exempt from the coverage of
the election ban that Section 15, Article VII imposes.

The Chief Justice is the head of the Judiciary in the same manner that the
President is the Chief Executive and the Senate President and the Speaker of the
House head the two Houses of Congress. The Constitution ensures, through clear
and precise provisions, that continuity will prevail in every branch by defining how
replacement and turnover of power shall take place. Thus, after every election to be
held in May, a turn over of power is mandated on the following 30th of June for all
elective officials.

For the Supreme Court where continuity is by the appointment of a


replacement, the Constitution requires that the replacement Member of the Court,
including the Chief Justice, should be appointed within 90 days from the occurrence
of the vacancy. This is the sense of urgency that the Constitution imparts and is far
different from the appointment of the justices and judges of the lower courts where
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the requirement is 90 days from the JBCs submission of its list. This constitutional
arrangement is what the application of Section 15, Article VII to the appointment of
Members of the Supreme Court will displace.

The Tolentino petition argues that the appointment of a Chief Justice is not all
that important because the law anyway provides for an Acting Chief Justice. While
this is arguably true, Peralta misunderstands the true worth of a duly appointed
Chief Justice. He forgets, too, that a Supreme Court without a Chief Justice in place
is not a whole Supreme Court; it will be a Court with only 14 members who would act
and vote on all critical matters before it.

The importance of the presence of one Member of the Court can and should
never be underestimated, particularly on issues that may gravely affect the
nation. Many a case has been won or lost on the basis of one vote. On an issue of the
constitutionality of a law, treaty or statute, a tie vote which is possible in a 14
member court means that the constitutionality is upheld. This was our lesson
in Isagani Cruz v. DENR Secretary.[36]

More than the vote, Court deliberation is the core of the decision-making
process and one voice less is not only a vote less but a contributed opinion, an
observation, or a cautionary word less for the Court. One voice can be a big
difference if the missing voice is that of the Chief Justice.

Without meaning to demean the capability of an Acting Chief Justice, the


ascendancy in the Court of a permanent sitting Chief Justice cannot be equaled. He
is the first among equals a primus inter pares who sets the tone for the Court and the
Judiciary, and who is looked up to on all matters, whether administrative or judicial.
To the world outside the Judiciary, he is the personification of the Court and the
whole Judiciary. And this is not surprising since, as Chief Justice, he not only chairs
the Court en banc, but chairs as well the Presidential Electoral Tribunal that sits in
judgment over election disputes affecting the President and the Vice-
President. Outside of his immediate Court duties, he sits as Chair of the Judicial and
Bar Council, the Philippine Judicial Academy and, by constitutional command,
presides over the impeachment of the President.[37] To be sure, the Acting Chief
Justice may be the ablest, but he is not the Chief Justice without the mantle and
permanent title of the Office, and even his presence as Acting Chief Justice leaves the
Court with one member less. Sadly, this member is the Chief Justice; even with an
Acting Chief Justice, the Judiciary and the Court remain headless.

The intent of the framers of the Constitution to extend to the Court a fixed
period that will assure the nation that the Courts membership shall immediately be
filled, is evidenced no less than by the Constitutional Commissions own deliberations
where the following exchange took place:

Mr. De Castro: I understand that our justices now in the Supreme Court, together
with the Chief Justice, are only 11.
Mr. Concepcion: Yes.
Mr. De Castro: And the second sentence of this subsection reads: Any
vacancy shall be filled within ninety days from the occurrence thereof.
Mr. Concepcion: That is right.
Mr. De Castro: Is this a now a mandate to the executive to fill the vacancy.
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Mr. Concepcion: That is right. That is borne out of the fact that in the past 30
years, seldom has the Court had a complete complement.

This exchange, to my mind, removes any remaining doubt about the framers
recognition of the need to always have a full Court.
b.3. Construction of the Disputed Provisions

A notable aspect of the Valenzuela ruling in the context of constitutional


interpretation, is its conclusion that in a conflict between two provisions one in the
Article on the Executive Department and the other an Article in the Judicial
Department one of them should completely give way and the other should prevail.
This is a very unusual approach in interpretation, particularly if the apparently
conflicting provisions are from the Constitution an instrument that has painstakingly
been deliberated upon by the best and the brightest minds in the country. For, the
rule in constitutional interpretation is that the constitution must be appreciated and
interpreted as one single instrument, with apparently conflicting provisions
reconciled and harmonized in a manner that will give all of them full force and
effect.[38]

Where, as in Valenzuela, the Chief Justice of the Supreme Court, no less,


appeared to have given up the benefit of an immediate appointment of Members of
the Supreme Court, then extremely compelling reasons must have driven the Court
to its conclusion. I fully understood though the former Chief Justices conclusion in
this case when I realized that he was not effectively ruling on Section 4(1) of Article
VIII, and was in fact ruling on a case involving lower court judges.

For indeed, the reasons the former Chief Justice cited in Valenzuela justify the
application of the Section 15, Article VII as against the rule on appointment of lower
court judges under Section 9, Article VIII. As I have shown above, Section 9 does not
impose a hard and fast rule on the period to be observed, apparently because the
urgency of the appointment may not be as great as in the appointment of Members
of the Supreme Court.The period for appointment can move at the discretion of the
JBC, although the exercise of this discretion also carries its own butt-in and implicit
limits.

The former Chief Justices weightier reason arose from


the Aytona decision where mass appointments were recognized as an evil that could
affect the integrity of our elections. Because of the number of appointments that may
currently be involved if appointments to lower courts are allowed before the May
2010 election (around 537 vacancies at a 24.5% vacancy rate at the first and second
level courts according to the figures of the Mendoza petition)[39] and the power and
influence judges may exert over their local communities, an exemption from the
election ban may indeed bring about (or at least give the appearance of bringing
about) the evils that the framers of the Constitution and this Court itself sought to
remedy under Section 15, Article VII and the Aytona decision, respectively.

For this reason, I do not disagree with Valenzuela for its ruling on lower court
judges; Section 15, Article VII may indeed prevail over Section 9, Article VIII.
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In contrast with this conclusion, an interpretation that Section 15, Article VII
will similarly prevail over Section 4(1), Article VIII is clearly misplaced. The
structure, arrangement and intent of the Constitution and the public policy reasons
behind them simply speak against the interpretation that appointments of Members
of the Court should be subject to the election ban. These are all discussed above and
need not be repeated here.

Principles of constitutional interpretation, too, militate against an


interpretation that would give primacy to one branch of government over another in
the absence of very compelling reasons. Each branch of government is in place for a
particular reason and each one should be given every opportunity to operate to its
fullest capacity and potential, again unless very compelling reasons exist for the
primacy of one over the other.No such compelling reason so far exists or has been
cited.

Based on the values that the disputed provisions embody, what we need to
balance are the integrity of our electoral process and the protection needed to
achieve this goal, as against the Judiciarys need for independence and strength
enforced through a Supreme Court that is at its full strength. To be sure, the nation
and our democracy need one as well as the other, for ultimately both contribute to
our overall national strength, resiliency, and stability. Thus, we must, to the extent
possible, give force and effect to both and avoid sacrificing one for the other.

To do this and to achieve the policy of insulating our constitutional process


from the evils of vote-buying, influence peddling and other practices that affect the
integrity of our elections, while at the same time recognizing the Judiciarys and the
nations need to have a full Supreme Court immediately after a vacancy occurs,
Section 4(1) of Article VIII should be recognized as a narrow exception granted to the
Judiciary in recognition of its proven needs. This is a narrow exception as the
election ban of Section 15, Article VII, shall apply with full force and effect on the
appointment of lower court justices and judges.

c. Guidelines for the Judicial and Bar Council

The resolution of the present dispute can only be complete if clear guidelines
are given to the JBC on how it shall conduct itself under the present circumstances
pursuant to this Courts ruling. The Court should therefore direct the JBC to:

A. forthwith proceed with its normal processes for the submission of the list of
nominees for the vacancy to be created by the retirement of Chief Justice
Reynato S. Puno, to be submitted to the President on or before the day
before the retirement of the Chief Justice;

B. in the course of preparing its list of nominees, determine with certainty the
nominees readiness to accept the nomination as well as the appointment
they may receive from the President, deleting from the list the nominees
who will refuse to confirm their full readiness to accept without conditions
either their nomination or their appointment, if they will be appointed;
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C. proceed with its normal processes for the preparation of the lists for the
vacancies for the lower courts, to be submitted to the Office of the President
as soon as the election ban on appointments is lifted; and
D. in all other matters not otherwise falling under the above, conduct itself in
accordance with this Decision.

In light of all the foregoing, I vote to:

1. Dismiss the De Castro and Peralta petitions and for not being justiciability
and for prematurity.

2. Dismiss the Soriano and the Tolentino petitions for lack of merit.

3. Dismiss all petitions and motions for interventions supporting or opposing


the above petitions.

4. Grant the Mendoza petition and declare for the JBCs guidance that:
a. Section 4(1), Article VIII is an exception to the coverage of
Section 15, Article VII; appointments to the Supreme Court are
not subject to the election ban under Section 15, Article VII so
that the JBC can submit its list of nominees for the expected
vacancy for the retirement of Chief Justice Reynato S. Puno, on
or before the vacancy occurs, for the Presidents consideration
and action pursuant to Section 4(1), Article VIII ;
b. Reiterate our ruling in In re: Valenzuela and Vallarta that no
other appointments of judges of the lower courts can be made
within the election ban period, pursuant to Section 15, Article
VII.

ARTURO D. BRION
Associate Justice
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In BAR MATTER N0. 1645 (RE: AMENDMENT OF RULE 139-B), dated October
13, 2015, the Supreme Court issued new rules governing administrative
disciplinary cases against lawyers.

The premises of Bar Matter 1645 are as follows:


1.
Article VIII, Section 5(5) of the 1987 Constitution confers upon the Supreme Court
the power to promulgate rules concerning the admission to the practice of law.

2.
The Supreme Court's power relating to the admission to the practice of law
inherently includes the power to discipline and remove from the rolls, lawyers who
have transgressed their oath and violated the Code of Professional Responsibility.

3.
Dismissal of complaints filed against lawyers is a power of the Supreme Court that
cannot be delegated to the Integrated Bar of the Philippines.

4.
The motive of the complainant and his or her action/inaction after the filing of a
verified complaint against a lawyer are not essential to the proceedings.

The new rules under Bar Matter 1645 are as follows:

1.
Sections 1, 5, 12, 13, and 15 of Rule 139-B of the Rules of Court are amended to
read as follows:

“RULE 139-B Disbarment and Discipline of Attorneys

Section 1. How Instituted. - Proceedings for the disbarment, suspension, or


discipline of attorneys may be taken by the Supreme Court motu propio, or upon the
filing of a verified complaint of any person before the Supreme Court or the
Integrated Bar of the Philippines (IBP). The complaint shall state clearly and
concisely the facts complained of and shall be supported by affidavits of persons
having personal knowledge of the facts therein alleged and/or by such documents as
may substantiate said facts.

The IBP shall forward to the Supreme Court for appropriate disposition all complaints
for disbarment, suspension and discipline filed against incumbent Justices of the
Court of Appeals, Sandiganbayan, Court of Tax Appeals and judges of lower courts,
or against lawyers in the government service, whether or not they are charged singly
or jointly with other respondents, and whether or not such complaint deals with acts
unrelated to the discharge of their official functions. If the complaint is filed before the
IBP, six ( 6) copies of the verified complaint shall be filed with the Secretary of the
IBP or the Secretary of any of its chapter who shall forthwith transmit the same to the
IBP Board of Governors for assignment to an investigator.”
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A. PROCEEDINGS IN THE INTEGRATED BAR OF THE


PHILIPPINES

“Section 5. Service or dismissal. - If the complaint appears to be meritorious, the


Investigator shall direct that a copy thereof be served upon the respondent, requiring
him to answer the same within fifteen (15) days from the date of service.

If the complaint does not merit action, or if the answer shows to the satisfaction of
the Investigator that the complaint is not meritorious, the Investigator will recommend
to the Board of Governors the dismissal of the complaint.

Thereafter, the procedure in Section 12 of this Rule shall apply. No investigation


shall be interrupted or terminated by reason of the desistance, settlement,
compromise, restitution, withdrawal of the charges, or failure of the complainant to
prosecute the same, unless the Supreme Court motu propio or upon
recommendation of the IBP Board of Governors, determines that there is no
compelling reason to continue with the disbarment or suspension proceedings
against the respondent.”

(Amendment pursuant to Supreme Court Resolution dated May 27, 1993 re Bar
Matter No. 356)

“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 of the Board shall be given to all parties through their
counsel, if any.”

B. PROCEEDINGS IN THE SUPREME COURT

“Section 13. Investigation of complaints. - In proceedings initiated by the Supreme


Court, or in other proceedings when the interest of justice so requires, the Supreme
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Court may refer the case for investigation to the Office of the Bar Confidant, or to
any officer of the Supreme Court or judge of a lower court, in which case the
investigation shall proceed in the same manner provided in sections 6 to 11 hereof,
save that the review of the report of investigation shall be conducted directly by the
Supreme Court.

The complaint may also be referred to the IBP for investigation, report, and
recommendation.”

C. COMMON PROVISIONS

“Section 15. Suspension of attorney by Supreme Court. - After receipt of


respondent's answer or lapse of the period therefor, the Supreme Court, motu
propio, or upon the recommendation of the IBP Board of Governors, may suspend
an attorney from the practice of his profession for any of the causes specified in Rule
138, section 27, during the pendency of the investigation until such suspension is
lifted by the Supreme Court.”

The amendments shall take effect fifteen (15) days after publication in a
newspaper of general circulation.

The Integrated Bar of the Philippines is ordered to revise its rules of procedure
in accordance with the amendments to Rule 139-B.
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July 25, 2016


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A.C. No. 10117


IN RE: RESOLUTION DATED AUGUST 14, 2013 OF THE COURT OF
APPEALS IN CA-G.R. CV No. 94656,
vs.
ATTY. GIDEON D.V. MORTEL, Respondent
RESOLUTION
LEONEN, J.:
This resolves an administrative complaint charging respondent Atty. Gideon
D.V. Mortel (Atty. Mortel) with disobedience or defiance of lawful court orders,
amounting to gross misconduct and insubordination or disrespect. The 1

complaint arose from the proceedings before the Court of Appeals in Bank of
the Philippine Islands v. Angelita De Jesus, through her Attorney-in-Fact Jim
Dulay, which Atty. Mortel handles.
2 3

On July 20, 2010, the Court of Appeals issued a Notice for Atty. Mortel to file an
4

appellant’s brief on behalf of his client, Angelita De Jesus, within the 5

reglementary period of 45 days from notice. 6

Atty. Mortel recently moved out of his office at Herrera Tower, Makati City due to
the high cost of maintenance. Looking for a new office, he requested to use the
7 8

address of his friend’s law firm as his address on record for Bank of the
Philippine Islands. Atty. Marcelino Ferdinand V. Jose (Atty. Jose), Managing
9

Partner of MFV Jose Law Office, granted this request sometime in August
2010. Atty. Mortel’s address on record was then listed at Unit 2106, Philippine
10

AXA Life Center, 1286 Sen. Gil Puyat Ave., Makati City, the same address as
11

MFV Jose Law Office. 12

All communication, court orders, resolutions, notices, or other court processes


addressed to MFV Jose Law Office were received by the law firm’s staff. The 13

staff would pass these to the desk of Atty. Jose for monitoring and checking.
Atty. Jose would then forward these to the handling lawyer in the office. The 14

law firm’s messenger, Randy G. Lucero (Lucero), was tasked with informing
Atty. Mortel whenever there was a resolution or order pertinent to Bank of
Philippine Islands.15

Bank of Philippine Islands was not included in MFV Jose Law Office’s list or
inventory of cases. Thus, Atty. Jose "simply attached a piece of paper with
16

notation and instructions on the same, advising [Lucero] . . . to forward it to Atty.


Mortel." 17

Initially, Randy De Leon (De Leon), Atty. Mortel’s messenger, went to MFV Law
Office to inquire if it had received notices for Atty. Mortel. None came at that
18

time. Thus, De Leon left his number with Lucero, and the two messengers
19
PALE 26
Authority to Sanction Members of the Bar

agreed that Lucero would text De Leon should any court notice or order for Atty.
Mortel arrive. 20

On August 16, 2010, instead of heeding the Court of Appeals Notice to file the
appellant’s brief, Atty. Mortel moved to withdraw Angelita De Jesus’ appeal in 21

light of an amicable settlement on the disputed property. After the Motion to


22

Withdraw Appeal was filed, he stopped communicating with MFV Law Office
and instructed De Leon to do the same. 23

In the Resolution dated September 20, 2010, the Court of Appeals directed Atty.
Mortel to secure and submit Angelita De Jesus’ written conformity to the Motion
to Withdraw Appeal within five (5) days from notice. Atty. Mortel did not
24

comply. 25

In the Resolution dated November 11, 2010, the Court of Appeals again directed
Atty. Mortel to comply with the September 20, 2010 Resolution and warned him
of disciplinary action should he fail to secure and submit Angelita De Jesus’
written conformity to the Motion within the reglementary period. Atty. Mortel did
26

not comply. 27

Thus, on February 23, 2011, the Court of Appeals resolved to "den[y] the motion
to withdraw appeal; . . . reiterat[e] the notice dated July 20, 2010, directing
[Angelita De Jesus] to file appellant’s brief within . . . [45] days from notice; and .
. . direc[t] Atty. Mortel to show cause why he should not be cited in contempt for
non-compliance with [the Court of Appeals] order." 28

The February 23, 2011 Resolution was sent to Angelita De Jesus’ address on
record, but it was returned with the notation "moved out" on the envelope. 29

On March 28, 2011, the Court of Appeals resolved to direct Atty. Mortel to
furnish it with Angelita De Jesus’ present and complete address within 10 days
from notice. Atty. Mortel did not comply. 30

In the Resolution dated July 5, 2011, the Court of Appeals again ordered Atty.
Mortel to inform it of Angelita De Jesus’ address within 10 days from
notice. Atty. Mortel did not comply.
31 32

In the Resolution dated October 13, 2011, the Court of Appeals directed Atty.
Mortel, for the last time, to inform it of Angelita De Jesus’ address within 10 days
from notice. Still, Atty. Mortel did not comply.
33 34

In the Resolution dated January 10, 2012, the Court of Appeals ordered Atty.
Mortel to show cause, within 15 days, why he should not be held in contempt for
non-compliance with the Court of Appeals Resolutions. Atty. Mortel ignored
35

this.
36
PALE 27
Authority to Sanction Members of the Bar

In the Resolution dated May 16, 2012, the Court of Appeals found Atty. Mortel
liable for indirect contempt. It ordered him to pay ₱10,000.00 as fine. Atty.
37 38

Mortel did not pay.39

On August 13, 2012, the Court of Appeals resolved to (1) again order Atty.
Mortel to pay, within 10 days from notice, the fine of ₱10,000.00 imposed upon
him under the May 16, 2012 Resolution; (2) require Atty. Mortel to follow the
40

July 5, 2011 and October 13, 2011 Resolutions that sought information from him
as to his client’s present address; and (3) warn him that failure to comply with
41

the Resolutions within the reglementary period will constrain the Court of
Appeals "to impose a more severe sanction against him." Atty. Mortel snubbed
42

the directives.
43

According to the Court of Appeals, the Cashier Division reported that Atty.
Mortel still did not pay the fine imposed despite his receipt of the May 16, 2012,
August 13, 2012, and October 17, 2012 Resolutions. 44

In the Resolution dated April 26, 2013, the Court of Appeals directed Atty. Mortel
to show cause why it should not suspend him from legal practice for ignoring its
May 16, 2012 Resolution (which fined him for ₱10,000.00). The April 26, 2013
45

Resolution was sent to his address on record at Unit 2106, Philippine AXA Life
Center, 1286 Sen. Gil Puyat Ave., Makati City, as shown in the registry return
46

card.47

Despite having ignored 11 Court of Appeals Resolutions, Atty. Mortel did not
48

show cause for him not to be suspended. The Court of Appeals found that his
49

"failure or obstinate refusal without justification or valid reason to comply with


the [Court of Appeals’] directives constitutes disobedience or defiance of the
lawful orders of [the Court of Appeals], amounting to gross misconduct and
insubordination or disrespect." 50

In the Resolution dated August 14, 2013, the Court of Appeals suspended Atty.
Mortel from legal practice for six (6) months and gave him a stern warning
against repeating his actions. Atty. Mortel was also directed to comply with the
51

previous Resolutions of the Court of Appeals. The dispositive portion of the


Resolution reads:
WHEREFORE, Atty. Gideon D.V. Mortel, counsel for respondent-oppositor-
appellant, is hereby SUSPENDED from the practice of law for a period of six (6)
months effective from notice, with a STERN WARNING that a repetition of the
same or similar acts will be dealt with more severely.
Further, Atty. Mortel is DIRECTED to comply with the May 16,
2012 Resolution and other related Resolutions issued by this Court within ten
(10) days from notice hereof.
PALE 28
Authority to Sanction Members of the Bar

Let copies of this Resolution be furnished the Supreme Court for its information
and appropriate action.
SO ORDERED. (Emphasis in the original)
52

On October 2, 2013, pursuant to Rule 138, Section 29 of the Rules of Court,


53

the Court of Appeals submitted before this Court a certified true copy of the
August 14, 2013 Resolution, which suspended Atty. Mortel from legal practice,
together with a statement of facts from which the suspension order was based. 54

On October 23, 2013, the Office of the Bar Confidant issued a Report stating
that it docketed the Court of Appeals’ August 14, 2013 Resolution as a regular
administrative case against Atty. Mortel. 55

In the Resolution dated January 20, 2014, this Court noted and approved the
administrative case, furnished Atty. Mortel a copy of the August 14, 2013
Resolution, and required him to comment within 10 days from notice. This 56

Court forwarded it to his address on record. 57

On February 25, 2014, Atty. Jose read this Court’s January 20,
2014 Resolution meant for Atty. Mortel, and saw that Atty. Mortel had been
58 59

suspended by the Court of Appeals. He "immediately tried looking for Atty.


60

Mortel’s mobile number" to inform him of this development. On the following 61

day, he was able to reach Atty. Mortel through a mutual friend. 62

Four (4) years passed since the Court of Appeals first sent a Resolution to Atty. 63

Mortel, through MFV Jose Law Office, in 2010. Atty. Jose asked Lucero, his
messenger, why these Resolutions were not forwarded to Atty. Mortel. 64

Lucero stated that he would usually text De Leon, Atty. Mortel’s messenger,
whenever there was an order or resolution pertinent to the case. However, after 65

a few messages, De Leon no longer texted back. Lucero added that he "had no
66

other way of finding [De Leon]" and knew nothing of De Leon’s


whereabouts. He hoped that either Atty. Mortel or De Leon would pick up the
67

mails sent by the Court of Appeals for Atty. Mortel. Not knowing how to contact
68

Atty. Mortel’s messenger, Lucero simply kept the copies in the office racks or on
his table.69

On March 5, 2014, Atty. Mortel filed before the Court of Appeals an Omnibus
Motion and Manifestation with Profuse Apologies. He informed the Court of
70

Appeals of his present address at No. 2806 Tower 2, Pioneer Highlands,


Mandaluyong City. He also prayed for (1) the reinstatement of the Motion to
71

Withdraw Appeal, (2) the acceptance of his compliance with the September 20,
2010 and November 11, 2010 Resolutions of the Court of Appeals (which
sought for his client’s conformity to the Motion), (3) the grant of his Motion, and
(4) the recall of all previous orders or resolutions of the Court of Appeals. 72
PALE 29
Authority to Sanction Members of the Bar

In his Comment dated March 7, 2014, Atty. Mortel argues that he honestly
73

believed that the case was already closed and terminated in light of his Motion
to Withdraw Appeal. Atty. Mortel avers that "[h]e did not expect that a
74

requirement of conformity of the client would be needed in as much as the act of


counsel binds the client[.]" According to him, the filing of a motion to withdraw
75

appeal is a matter of right, which did not need his client’s conformity. Thus, he
76

did not bother to visit MFV Jose Law Office again or send his messenger to
check with the law firm if there were resolutions or orders for him.77

According to Atty. Mortel, the Court of Appeals Resolutions never reached


him. He interposes the defense of "sheer lack of or absence of knowledge . . .
78

as all Resolutions of the Court [of Appeals] were received by the messenger of
MFV Jose Law Office but not forwarded to him." Finally, he claims that he had
79

no reason to refuse to comply, had he known of the orders or resolutions. 80

In the Resolution dated February 9, 2015, this Court noted Atty. Mortel’s
81

Comment and required the Sixth Division of the Court of Appeals Manila to file a
reply within 10 days from notice.
In the Resolution dated May 30, 2016, this Court dispensed with the filing of the
82

reply.
For resolution are the following issues:
First, whether there are grounds for this Court to probe into Atty. Marcelino
Ferdinand V. Jose’s possible administrative liability; and
Second, whether respondent Atty. Gideon D.V. Mortel should be imposed a
disciplinary sanction.
I
This Court has the authority to discipline an errant member of the bar. Rule 83

139-B, Section 1 of the Rules of Court provides that "[p]roceedings for the
disbarment, suspension, or discipline of attorneys may be taken by the Supreme
Court motu proprio[.]" However, the lawyer must have the "full opportunity upon
84

reasonable notice to answer the charges against him [or her,] among
others." Thus:
85

RULE 138
ATTORNEYS AND ADMISSION TO BAR
....
SEC. 30. Attorney to be heard before removal or suspension. — No attorney
shall be removed or suspended from the practice of his profession, until he has
had full opportunity upon reasonable notice to answer the charges against him,
to produce witnesses in his own behalf, and to be heard by himself or counsel.
PALE 30
Authority to Sanction Members of the Bar

But if upon reasonable notice he fails to appear and answer the accusation, the
court may proceed to determine the matter ex parte.
Implicit in Atty. Jose and respondent’s arrangement is that Atty. Jose would
update respondent should there be any communication sent to respondent
through his law firm, and that respondent would regularly check with the law firm
if any court-delivered mail arrives for him.
86

Yet, Atty. Jose failed to measure up to his part of the deal. He delegated
everything to his messenger without adequately supervising him. All
communication, court orders, resolutions, notices, or other court processes
addressed to MFV Jose Law Office go through Atty. Jose’s desk for monitoring
and checking. 87

Having monitored and checked at least 12 envelopes from the Court of


88

Appeals meant for respondent, Atty. Jose could have followed up with Lucero if
respondent was actually receiving the Court of Appeals’ orders or resolutions.
This is a fairly simple task requiring a quick yes or no, accomplishable in a few
seconds. As Managing Partner of his firm, Atty. Jose can be expected to have
supervisory duties over his firm’s associates and support staff, among others.
Alternatively, Atty. Jose could have contacted respondent himself. That he did
not know respondent’s number does not suffice. It bears stressing that Atty.
89

Jose and respondent are acquaintances and have common connections. 90

In the first place, Atty. Jose showed that he could easily get respondent’s new
number through a mutual friend. Yet, he only did so four (4) years later. In 91

today’s age of email, social media, web messaging applications, and a whole
gamut of digital technology easing people’s connectivity whenever and wherever
they are, it is fairly easy to get connected with someone without even leaving
one’s location.
Atty. Jose is fully aware of the importance of following court orders and
processes. It is reasonable to expect him to extend assistance to the lawyer to
whom he lent his office address—and in doing so, to the Court of Appeals—in
the speedy and efficient administration of justice in Bank of the Philippine
Islands.
Atty. Jose’s reading of this Court’s January 20, 2014 Resolution is also highly
92

questionable. While the Resolution was sent to his law firm, it was addressed
93

to respondent, a lawyer not under his employ. 94

Canon 21, Rule 21.04 of the Code of Professional Responsibility generally


95

allows disclosure of a client’s affairs only to partners or associates of the law


firm, unless the client prohibits it. Respondent is not a partner or associate of
MFV Jose Law Office. 96
PALE 31
Authority to Sanction Members of the Bar

Even assuming that this Court’s January 20, 2014 Resolution is independent
of Bank of Philippine Islands, the present case being administrative in nature,
Atty. Jose’s action still invites suspicion.
Article III, Section 3(1) of the 1987 Constitution guarantees that:
ARTICLE III
Bill of Rights
....
SECTION 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
Under Article 32 of the Civil Code:
ARTICLE 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
impairs any of the following rights and liberties of another person shall be liable
to the latter for damages:
....
(11) The privacy of communication and correspondence[.]
Atty. Jose took hold of this Court’s correspondence meant for respondent and
read it. On February 25, 2014, he "look[ed] into the said case [and] noticed that
97

the Resolution . . . was already in the pink form issued by the Supreme Court.
[He] saw the word ‘suspended’ and, upon perusal, saw that [respondent] was
now subjected to an administrative case[.]" 98

Atty. Jose may claim that he did so out of concern. However, if he were truly
concerned, his proper recourse would have been to inform respondent about
receiving mail from this Court, not to read it. Moreover, he would have informed
respondent, as early as 2010, that his law firm received several Court of
Appeals correspondences, and that these letters kept arriving for respondent
until 2013. 99

Therefore, under Rule 138, Section 30 of the Rules of Court, this Court directs
100

Atty. Jose to show cause, within 10 days from receipt of a copy of this
Resolution, why he should not be administratively sanctioned for failing to
ensure respondent’s prompt receipt of the Court of Appeals Resolutions, and for
reading this Court’s Resolution addressed to respondent.
II
PALE 32
Authority to Sanction Members of the Bar

Atty. Jose stated under oath that respondent requested to use MFV Jose Law
Office’s address as his mailing address only in August 2010, after respondent
101

had already filed his appeal. The exact day in August is unknown.
102

Assuming respondent’s request was granted as early as August 1, 2010, this


does not help him in any way. The Court of Appeals Notice for respondent to file
an appellant’s brief was issued one (1) month earlier, on July 20, 2010, when
respondent still presumably used his old address on record at Herrera Tower,
Rufino St., corner Valero St., Makati City. 103

Thus, respondent’s sending De Leon, his messenger, to the new forwarding


address at MFV Jose Law Office to get updates anytime between August 1,
2010 and August 16, 2010 (when he filed the Motion) would certainly have
104

yielded no result. In this hypothetical scenario, the Court of Appeals would have
sent the Notice to his old address on record. That he allegedly did not receive
the July 20, 2010 Notice from the Court of Appeals was, therefore, his own
lookout.
Assuming MFV Law Office accommodated respondent’s request after August
16, 2010, there could have been no instance where respondent sent De Leon to
MFV Law Office, if this Court were to believe his statement that he stopped
contacting MFV Law Office after he filed the Motion. 105

In either case, respondent had been remiss in his duty to keep himself informed
on the status of the case.
Respondent presents a different version of the facts. According to him, he
requested to use MFV Law Office’s address "as his mailing address for the
[purpose of] filing of the appeal[.]" This hints that he made his request before
106

he even elevated Bank of the Philippine Islands to the Court of Appeals, and
precisely for that purpose.
While the records do not show when respondent filed the appeal, it certainly
happened before July 20, 2010, the date when the Court of Appeals issued the
Notice for respondent to file an appellant’s brief. Under the Internal Rules of
107

the Court of Appeals, issuing a notice to file appellant’s brief means that it has
already received the appeal. Thus, insofar as respondent is concerned, the
108

July 20, 2010 Notice reached MFV Law Office, not his old address on record.
109

Respondent further claims:


[O]n the account of the Honorable Court [of Appeals] in its Resolution dated 14
August 2013 the Court [of Appeals] issued already a "Notice" to file appellant’s
brief on July 20, 2010 signifying that there was already a notice received by the
staff of M V F [sic] Jose Law Office but was not forwarded to the undersigned
counsel. This demonstrated that the very first Order issued by the Court [of
Appeals] was received by the aforesaid law office but was not forwarded to the
PALE 33
Authority to Sanction Members of the Bar

undersigned counsel and the same was true to all subsequent Orders or
Resolutions issued by the Court of Appeals[.] (Emphasis supplied)
110

Respondent dates back his request to use MFV Law Office’s address before
July 20 2010, while Atty. Jose avows that it happened in August 2010. The 111

inconsistent narration of facts shows that one of them did not give a truthful
account on the matter.
In any of the scenarios presented, respondent’s gross negligence and lack of
foresight is apparent. Respondent did not make it easy for MFV Law Office to
reach him personally or through his messenger.
First, respondent personally stopped visiting and communicating with the law
firm after August 16, 2010. A total of 12 Court of Appeals Resolutions arrived
112

at MFV Law Office after that date.


Second, respondent asked De Leon to stop going to the law firm after August
16, 2010. This may explain why De Leon no longer replied to Lucero, Atty.
113

Jose’s messenger, after a few text exchanges. Lucero states that he had no
114

idea how to find De Leon, and had not seen respondent for years. 115

Third, Atty. Mortel did not update MFV Law Office of his or De Leon’s present
work or phone number(s). Atty. Jose had to look for respondent’s mobile
116

number four (4) years later just so he could inform respondent about this
117

Court’s Resolution. Meanwhile, Lucero assumed that De Leon changed his


118

number as De Leon could no longer be reached. 119

Fourth, there is no allegation that respondent left other contact details to MFV
Law Office, such as his home address, as a safety net.
What follows from all these is that respondent failed to adopt an "efficient and
orderly system of receiving and attending promptly to all judicial notices." The 120

fault was his to bear.


In Gonzales v. Court of Appeals: 121

We hold that an attorney owes it to himself and to his clients to adopt an efficient
and orderly system of receiving and attending promptly to all judicial notices. He
and his client must suffer the consequences of his failure to do so particularly
where such negligence is not excusable as in the case at bar. . . .
Aside from his failure to adopt an organized and efficient system of managing
his files and court notices, we also note that petitioner’s counsel, Atty. Almadro,
allowed one year to lapse before he again acted on the appeal of his client. . . .
Subsequently, the notice to file the appellant’s brief was received by the
househelp of Atty. Almadro, petitioner’s counsel, on February 21, 1996. It was
only on July 11, 1996 that Atty. Almadro claims to have discovered the notice. . .
PALE 34
Authority to Sanction Members of the Bar

. Atty. Almadro apparently never bothered to check why he had not received any
notice for the filing of his client’s (appellant’s) brief.
122

Similarly, in this case, respondent did not adequately inquire why he had not
received any notice for the filing of Angelita De Jesus’ appellant’s brief." He 123

should have assumed that the Court of Appeals would send him a notice
regarding his appeal. Yet, he instructed De Leon to go to MFV Law Office only
initially, and cut contact with the law firm after August 16, 2010.
124 125

According to respondent, he was "completely unaware of the existence of the


Court [of Appeals’] Orders or Resolutions." He claims that his failure to comply
126

was made in good faith and was not done intentionally. 127

We are not convinced.


Respondent’s disobedience of court orders, while it may not have been
malicious, was certainly willful. He knew of the consequences of disregarding
court orders, yet he did not take steps to prevent it from happening. He used
Atty. Jose’s office address for Bank of the Philippine Islands, but did not ensure
that he could actually receive the Court of Appeals Notices and Resolutions.
That respondent was able to receive this Court’s Resolution through MFV Law
Office in 2014 shows that it was also possible for him to have received the Court
of Appeals Notice and Resolutions from 2010 to 2013, had he only cared to do
so.
III
Respondent attempts to escape liability by invoking Rule 50, Section 3 of the 128

Rules of Court, which states that withdrawal of appeal is a matter of right before
the filing of the appellee’s brief. He claims to have honestly believed that the
filing of the motion had the effect of withdrawal of appeal. Thinking that the
129

case had been closed and terminated, he forgot all about it. 130

Respondent prides himself in wanting to become a judge, joining the 30th


Prejudicature program, and taking the "masterate [sic] and doctoral degree[s] in
law[.]" In terms of legal knowledge and conduct, more is expected of him.
131

Filing a motion to withdraw appeal does not result in automatic withdrawal of the
appeal. The next-level court, before which a motion to withdraw appeal is filed,
still needs to resolve this motion. A motion prays for a relief other than by a
pleading. As the court may either grant or deny a motion, or otherwise defer
132

action on it until certain conditions are met, lawyers have the obligation to
apprise themselves of the court’s resolution, and not to simply second-guess it.
In this case, before the Court of Appeals acted on respondent’s Motion, it first
required proof of the client’s conformity. It is not unlikely that the Court of
133 134
PALE 35
Authority to Sanction Members of the Bar

Appeals wanted to ensure that Angelita De Jesus voluntarily agreed to the


withdrawal of the appeal—that is, without force, intimidation, or coercion—and
that, despite losing the case before the lower court, she was fully informed of the
legal consequences of the contemplated action.
Thus, respondent cannot excuse himself from complying with the Court of
Appeals’ July 20, 2010 Notice simply because he "belie[ved] that the case has
long been closed and terminated" when he filed the Motion to Withdraw
Appeal. Ignorance of the law excuses no one from compliance. Respondent
135 136

could not safely assume that the case had already been closed and terminated
until he received the Court of Appeals resolution on the matter.
IV
Both respondent and Atty. Jose point a finger at Lucero, Atty. Jose’s
137 138

messenger, while Lucero points a finger at De Leon, respondent’s messenger. 139

According to respondent, Lucero simply left the Resolutions in MFV Law Office’s
racks or in Lucero’s table[.]" Lucero states that he did not know the relevance of
140

the Court of Appeals Resolutions or the importance of these to


respondent. For a law firm messenger to have no clue about the importance of
141

a court issuance is doubtful. What is more plausible is that the messenger,


being outside this Court’s disciplinary arm, is serving as a convenient
scapegoat.
Even assuming that only the messengers are at fault, neither counsel can blame
anyone but themselves for assigning an important matter to "incompetent or
irresponsible person[s]." In Gonzales, "[i]f petitioner’s counsel was not
142

informed by his house-help of the notice which eventually got misplaced in his
office files, said counsel has only himself to blame for entrusting the matter to an
incompetent or irresponsible person[.]" 143

Respondent gave the MFV Law Office’s address to the Court of Appeals. Thus,
this is presumably where he wanted the orders of the Court of Appeals sent. He
cannot later excuse himself from complying with the court orders by stating that
he did not actually receive these orders for three (3) years. Respondent is
estopped from raising it as a defense. As far as courts are concerned, orders
and resolutions are received by counsel through the address on record they
have given.
It is well-noted that respondent informed the Court of Appeals of his present
address (No. 2806 Tower 2, Pioneer Highlands, Mandaluyong City) only on
March 3, 2014. 144

V
PALE 36
Authority to Sanction Members of the Bar

Respondent’s defiance of the Court of Appeals Notice and Resolutions shows a


blatant disregard of the system he has vowed to support." When he took his
145

oath as attorney, he has sworn to do as follows:


I, do solemnly swear that . . . I will support the Constitution and obey the laws as
well as the legal orders of the duly constituted authorities therein . . . 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 these voluntary obligations without any mental reservation
or purpose of evasion. So help me God. (Emphasis supplied)
An oath is not an empty promise, but a solemn duty. Owing good fidelity to the
court, lawyers must afford due respect to "judicial officers and other duly
constituted authorities[.]" Under the Code of Professional Responsibility:
146

CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY


AND DIGNITY OF THE LEGAL PROFESSION. . . .
....
CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO
THE COURT.
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.
CANON 12 - A LAWYER SHALL EXERT EVERY EFFORT AND CONSIDER IT
HIS DUTY TO ASSIST IN THE SPEEDY AND EFFICIENT ADMINISTRATION
OF JUSTICE.
In Bantolo v. Atty. Castillon Jr.: 147

Lawyers are particularly called upon to obey court orders and processes, and
this deference is underscored by the fact that willful disregard thereof may
subject the lawyer not only to punishment for contempt but to disciplinary
sanctions as well. Such is the situation in the instant case. We need not delve
into the factual findings of the trial court and the Court of Appeals on the
contempt case against respondents. Suffice it to say that respondent lawyer’s
commission of the contumacious acts have been shown and proven, and
eventually punished by the lower courts. (Emphasis supplied)
148

In its May 16, 2012 Resolution, the Court of Appeals found respondent guilty for
indirect contempt of court. On top of respondent’s punishment for contempt,
149

his willful disobedience of a lawful order of the Court of Appeals is a ground for
respondent’s removal or suspension.
Rule 138, Section 27 of the Rules of Court states:
PALE 37
Authority to Sanction Members of the Bar

SEC. 27. Attorneys removed or suspended by Supreme Court on what grounds.


– A member of the bar may be removed 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 admission to practice, or for a willful
disobedience of any lawful order of a superior court, or for corruptly or wilfully
appearing as an attorney for a party to a case without authority so to do. The
practice of soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice.
In Sebastian v. Atty. Bajar, this Court ordered the lawyer to file a rejoinder
150

within 10 days from notice, but she was able to file only after one (1) year. The
151

lawyer was also ordered to comment on the complainant’s manifestation, but


instead of filing a comment, she submitted a manifestation about four (4) months
after. Suspending the lawyer for three (3) years, this Court stated that the
152

lawyer’s "cavalier attitude in repeatedly ignoring the orders of the Supreme


Court constitutes utter disrespect to the judicial institution."
153

In this case, respondent utterly disrespected the lawful orders of the court by
ignoring 12 Court of Appeals Resolutions. In Ong v. Atty. Grijaldo:
154 155

[Respondent’s] conduct indicates a high degree of irresponsibility. A resolution


of this Court is not to be construed as a mere request, nor should it be complied
with partially, inadequately or selectively. Respondent’s obstinate refusal to
comply therewith not only betrays a recalcitrant flaw in his character; it also
underscores his disrespect of our lawful orders which is only too deserving of
reproof.
Any departure from the path which a lawyer must follow as demanded by the
virtues of his profession shall not be tolerated by this Court as the disciplining
authority. This is especially so, as in the instant case, where respondent even
deliberately defied the lawful orders of the Court for him to file his comment on
the complaint, thereby transgressing Canon 11 of the Code of Professional
Responsibility which requires a lawyer to observe and maintain the respect due
the courts. (Emphasis supplied, citations omitted)
156

In Richards v. Asoy, the lawyer failed to comply with this Court’s Resolution
157

requiring him to file a comment and show cause why he should not be
administratively sanctioned or cited in contempt. He was also asked to comply
158

with this Court’s other Resolution requiring him to reimburse the complainant
within 10 days from notice. This Court found that respondent "had gone into
159

hiding and was evading service of pleadings/orders/processes of this


Court." For the lawyer’s grave misconduct, this Court indefinitely suspended
160

him from legal practice. When the lawyer later sought to be readmitted to the
161

bar, this Court denied his Petition to be reinstated. The lawyer was found to
162
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Authority to Sanction Members of the Bar

have failed to justify the long delay of nine (9) years in complying with this
Court’s Resolutions to reimburse complainant:
Respondent’s justification for his 9-year belated "compliance" with the order for
him to reimburse complainant glaringly speaks of his lack of candor, of his
dishonesty, if not defiance of Court orders, qualities that do not endear him to
the esteemed brotherhood of lawyers. The solemn oath which all lawyers take
upon admission to the bar to dedicate their lives to the pursuit of justice is
neither a mere formality nor hollow words meant to be taken lightly, but a sacred
trust that lawyers must uphold and keep inviolable at all times. The lack of any
sufficient justification or explanation for the nine-year delay in complying with the
Court’s July 9, 1987 and March 15, 1988 Resolutions to reimburse complainant
betrays a clear and contumacious disregard for the lawful orders of this Court.
Such disrespect on the part of respondent constitutes a clear violation of the
lawyer’s Code of Professional Responsibility[.]
....
Respondent denigrates the dignity of his calling by displaying a lack of candor
towards this Court. By taking his sweet time to effect reimbursement . . . he sent
out a strong message that the legal processes and orders of this Court could be
treated with disdain or impunity. (Citations omitted)
163

Here, respondent failed to justify the long delay of at least three (3) years in 164

complying with the Court of Appeals Resolutions requiring his client’s written
conformity to the Motion (2010) and information on his client’s current address
165

(2011). 166

Respondent also failed to justify the long delay in complying with other Court of
Appeals Resolutions (a) requiring him to show cause why he should not be cited
in contempt, and to comply with the Court of Appeals’ earlier Resolutions; (b) 167

citing him in indirect contempt and ordering him to pay a fine of ₱10,00000; (c) 168

reiterating the Resolutions that directed him to pay the fine and inform the Court
of Appeals of his client’s address, and warning him of a more severe sanction
should he fail to do so; (d) requiring him to show cause why he should not be
169

suspended from the practice of law for his refusal to pay the fine; and (e)
ordering him to again to comply with the Resolution that directed him to pay the
fine.
170

Moreover, even after he found out about the developments of the


case, respondent still did not take immediate actions to observe all of the Court
171

of Appeals Resolutions. Nowhere in the records does it show that he complied


with the May 16, 2012, August 13, 2012, and October 17, 2012 Resolutions
directing him to pay ₱10,000.00 as fine for his non-compliance with the earlier
Court of Appeals Resolutions.
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Authority to Sanction Members of the Bar

Thus, despite respondent’s profuse apologies to the Court of Appeals, the


172

"evidence of atonement for [his] misdeeds is sorely wanting." 173

In Cuizon v. Atty. Macalino, this Court disbarred a lawyer for his obstinate
174

failure to comply with this Court’s Resolutions requiring him to file his comment
and for issuing a bouncing check. Found liable for contempt of court, the
175

lawyer was ordered imprisoned until he complied with this Court’s Resolution to
pay a fine and submit his comment:
By his repeated cavalier conduct, the respondent exhibited an unpardonable
lack of respect for the authority of the Court.
As an officer of the court, it is a lawyer’s duty to uphold the dignity and authority
of the court. The highest form of respect for judicial authority is shown by a
1âwphi1

lawyer’s obedience to court orders and processes. (Citations omitted)


176

Respondent’s actions shatter the dignity of his profession. He exhibited disdain


for court orders and processes, as well as a lack of fidelity to the court. In "taking
his sweet time to effect" compliance with the Court of Appeals Resolutions, he
177

sends the message that he is above the duly constituted judicial authorities of
this land, and he looks down on them with condescension. This Court agrees
with the Court of Appeals that his acts constitute gross misconduct and
insubordination or disrespect of court.
Gross misconduct is defined as an "inexcusable, shameful or flagrant unlawful
conduct" in administering justice, which prejudices the parties’ rights or
178

forecloses a just determination of the case. As officers of the court, lawyers


179

themselves should be at the forefront in obeying court orders and processes.


Respondent failed in this regard. His actions resulted in his client’s prejudice.
VI
Respondent states that "[t]he ironical truth on this legal controversy is that the
client-appellant represented by undersigned counsel was satisfied, contented
and has fully benefited from the legal services rendered by him." Presenting the
180

affidavit of Jim Dulay (Dulay), Angelita De Jesus’ Attorney-in-Fact, respondent


181

brandishes his client’s pleasure with his legal services. According to 182

respondent, "[t]he client-appellant in the same affidavit expressed that [Dulay]


was not prejudiced in any manner." 183

This is not true.


Angelita De Jesus was prejudiced by respondent’s willful disobedience of the
lawful orders of the Court of Appeals. Respondent’s failure to comply with the
September 20, 2010 Resolution (requiring his client’s conformity to the Motion to
Withdraw Appeal) and November 11, 2010 Resolution (reiterating the
requirement of his client’s conformity to the Motion) resulted in the denial of the
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Motion on February 23, 2011. The period within which to appeal the February
184

23, 2011 denial had clearly lapsed when respondent filed the Omnibus Motion
185

before the Court of Appeals on March 5, 2014. 186

Dulay wanted to withdraw the appeal, but respondent’s negligence and lack of
187

prudence resulted in an outcome opposite of what Angelita De Jesus, through


Dulay, sought his services for. Under the Code of Professional Responsibility:
CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE
AND DILIGENCE.
....
Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his
negligence in connection therewith shall render him liable.
Rule 18.04 - A lawyer shall keep the client informed of the status of his case and
shall respond within a reasonable time to the client’s request for information.
In Ong, this Court found that the lawyer violated his duty to his client in failing to
update the client on the status of the case. The lawyer’s incompetence,
188

neglect, and failure to update his client, in addition to his misappropriation of his
client’s money, led to his disbarment from the practice of law. 189

Here, respondent blindsided his client on the real status of Bank of Philippine
Islands. He failed to diligently attend to the legal matter entrusted to him. The
1âwphi1

case, instead of being closed and terminated, came back to life on appeal due
to his neglect and lack of diligence. As the Court of Appeals correctly found:
Failure of Atty. Mortel to comply with the Resolutions of [the Court of Appeals]
has prejudiced the right of his client, herein respondent-oppositor-appellant, to a
just determination of her cause. His failure or obstinate refusal without
justification or valid reason to comply with [the Court of Appeal’s] directives
constitutes disobedience or defiance of the lawful orders of [the Court of
Appeals], amounting to gross misconduct and insubordination or disrespect. The
foregoing acts committed by Atty. Mortel are sufficient cause for his suspension
pursuant to Sec. 28, in relation to Section 27 of Rule 138 of the Rules of Court. 190

Respondent’s "negligence shows a glaring lack of the competence and diligence


required of every lawyer." 191

For his gross misconduct, insubordination, and disrespect of the Court of


Appeals directives, and for his negligence of his client’s case, respondent must
be suspended from the practice of law for one (1) year, with a stern warning that
a repetition of the same or similar act shall be dealt with more severely.
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Authority to Sanction Members of the Bar

WHEREFORE, Atty. Marcelino Ferdinand V. Jose is DIRECTED to show cause,


within ten (10) days from receipt of a copy of this Resolution, why he should not
be disciplined by this Court.
Respondent Atty. Gideon D.V. Mortel is SUSPENDED from the practice of law
for (1) year for violating Canons 7, 10, 11, 12, and 18, Rules 18.03 and 18.04 of
the Code of Professional Responsibility. He is STERNLY WARNED that
repetition of the same or similar act shall be dealt with more severely.
Let a copy of this Resolution be attached to respondent's personal records as
attorney, and be furnished to the Integrated Bar of the Philippines and all courts
in the country through the Office of the Court Administrator.
SO ORDERED.
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Authority to Sanction Members of the Bar

A.C. No. 10583 February 18, 2015


[Formerly CBD 09-2555]

ROBERTO BERNARDINO, Complainant,


vs.
ATTY. VICTOR REY SANTOS, Respondent.

x-----------------------x

A.C. No. 10584


[Formerly CBD 10-2827]

ATTY. JOSE MANGASER CARINGAL, Complainant,


vs.
ATTY. VICTOR REY SANTOS, Respondent.

RESOLUTION

LEONEN, J.:

These cases involve administrative Complaints1 against Atty. Victor


Rey Santos for violation of Canon 10, Rule 10.012 and Canon 15,
Rule 15 .033 of the Code of Professional Responsibility.

In A.C. No. 10583, complainant Roberto C. Bernardino


(Bernardino) filed a Letter-Complaint4 against Atty. Victor Rey
Santos (Atty. Santos) before the Integrated Bar of the Philippines,
praying that Atty. Santos be investigated and subjected to
disciplinary action.5

Bernardino alleged that the death certificate of his aunt, Rufina de


Castro Turla, was falsified by Atty. Santos. Atty. Santos made it
appear that Rufina Turla died in 1992, when in fact, she died in
1990.6

Atty. Santos used the falsified death certificate to -support the


Affidavit of Self-Adjudication7 executed by Mariano Turla, husband
of Rufina Turla.8 Paragraph 6 of the Affidavit of Self-Adjudication
prepared by Atty. Santos states:

Being her surviving spouse, I am. the sole legal heir entitled to
succeed to and inherit the estate of said deceased who did not
leave any descendant or any other heir entitled to her
estate.9 (Emphasis in the original underscoring supplied)

Years later, Atty. Santos, on behalf of Marilu Turla, daughter of


Rufina and Mariano Turla,10 filed a Complaint11 for sum of money
with prayer for Writ of Preliminary Injunction and temporary
restraining order against Bernardino, docketed as Civil Case No.
09-269.12
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Authority to Sanction Members of the Bar

The Complaint in Civil Case No. 09-269 alleged that Marilu Turla
is an heir of Mariano Turla,13 which allegedly contradicts the
Affidavit of Self-Adjudication that Atty. Santos drafted.14 Hence,
Atty. Santos represented clients with conflicting interests.15

In Civil Case No. 09-269, Atty. Santos testified during cross-


examination:

CROSS-EXAMINATION BY:

ATTY. CARINGAL

....

Q : In your Judicial Affidavit[,] you mentioned that you know


Marilu C. Turla[,] the plaintiff[,] since she was about four years
old.

A : Yes, sir.

Q : As a matter of fact[,] you know her very well[,] considering that


you are a Ninong of the plaintiff, isn’t it?

A : I was not a Ninong when I first knew Marilu Turla, I was just
recently married to one of her cousins.

....

Q : Now, the parents of Marilu Turla are Mariano C. Turla and


Rufina C. Turla?

THE WITNESS

: Yes, sir. As per my study and as per my knowledge of her


relationship[s].

THE COURT

: What’s the name of the mother?

ATTY. CARINGAL

: Rufina, your Honor. Rufina Turla.

Q : And wife died ahead of Mariano, isn’t it?

THE WITNESS

: Yes, sir.

Q : And of course, being the daughter of Rufina Turla, Marilu is


also an heir of Rufina Turla, isn’t it?

A : Of course.
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Authority to Sanction Members of the Bar

Q : Now, we go by the ethics of the profession, Mr. Witness.

You recall[,] of course[,] and admitted [sic] in court that you


drafted this document which you requested to be marked as
Exhibit B.

THE COURT

: Exhibit?

ATTY. CARINGAL

: "B", your Honor, in particular reference to the Affidavit of


Adjudication for the extra judicial settlement of the intestate estate
of the late Rufina De Castro Turla[,] and I have just learned from
you as you just testified. Rufina is the mother of the plaintiff
here[,] Marilu Turla.

THE WITNESS

: Yes, sir.

Q : And as you admitted, you prepared you drafted [sic] this Extra
Judicial.

A : Yes, sir.

Q : Or this Affidavit of Adjudication.

ATTY. REY SANTOS

: At this point in time, your Honor, I would object to the question


regarding my legal ethics because it is not the issue in this case.

....

ATTY. CARINGAL

....

Q : . . . In this document consisting of one, two, three, four and


appearing to have been duly notarized on or about 29th [of] June
1994 with document number 28, page number 7, book

number 23, series of 1994 before Notary Public Hernando P.


Angara. I call your attention to the document[,] more particularly[,]
paragraph 6 thereof and marked as Exhibit 7-A for the
defendants[.] I read into the record and I quote, "Being her
surviving spouse, I am the sole legal heir entitled to succeed to
and inherit the estate of the said deceased who did not leave any
descendant, ascendant or any other heir entitled to her
estate."16 Mr. Witness, is this particular provision that you have
drafted into this document . . . true or false?
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Authority to Sanction Members of the Bar

ATTY. REY SANTOS

: Your Honor, I would like to reiterate that any question regarding


the matter that would impugn the legitimacy of the plaintiff,
Marilu Turla[,]is impertinent and immaterial in this case[.] [I]t was
only the wife Rufina Turla [who] ha[s] the right to impugn the
legitimacy of the plaintiff[,] and that has been the subject of my
continuing objection from the very beginning.

THE COURT

: But then again[,] you have presented this document as your


Exhibit B[.] [Y]ou have practically opened the floodgate to . . .
questions on this document.

ATTY. REY SANTOS

: Only for the purposes [sic] of showing one or two . . . properties


owned by the late Mariano Turla, your Honor. That is why that’s
only [sic] portion I have referred to in marking the said documents,
your Honor.

THE COURT

: So, you now refused [sic] to answer the question?

ATTY. REY SANTOS

: No, I am not refusing to answer, I am just making a


manifestation.

ATTY. CARINGAL

: What is the answer, is it true or false, your Honor[?]

ATTY. REY SANTOS

: My answer regarding the same would be subject to my objection


on the materiality and impertinency and relevancy of this
question, your Honor[,] to this case.

THE COURT

: So anyway, the court has observed the continuing objection


before[,] and to be consistent with the ruling of the court[,] I will
allow you to answer the question[.] [I]s it true or false?

THE WITNESS

: No, that is not true.

ATTY. CARINGAL
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Authority to Sanction Members of the Bar

: That is not true. Mr. Witness, being a lawyer[,] you admit before
this court that you have drafted a document that caused the
transfer of the estate of the decease[d] Rufina Turla.

THE WITNESS

: Yes, sir.

....

ATTY. CARINGAL

Q : This document, this particular provision that you said was


false, you did not tell anybody[,] ten or five years later[,] that this is
false, is it not?

THE WITNESS

: I called the attention of Mr. Mariano Turla[.] I . . . asked him


what about Lulu17 she is entitled [sic] to a share of properties and
he . . . told me, "Ako na ang bahala kay Lulu[,] hindi ko
pababayaan yan". So, he asked me to proceed with the Affidavit of
Adjudication wherein he claimed the whole [sic]properties for
himself.18 (Emphasis supplied)

Another Complaint19 was filed against Atty. Santos by Atty. Jose


Mangaser Caringal (Atty. Caringal). This was docketed as A.C. No.
10584.20 Similar to Bernardino’s Complaint, Atty. Caringal alleged
that Atty. Santos represented clients with conflicting interests. 21 He
also alleged that in representing Marilu Turla, Atty. Santos would
necessarily go against the claims of Mariano Turla.22

Also, in representing Marilu Turla, Atty. Santos was allegedly


violating the so-called "Dead Man’s Statute"23 because "he [would]
be utilizing information or matters of fact occurring before the
death of his deceased client. Similarly, he . . . [would] be
unscrupulously utilizing information acquired during his
professional relation with his said client . . . that [would]
constitute a breach of trust . . . or of privileged communication[.]"24

Atty. Caringal further alleged that Atty. Santos violated Canon


1225 of the Code of Professional Responsibility when he filed several
cases against the other claimants of Mariano Turla’s estate. 26 In
other words, he engaged in forum shopping.27

In addition, Atty. Santos allegedly violated Canon 10, Rule


10.0128 of the Code of Professional Responsibility when he drafted
Mariano Turla’s Affidavit of Self-Adjudication. The Affidavit states
that Mariano Turla is the sole heir of Rufina Turla, but Atty.
Santos knew this to be false.29 Atty. Santos’ wife, Lynn Batac, is
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Authority to Sanction Members of the Bar

Mariano Turla’s niece.30 As part of the family, Atty. Santos knew


that Rufina Turla had other heirs.31 Atty. Caringal further alleged:

14.4 Being the lawyer of Mariano Turla in the drafting of the


document some fifteen years ago, he is fully aware of all the
circumstances therein recited. Moreover at that time, the [sic]
Lynn Batac Santos was then employed at the BIR[sic] who
arranged for the payment of the taxes due. There is some
peculiarity in the neat set up [sic] of a husband and wife team
where the lawyer makes the document while the wife who is a BIIR
[sic] employee arranges for the payment of the taxes due the
government;

14.5 Respondent attorney could not have been mistaken about the
fact recited in the Affidavit of Adjudication, etc. that said deceased
(Rufina de Castro Turla) "did not leave any descendant, xxx, or any
other heir entitled to her estate’ [sic] . . . [.] 32 (Emphasis in the
original)

Atty. Caringal argued that Atty. Santos was bound by the


statement in Mariano Turla’s affidavit that Rufina Turla had no
other heir.33

Moreover, Atty. Santos allegedly converted funds belonging to the


heirs of Mariano Turla for his own benefit. The funds involved were
rental income from Mariano Turla’s properties that were supposed
to be distributed to the heirs. Instead, Atty. Santos received the
rental income.34 Lastly, Atty. Caringal alleged that Atty. Santos
cited the repealed Article 262 of the Civil Code in his arguments.35

In his Answer,36 Atty. Santos denied having falsified the death


certificate.37 He explained that the death certificate and the
Affidavit of Self-Adjudication were given to him by Mariano Turla
and that he was not aware that there was a falsified entry in the
death certificate.38

As regards the issue on conflict of interest, Atty. Santos argued


that he did not represent and was not representing conflicting
interests since Mariano Turla was already dead.39 Further, "he
[was] representing Marilu Turla against those who ha[d] an
interest in her father’s estate."40 Mariano Turla’s Affidavit of Self-
Adjudication never stated that there was no other legal heir but
only "that Mariano Turla was the sole heir of Rufina Turla." 41

Regarding the allegations of Atty. Caringal, Atty. Santos insisted


that he did not commit forum shopping because the various cases
filed had different issues.42

As to the conversion of funds, Atty. Santos explained that the


funds used were being held by his client as the special
administratrix of the estate of Mariano Turla. 43 According to Atty.
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Authority to Sanction Members of the Bar

Santos, payment of attorney’s fees out of the estate’s funds could


be considered as "expenses of administration."44 Also, payment of
Atty. Santos’ legal services was a matter which Atty. Caringal had
no standing to question.45

On the allegation that Atty. Santos cited a repealed provision of


law, he discussed that Article 262 of the Civil Code is applicable
because it was in force when Marilu Turla’s birth certificate was
registered.46

The Commission on Bar Discipline of the Integrated Bar of the


Philippines recommended that Atty. Santos be suspended for three
(3) months.47

It found that Bernardino failed to prove his allegation that Atty.


Santos knew that the death certificate was falsified and used it to
support Mariano Turla’s Affidavit of Self-Adjudication.48 Likewise,
Atty. Caringal failed to prove that Atty. Santos converted funds
from Mariano Turla’s estate.49

With regard to the citation of a repealed provision, the Commission


on Bar Discipline stated that the evidence presented did not prove
that Atty. Santos "knowingly cited a repealed law."50 Further, Atty.
Santos did not engage in forum shopping. The various cases filed
involved different parties and prayed for different reliefs.51

However, the Commission on Bar Discipline agreed with


Bernardino and Atty. Caringal that Atty. Santos represented
clients with conflicting interests.52 The Report and
Recommendation53 of the Commission on Bar Discipline stated:

. . . Canon 15 of the Code of Professional Responsibility


particularly Rule 15.03 specifically proscribes members of the bar
from representing conflicting interests. The Supreme Court has
explained that "the proscription against representation of
conflicting interest finds application where the conflicting interests
arise with respect to the same general matter and is applicable
however slight such adverse interest may be; the fact that the
conflict of interests is remote or merely probable does not make
the prohibition inoperative."

....

. . . In the case at bar, the fact that the respondent represented


Mariano Turla is no secret. The respondent has in a number of
pleadings/motions/documents and evenon the witness stand
admitted that he drafted Mariano Turla’s Affidavit of Adjudication
which expressly states that he was the sole heir of Rufina Turla.

And then he afterwards agreed to represent Marilu Turla who


claimed to be Mariano Turla’s daughter. To substantiate her claim
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Authority to Sanction Members of the Bar

that she is Mariano Turla’s daughter, the respondent admitted


that he relied on the birth certificate presented by Marilu Turla[,]
which indicates that she is not only the daughter of Mariano Turla
but also of Rufina Turla as evidenced by the Birth Certificate
presented stating that Rufina Turla is Marilu Turla’s mother. This
means that Marilu Turla was also a rightful heir to Rufina Turla’s
inheritance and was deprived of the same because of the Affidavit
of Adjudication which he drafted for Mariano Turla[,] stating that
he is his wife’s sole heir.

. . . To further explain, the respondent[,] in agreeing to represent


Marilu Turla[,] placed himself in a position where he is to refute
the claim in Mariano Turla’s Affidavit of Adjudication that he is the
only heir of Rufina Turla.54 (Citations omitted)

In the Resolution55 dated May 10, 2013, the Board of Governors of


the Integrated Bar of the Philippines (IBP Board of Governors)
adopted and approved the findings and recommendations of the
Commission on Bar Discipline.

Atty. Santos filed a Motion for Partial Reconsideration, 56 which was


denied by the IBP Board of Governors in the Resolution 57 dated
March 22, 2014.

This administrative case was forwarded to this court through a


letter of transmittal dated July 15, 2014,58 pursuant to Rule 139-B,
Section 12(b) of the Rules of Court which provides:

RULE 139-B
DISBARMENT AND DISCIPLINE OF ATTORNEYS

SEC. 12. Review and decision by the Board of Governors.—

....

(b) If the Board, by the vote of a majority of its total membership,


determines that the respondent should be suspended from the
practice of law or disbarred, it shall issue a resolution setting forth
its findings and recommendations which, together with the whole
record of the case, shall forthwith be transmitted to the Supreme
Court for final action.

The issues in this case are: (1) whether respondent Atty. Santos
violated the Code of Professional Responsibility; and (2) whether
the penalty of suspension of three (3) months from the practice of
law is proper.

This court accepts and adopts the findings of fact of the IBP Board
of Governors’ Resolution. However, this court modifies the
recommended penalty of suspension from the practice of law from
three (3) months to one (1) year.
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Authority to Sanction Members of the Bar

Canon 15, Rule 15.03 of the Code of Professional Responsibility


states:

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 rule on conflict of interest is based on the fiduciary obligation


in a lawyer-client relationship. Lawyers must treat all information
received from their clients with utmost confidentiality in order to
encourage clients to fully inform their counsels of the facts of their
case.59 In Hornilla v. Atty. Salunat,60 this court explained what
conflict of interest means:

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.61 (Emphasis supplied,
citations omitted)

Applying the test to determine whether conflict of interest exists,


respondent would necessarily refute Mariano Turla’s claim that he
is Rufina Turla’s sole heir when he agreed to represent Marilu
Turla. Worse, he knew that Mariano Turla was not the only heir.
As stated in the Report of the Commission on Bar Discipline:

Worse[,] the respondent himself on the witness stand during his


April 14, 2009 testimony in the Civil Case for Sum of Money with
Prayer of Writ of Preliminary Injunction and Temporary
Restraining Order docketed as Civil Case No. 09-269 filed with the
RTC of Makati City admitted as follows: "I called the attention of
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Authority to Sanction Members of the Bar

Mr. Mariano Turla[.] I . . . asked him what about Lulu she is


entitled [sic] to a share of properties and he . . . told me, ‘Ako na
ang bahala kay Lulu[,] hindi ko pababayaan yan.’ So he asked me
to proceed with the Affidavit of Adjudication wherein he claimed
the whole [sic] properties for himself." This very admission proves
that the respondent was privy to Marilu Turla’s standing as a legal
and rightful heir to Rufina Turla’s estate.62 (Citation omitted)

However, Rule 15.03 provides for an exception, specifically, "by


written consent of all concerned given after a full disclosure of the
facts."63 Respondent had the duty to inform Mariano Turla and
Marilu Turla that there is a conflict of interest and to obtain their
written consent.

Mariano Turla died on February 5, 2009,64 while respondent


represented Marilu Turla in March 2009.65 It is understandable
why respondent was unable to obtain Mariano Turla’s consent.
Still, respondent did not present evidence showing that he
disclosed to Marilu Turla that he previously represented Mariano
Turla and assisted him in executing the Affidavit of Self-
Adjudication. Thus, the allegation of conflict of interest against
respondent was sufficiently proven.

Likewise, we accept and adopt the IBP Board of Governors’ finding


that respondent violated Canon 10, Rule10.01 of the Code of
Professional Responsibility, which states:

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 mislead by any artifice.

In the Report, the Commission on Bar Discipline explained:

Corollary to the foregoing, the Commission by virtue of the


doctrine res ipsa loquitor[sic] finds that the respondent’s act of
failing to thwart his client Mariano Turla from filing the Affidavit of
Adjudication despite . . . his knowledge of the existence of Marilu
Turla as a possible heir to the estate of Rufina Turla, the
respondent failed to uphold his obligation as a member of the bar
to be the stewards of justice and protectors of what is just, legal
and proper. Thus in failing to do his duty and acting dishonestly[,]
not only was he in contravention of the Lawyer’s Oath but was also
in violation of Canon 10, Rule 10.01 of the Code of Professional
Responsibility.66 (Emphasis in the original)

As officers of the court, lawyers have the duty to uphold the rule of
law. In doing so, lawyers are expected to be honest in all their
dealings.67 Unfortunately, respondent was far from being honest.
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Authority to Sanction Members of the Bar

With full knowledge that Rufina Turla had another heir, he


acceded to Mariano Turla’s request to prepare the Affidavit of Self-
Adjudication.68

This court notes that the wording of the IBP Board of Governors’
Resolutions dated May 10, 2013 and March 22, 2014 seems to
imply that it is the Integrated Bar of the Philippines that has the
authority to impose sanctions on lawyers. This is wrong.

The authority to discipline members of the Bar is vested in this


court under the 1987 Constitution: ARTICLE VIII

JUDICIAL DEPARTMENT

....

Section 5. The Supreme Court shall have the following powers:

....

(5) Promulgate rules concerning the protection and enforcement of


constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the integrated bar,
and legal assistance to the underprivileged. . . . (Emphasis
supplied)

Zaldivar v. Sandiganbayan69 elucidated on this court’s "plenary


disciplinary authority over attorneys"70 and discussed:

We begin by referring to the authority of the Supreme Court to


discipline officers of the court and members of the court and
members of the Bar. The Supreme Court, as regular and guardian
of the legal profession, has plenary disciplinary authority over
attorneys. The authority to discipline lawyers stems from the
Court’s constitutional mandate to regulate admission to the
practice of law, which includes as well authority to regulate the
practice itself of law. Quite apart from this constitutional mandate,
the disciplinary authority of the Supreme Court over members of
the Bar is an inherent power incidental to the proper
administration of justice and essential to an orderly discharge of
judicial functions. . . .

. . . The disciplinary authority of the Court over members of the


Bar is but corollary to the Court’s exclusive power of admission to
the Bar. A lawyers [sic] is not merely a professional but also an
officer of the court and as such, he is called upon to share in the
task and responsibility of dispensing justice and resolving disputes
in society.71 (Citations omitted)

This court’s authority is restated under Rule 138 of the Rules of


Court, specifically:
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Authority to Sanction Members of the Bar

RULE 138
ATTORNEYS AND ADMISSION TO BAR

....

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 admission to practice, or for a wilful
disobedience appearing as an attorney for a party to a case
without authority so to do. The practice of soliciting cases at law
for the purpose of gain, either personally or through paid agents or
brokers, constitutes malpractice. (Emphasis supplied)

In Ramirez v. Buhayang-Margallo,72 this court emphasized the


authority of this court to impose disciplinary action on those
admitted to the practice of law.

Parenthetically, it is this court that has the constitutionally


mandated duty to discipline lawyers.73 Under the current rules, the
duty to assist fact finding can be delegated to the Integrated Bar of
the Philippines. The findings of the Integrated Bar, however, can
only be recommendatory, consistent with the constitutional
powers of this court.

Its recommended penalties are also, by its nature,


recommendatory.74

The authority given to the Integrated Bar of the Philippines is


based on Rule 139-B, Section 1 of the Rules of Court, which
provides that "[p]roceedings for the disbarment, suspension or
discipline of attorneys may be taken by the Supreme Court motu
proprio, or by the Integrated Bar of the Philippines . . . upon the
verified complaint of any person." However, this authority is only
to assist this court with the investigation of the case, to determine
factual findings, and to recommend, at best, the penalty that may
be imposed on the erring lawyer.

We reiterate the discussion in Tenoso v. Atty. Echanez:75

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,
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Authority to Sanction Members of the Bar

but also of morality, honesty, integrity and fair


dealing."76 (Citations omitted)

Only this court can impose sanctions on members of the Bar. This 1âwph i1

disciplinary authority is granted by the Constitution and cannot


be relinquished by this court.77 The Resolutions of the Integrated
Bar of the Philippines are, at best, recommendatory, and its
findings and recommendations should not be equated with
Decisions and Resolutions rendered by this court. WHEREFORE,
we find respondent Atty. Victor Rey Santos guilty of violating
Canon 15, Rule 15.03 and Canon 10, Rule 10.01 of the Code of
Professional Responsibility. The findings of fact and
recommendations of the Board of Governors of the Integrated Bar
of the Philippines dated May 10, 2013 and March 22, 2014 are
ACCEPTED and ADOPTED with the MODIFICATION that the
penalty of suspension from the practice of law for one (1) year is
imposed upon Atty. Victor Rey Santos. He is warned that a
repetition of the same or similar act shall be dealt with more
severely.

Let a copy of this Resolution be furnished 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.

SO ORDERED.
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Authority to Sanction Members of the Bar

June 19, 2017

A.C. No. 11600

ROMULO DE MESA FESTIN, Complainant


vs.
ATTY. ROLANDO V. ZUBIRI, Respondent

DECISION

PERLAS-BERNABE, J.:

This administrative case stemmed from an affidavit-complaint1 filed by


complainant Romulo De Mesa Festin (complainant) against respondent
Atty. Rolando V. Zubiri (respondent) before the Integrated Bar of the
Philippines (IBP) for gross violations of the Code of Professional
Responsibility (CPR).

The Facts

Complainant alleged that he was elected as Mayor of the Municipality of


San Jose, Occidental Mindoro in the May 2013 elections. His opponent,
Jose Tapales Villarosa (Villarosa), filed an election protest against him
before the Regional Trial Court of San Jose, Occidental Mindoro, Branch
46 (RTC). 2 After deciding in favor of Villarosa, the RTC issued an
Order3 dated January 15, 2014 (January 15, 2014 Order), granting his
motion for execution pending appeal, viz.:

WHEREFORE, the Motion for Execution Pending Appeal is GRANTED.

The OIC-Branch Clerk of Court [(COC)] is hereby directed to issue a Writ


of Execution Pending Appeal after the lapse of twenty (20) working days
to be counted from the time [complainant's] counsel receives a copy of
this Special Order, if no restraining order or status quo order is issued
pursuant to Section 11 (b),4 Rule 14 of A.M. No. 07- 4-15-SC. 5 (Emphasis
supplied)
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Authority to Sanction Members of the Bar

Distressed, complainant filed a petition for certiorari 6 before the


Commission on Elections (COMELEC), seeking a Temporary Restraining
Order (TRO) against the issuance of the writ of execution pending
appeal.7 In an Order 8dated February 13, 2014, the COMELEC issued a
TRO, directing Hon. Gay Marie F. Lubigan-Rafael (RTC Judge), in her
official capacity as Presiding Judge of the RTC, to cease and desist from
enforcing the January 15, 2014 Order, effective immediately.9 Accordingly,
the RTC issued another Order10 dated February 25, 2014 (February 25,
2014 Order), pertinent portion of which reads:

In view thereof, the OIC-Branch [COC] is directed NOT TO ISSUE a Writ


of Execution in accordance with the [January 15, 2014] Order until further
notice. 11 Despite the TRO and the RTC's February 25, 2014 Order,
respondent, as counsel of Villarosa, filed five (5)
manifestations 12 addressed to the COC insisting on the writ's issuance.
Notably, he did not serve copies of these manifestations to the other
party. 13

In these manifestations, respondent claimed that his client received the


RTC's January 15, 2014 Order on January 18, 2014, and counting from
said date, the twenty-day period ended on February 12, 2014. 14 Since the
COMELEC only issued the TRO on February 13, 2014, the TRO no
longer had any effect. Respondent further asserted that the TRO was
addressed only to the RTC Judge, and not to the COC; therefore, the
COC is not bound by the TRO. For these reasons, respondent insisted
that the COC could legally issue the writ of execution pending appeal. 15

The COC eventually issued a Writ of Execution Pending Appeal


addressed to the sheriff. However, complainant only found out about
respondent's manifestations when the sheriff attempted to serve the writ
on him. 16 Soon thereafter, complainant filed the disbarment complaint.

In his complaint, complainant argued that respondent violated his ethical


duties when he misled and induced the COC to defy lawful orders -
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Authority to Sanction Members of the Bar

particularly, the COMELEC's TRO and the RTC's February 25, 2014
Order. 17 As a result, respondent allegedly violated Canons 1, 10, 15, and
19 of the CPR.18

In his answer, 19 respondent claimed that, first, since the case records had
been transmitted to the COMELEC on January 31, 2014, the RTC was
divested of jurisdiction over the case; therefore, it had no more power to
issue the February 25, 2014 Order. 20 Respondent put forward the same
reason for filing the five manifestations with the COC instead of the RTC
Judge.21 Second, the manifestations contained no misleading statements
or factual deviations. He merely stated in his manifestations his honest
belief that the twenty-day period had already lapsed when the COMELEC
issued its TRO; hence, it no longer had any binding effect. He explained
that the filing of manifestations to highlight his position did not violate any
rule. 22 Third, he allegedly filed those manifestations pursuant to his duty
under Canon 18 of the CPR to represent his client with competence and
diligence. 23

The IBP's Report and Recommendation

In a Report and Recommendation 24 dated September 1, 2014, the


Investigating Commissioner recommended that respondent be suspended
from the practice of law for six (6) months. 25 He observed that by filing
manifestations instead of motions, respondent was able to disregard the
rule that motions shall be served on the other party and shall contain a
notice of hearing. In this regard, the Investigating Commissioner noted
that a manifestation merely informs the court about a certain matter
involving the case, and does not require affirmative action by the court. In
the present case, however, the manifestations filed by respondent were
actually motions as these contained arguments to support his prayer for
the issuance of a writ of execution pending appeal. Moreover, the
Investigating Commissioner also held that respondent acted in bad faith
when he convinced the COC to disregard the COMELEC's TRO. He
pointed out that when the TRO enjoins the court, it includes the judge and
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all officers and employees of the court, including the clerk of court. Hence,
respondent was unfair to the other party and employed deceit when he
filed the manifestations. As a result, the other party was not afforded due
process by being deprived of an opportunity to oppose the
manifestations 26

In a Resolution 27 dated December 14, 2014, the IBP Board of Governors


(IBP Board) adopted and approved the Report and Recommendation of
the Investigation Commissioner.

Respondent moved for reconsideration, 28 which was, however, denied in


a Resolution 29 dated May 28, 2016.

On October 10, 2016, respondent filed a petition for review30 before the
Court purportedly pursuant to the procedure laid out in Ramientas v.
Reyala (Ramientas ). 31

The Issue Before the Court

The core issue in this case is whether or not respondent should be held
administratively liable for the acts complained of.

The Court's Ruling

I.

At the outset, the Court deems it proper to clarify that respondent's filing
of the instant petition for review does not conform with the standing
procedure for the investigation of administrative complaints against
lawyers.

Section 12 (b) and (c) of Rule 139-B of the Rules of Court, as amended
by Bar Matter No. 1645 dated October 13, 2015,32 states:

Section 12. Review and Recommendation by the Board of Governors. -

xxxx
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Authority to Sanction Members of the Bar

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.

x x x x (Emphases supplied)

Under the old rule, the IBP Board had the power to "issue a decision" if
the lawyer complained of was either exonerated or meted a penalty of
"less than suspension of disbarment." In this situation, the case would be
deemed terminated unless an interested party files a petition before the
Court.33 The case of Ramientas,34 which was cited as respondent's basis
for filing the present petition for review, was pronounced based on the old
rule.35

In contrast, under the amended provisions cited above, the IBP Board's
resolution is merely recommendatory regardless of the penalty imposed
on the lawyer. The amendment stresses the Court's authority to discipline
a lawyer who transgresses his ethical duties under the CPR.

Hence, any final action on a lawyer's administrative liability shall be done


by the Court based on the entire records of the case, including the IBP
Board's recommendation, without need for the lawyer-respondent to file
any additional pleading.

On this score, respondent's filing of the present petition for review is


unnecessary. Pursuant to the current rule, the IBP Board's resolution and
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Authority to Sanction Members of the Bar

the case records were forwarded to the Court. The latter is then bound to
fully consider all documents contained therein, regardless of any further
pleading filed by any party - including respondent's petition for review,
which the Court shall nonetheless consider if only to completely resolve
the merits of this case and determine respondent's actual administrative
liability.

II.

After a judicious review of the case records, the Court agrees with the IBP
that respondent should be held administratively liable for his violations of
the CPR. However, the Court finds it proper to impose a lower penalty.

Canon 1 of the CPR mandates lawyers to uphold the Constitution and


promote respect for the legal processes.36Additionally, Canon 8 and Rule
10.03, Canon 10 of the CPR require lawyers to conduct themselves with
fairness towards their professional colleagues, to observe procedural
rules, and not to misuse them to defeat the ends of justice. These
provisions read thus:

CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY


THE LAW OF THE LAND AND PROMOTE RESPECT FOR LAW AND
LEGAL PROCESSES.

xxxx

CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY,


FAIRNESS AND CANDOR TOWARDS HIS PROFESSIONAL
COLLEAGUES, AND SHALL A VOID HARASSING TACTICS AGAINST
OPPOSING COUNSEL.

xxxx

CANON 10 -A LAWYER OWES CANDOR, FAIRNESS AND GOOD


FAITH TO THE COURT.

xxxx
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Rule 10.03 - A lawyer shall observe the rules of procedure and shall not
misuse them to defeat the ends of justice.

Contrary to these edicts, respondent improperly filed the five (5) motions
as "manifestations" to sidestep the requirement of notice of hearing for
motions. In effect, he violated his professional obligations to respect and
observe procedural rules, not to misuse the rules to cause injustice, and
to exhibit fairness towards his professional colleagues.

The difference between a manifestation and a motion is essential in


determining respondent's administrative liability. 1âwphi1

A manifestation is usually made merely for the information of the court,


unless otherwise indicated. In a manifestation, the manifesting party
makes a statement to inform the court, rather than to contest or argue. 37 In
contrast, a motion is an application for relief from the court other than by a
pleading38 and must be accompanied by a notice of hearing and proof of
service to the other party, unless the motion is not prejudicial to the rights
of the adverse party. 39 Settled is the rule that a motion without notice of
hearing is proforma or a mere scrap of paper; thus, the court has no
reason to consider it and the clerk has no right to receive it. The reason
for the rule is simple: to afford an opportunity for the other party to agree
or object to the motion before the court resolves it. This is in keeping with
the principle of due process. 40

In the present case, respondent filed five (5) manifestations before the
COC praying for affirmative reliefs. The Court agrees with the IBP that
these "manifestations" were in fact motions, since reliefs were prayed for
from the court - particularly, the issuance of the writ of execution pending
appeal. By labelling them as manifestations, respondent craftily
sidestepped the requirement of a notice of hearing and deprived the other
party of an opportunity to oppose his arguments. Moreover, the fact that
he submitted these manifestations directly to COC, instead of properly
filing them before the RTC, highlights his failure to exhibit fairness towards
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Authority to Sanction Members of the Bar

the other party by keeping the latter completely unaware of his


manifestations. Undoubtedly, respondent violated his professional
obligations under the CPR.

In the present case, respondent filed five (5) manifestations before the
COC praying for affirmative reliefs. The Court agrees with the IBP that
these "manifestations" were in fact motions, since reliefs were prayed for
from the court - particularly, the issuance of the writ of execution pending
appeal. By labelling them as manifestations, respondent craftily
sidestepped the requirement of a notice of hearing and deprived the other
party of an opportunity to oppose his arguments. Moreover, the fact that
he submitted these manifestations directly to COC, instead of properly
filing them before the RTC, highlights his failure to exhibit fairness towards
the other party by keeping the latter completely unaware of his
manifestations. Undoubtedly, respondent violated his professional
obligations under the CPR.

He attempts to justify his acts by arguing that he merely represented his


client with competence and diligence. However, respondent should be
reminded that a lawyer is ethically bound not only to serve his client but
also the court, his colleagues, and society. His obligation to represent his
client is not without limits, but must be "within the bounds of the law"
pursuant to Canon 19 of the CPR. Accordingly, he is ethically bound to
employ only fair and honest means to attain their clients' objectives.

Respondent further argues that his filing of the manifestations with the
COC is justified considering that the RTC had already lost jurisdiction over
the case and the COC had the ministerial duty to issue the writ of
execution. His argument fails to persuade. The Court has ruled that a
COC has a ministerial duty to issue a writ of execution when the judge
directs its issuance.41 In this case, however, the RTC Judge had issued
the second Order (dated February 25, 2014) explicitly directing the COC
"NOT TO ISSUE a Writ of Execution." Therefore, the COC in this case did
not have a ministerial duty to issue the writ of execution. If respondent
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Authority to Sanction Members of the Bar

honestly believed that his client was entitled to the writ, then he should not
have clandestinely submitted ex parte manifestations directly to the COC
to coerce the latter to grant his intended relief. Instead, respondent should
have filed the proper motions before the court, which alone has the
inherent power to grant his prayer pursuant to Section 5 (c), (d), and (g),
Rule 135 of the Rules of Court.42

The Court has the plenary power to discipline erring lawyers. In the
exercise of its sound judicial discretion, it may to impose a less severe
punishment if such penalty would achieve the desired end of reforming
the errant lawyer. 43 In light of the foregoing discussion, the Court deems
that a penalty of suspension from the practice of law for three (3) months
is sufficient and commensurate with respondent's infractions.44

As a final note, the Court stresses that a lawyer's primary duty is to assist
the courts in the administration of justice. Any conduct that tends to delay,
impede, or obstruct the administration of justice contravenes this
obligation. 45Indeed, a lawyer must champion his client's cause with
competence and diligence, but he cannot invoke this as an excuse for his
failure to exhibit courtesy and fairness to his fellow lawyers and to respect
legal processes designed to afford due process to all stakeholders.

WHEREFORE, respondent Atty. Rolando V. Zubiri (respondent) is


found GUILTY of violating Canon 1, Canon 8, and Rule 10.03, Canon 10
of the Code of Professional Responsibility. Accordingly, he
is SUSPENDED from the practice of law for three (3) months effective
from the finality of this Decision, and is STERNLY WARNED that a
repetition of the same or similar act shall be dealt with more severely.

Let a copy of this Decision be furnished to the Office of the Bar Confidant,
to be attached to respondent's personal record as a member of the Bar.
Furthermore, let copies of the same be served on the Integrated Bar of
the Philippines and the Office of the Court Administrator, which is directed
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Authority to Sanction Members of the Bar

to circulate them to all courts in the country for their information and
guidance.

SO ORDERED.
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Authority to Sanction Members of the Bar

January 31, 2017

A.C. No. 11095

EUFEMIA A. CAMINO, Complainant,


vs.
ATTY. RYAN REY L. PASAGUI, Respondent.

RESOLUTION

PER CURIAM:

Before the Court is a Motion for Issuance of Writ of Execution1 filed by


Complainant Eufemia A. Camino, relative to the Court's Per
Curiam Decision dated September 20, 2016 in A.C. No. 11095.

In a Disbarment Complaint dated July 13, 2011 filed by complainant


against respondent Atty. Ryan Rey L. Pasagui (Atty. Pasagui) before the
Integrated Bar of the Philippines-Commission on Bar Discipline (IBP-
CED), docketed as CBD Case No. 11-3140, now A.C. No. 11095,
complainant alleged, among other things, that respondent violated their
agreement for the latter to facilitate and secure a loan in order to finance
the payment of necessary expenses to transfer the title of a certain
property under her name. She claimed that respondent obtained a loan in
her name and that of her husband, using their property as collateral, but
Atty. Pasagui arrogated the proceeds thereof to himself.

In a Per Curiam Decision2 dated September 20, 2016, the Court, ruling in
favor of the complainant, found that respondent was guilty of deceit,
malpractice and gross misconduct for converting the money of his client to
his own personal use without her consent. By his failure to make good of
their agreement to use the proceeds of the loan for the transfer of the title
in complainant's name, Atty. Pasagui not only betrayed the trust and
confidence reposed upon him by his client, but he is likewise guilty of
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Authority to Sanction Members of the Bar

engaging in dishonest and deceitful conduct. For his acts, Atty. Pasagui
degraded himself and besmirched the fair name of an honorable
profession. Thus, the Court affirmed the findings and conclusions of the
IBP Board of Governors, but modified the recommended penalty and
instead imposed the penalty to Disbarment. The Court also ordered Atty.
Pasagui to return the loan proceeds he received from Perpetual Help
Credit Cooperative, Inc. (PHCCI) on behalf of the complainant, with
interest, together with all the documents pertinent to the loan application
and those he received from the complainant, to wit:

WHEREFORE, Resolution No. XXI-2014-938 dated December 14, 2014


of the IBP-Board of Governors which found respondent Atty. Ryan Rey L.
Pasagui GUILTY of violation of Rule 1.01 of the Code of Professional
Responsibility is AFFIRMED with MODIFICATION as to the
penalty. Respondent Atty. Ryan Rey L. Pasagui is instead meted the
penalty of DISBARMENT. Respondent is further ORDERED to
immediately RETURN the loan proceeds amounting to ₱1,000,000.00 and
to pay legal interest at the rate of twelve percent (12%) per
annum computed from the release of the loan on February 15, 2011 up to
June 30, 2013, and six percent (6%) per annum from July 1, 2013 until
fully paid, as well as, the ₱l20,000.00 received for the purpose of
transferring the title in the name of the complainant and to pay legal
interest at the rate of twelve percent (12%) per annum computed from
receipt of the amount on February 3, 2011 up to June 30, 2013, and six
percent (6%) per annum from July 1, 2013 until fully paid. He is
likewise ORDERED to RETURN all other documents pertinent to the loan
obtained from PHCCI and those received from complainant.

Let a copy of this Decision be furnished to the Office of the Bar Confidant,
to be appended to the personal record of respondent; the Integrated Bar
of the Philippines; and the Office of the Court Administrator for circulation
to all courts in the country for their information and guidance.

This Decision shall be immediately executory.


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Authority to Sanction Members of the Bar

SO ORDERED.3

In the present Motion for Issuance of Writ of Execution, complainant now


prays for the issuance of a Writ of Execution for the enforcement of the
said judgment.

Generally, once a judgment or order becomes final and executory, the


judgment obligee may file a motion for the issuance of a writ of execution
in the court of origin as provided for under Rule 39, Sec. 1, of the 1997
Rules of Civil Procedure, viz.:

SEC. 1. Execution upon judgments or final orders. - Execution shall issue


as a matter of right, on motion, upon a judgment or order that disposes of
the action or proceeding upon the expiration of the period to appeal
therefrom if no appeal has been duly perfected.

If the appeal has been duly perfected and finally resolved, the execution
may forthwith be applied for in the court of origin, on motion of the
judgment obligee, submitting therewith certified true copies of the
judgment or judgments or final order or orders sought to be enforced and
of the entry thereof, with notice to the adverse party.

The appellate court may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution.

Likewise, a judgment or final order may also be executed pending appeal


as provided for in Rule 39, Sec. 2, as follows:

SEC. 2. Discretionary execution. -

(a) Execution of a judgment or final order pending appeal. - On motion of


the prevailing party with notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in possession of either the
original record or the record on appeal, as the case may be, at the time of
the filing of such motion, said court may, in its discretion, order execution
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Authority to Sanction Members of the Bar

of a judgment or final order even before the expiration of the period to


appeal.

After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in


a special order after due hearing.

(b) Execution of several, separate or partial judgments. - A several,


separate or partial judgment may be executed under the same terms and
conditions as execution of a judgment or final order pending appeal.

Corollarily, judgments declared to be immediately executory, as in the


present case, are enforceable after their rendition. Similar to judgments or
orders that become final and executory, the execution of the decision in
the case at bar is already a matter of right. 4 The judgment obligee may,
therefore, file a motion for the issuance of a writ of execution in the court
of origin as provided for under Rule 39, Sec. 1, of the 1997 Rules of Civil
Procedure.

In this particular case, however, the case did not originate from the lower
courts, but instead is an original action for disbarment filed by the
complainant against Atty. Pasagui, accusing the latter of Estafa through
Abuse of Confidence. 5

Consequently, pursuant to Section 6,6 Rule 135 of the Rules of Court, the
Clerk of Court of the Supreme Court should issue the Writ of Execution
prayed for. But, in as much as this Court does not have a sheriff of its own
to execute its own decision and considering that the complainant resides
in Tacloban City, the Ex-Officio Sheriff of Tacloban City is directed to
execute the money judgment against the respondent in accordance with
Rule 39, Section 97 of the Rules of Court. Likewise, the Ex-Officio Sheriff
of Tacloban City is ordered to enforce the Court's directive for respondent
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Authority to Sanction Members of the Bar

to return all the pertinent documents in his possession to the complainant


pursuant to Section 118 of the Rules of Court.

WHEREFORE, premises considered, the Court resolves


to GRANT complainant's Motion for Issuance of Writ of Execution
by DIRECTING the Clerk of Court of the Supreme Court to issue the Writ
of Execution prayed for ORDERING respondent ATTY. RYAN REY L.
PASAGUI:

1. To IMMEDIATELY RETURN to complainant EUFEMIA A. CAMINO the


amount of ₱l,000,000.00, plus interest of 12% per annum from February
15, 2011 up to June 30, 2013; and interest of 6% per annum from July 1,
2013 until fully paid;

2. To pay to complainant EUFEMIA A. CAMINO the further amount of


₱120,000.00, plus interest of 12% per annum from February 3, 2011 up to
June 30, 2013; and interest of 6% per annum from July 1, 2013 until fully
paid; and

3. To forthwith return to complainant EUFEMIA A. CAMINO all other


documents pertinent to the loan obtained from PHCCI and those received
from complainant.

The Clerk of Court of the Supreme Court shall transmit the Writ of
Execution to the Clerk of Court and Ex Officio Sheriff of the Regional Trial
Court in Tacloban City (with the certified copies of this Resolution and the
decision promulgated on September 20, 2016) for prompt service and
implementation either directly or by a duly authorized deputy sheriff.

The legal fees for the service and implementation of the Writ of Execution
as provided in Rule 141 of the Rules of Court shall be paid by respondent
ATTY. PASAGUI.

The Executive Judge of the Regional Trial Court in Tacloban City is


hereby expressly authorized to oversee the proceedings of execution; act
on and resolve any incident arising therefrom; issue alias writ of
PALE 70
Authority to Sanction Members of the Bar

execution, if necessary, as if the judgment under execution was rendered


by the Regional Trial Court; receive and approve the Sheriff’s Return on
satisfaction (full or partial) or failure of satisfaction; and to submit a final
Report on the execution to the Clerk of Court of the Supreme Court.

Complainant "EUFEMIA A. CAMINO is directed to hereafter deal with the


Clerk of Court and Ex Officio Sheriff of Tacloban City in relation to the
enforcement of the decision promulgated in this adminisrative matter.

SO ORDERED.

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