A.M. No.
SDC-97-2-P February 24, 1997
SOPHIA ALAWI, complainant,
vs.
ASHARY M. ALAUYA, Clerk of Court VI, Shari'a District Court, Marawi City,
respondent.
NARVASA, C.J.:
Sophia Alawi was (and presumably still is) a sales representative (or coordinator) of
E.B. Villarosa & Partners Co., Ltd. of Davao City, a real estate and housing company.
Ashari M. Alauya is the incumbent executive clerk of court of the 4th Judicial Shari'a
District in Marawi City, They were classmates, and used to be friends.
It appears that through Alawi's agency, a contract was executed for the purchase on
installments by Alauya of one of the housing units belonging to the above mentioned
firm (hereafter, simply Villarosa & Co.); and in connection therewith, a housing loan was
also granted to Alauya by the National Home Mortgage Finance Corporation (NHMFC).
Not long afterwards, or more precisely on December 15, 1995, Alauya addressed a
letter to the President of Villarosa & Co. advising of the termination of his contract with
the company. He wrote:
. . I am formally and officially withdrawing from and notifying you of
my intent to terminate the Contract/Agreement entered into between
me and your company, as represented by your Sales
Agent/Coordinator, SOPHIA ALAWI, of your company's branch office
here in Cagayan de Oro City, on the grounds that my consent was
vitiated by gross misrepresentation, deceit, fraud, dishonesty and
abuse of confidence by the aforesaid sales agent which made said
contract void ab initio. Said sales agent acting in bad faith
perpetrated such illegal and unauthorized acts which made said
contract an Onerous Contract prejudicial to my rights and interests.
He then proceeded to expound in considerable detail and quite
acerbic language on the "grounds which could evidence the bad
faith. deceit, fraud, misrepresentation, dishonesty and abuse of
confidence by the unscrupulous sales agent . . .;" and closed with the
plea that Villarosa & Co. "agree for the mutual rescission of our
contract, even as I inform you that I categorically state on record that
I am terminating the contract . . . I hope I do not have to resort to any
legal action before said onerous and manipulated contract against
my interest be annulled. I was actually fooled by your sales agent,
hence the need to annul the controversial contract."
Alauya sent a copy of the letter to the Vice-President of Villarosa &
Co. at San Pedro, Gusa, Cagayan de Oro City. The envelope
containing it, and which actually went through the post, bore no
stamps. Instead at the right hand corner above the description of the
addressee, the words, "Free Postage - PD 26," had been typed.
On the same date, December 15, 1995, Alauya also wrote to Mr.
Fermin T. Arzaga, Vice-President, Credit & Collection Group of the
National Home Mortgage Finance Corporation (NHMFC) at Salcedo
Village, Makati City, repudiating as fraudulent and void his contract
with Villarosa & Co.; and asking for cancellation of his housing loan
in connection therewith, which was payable from salary deductions
at the rate of P4,338.00 a month. Among other things, he said:
. . . (T)hrough this written notice, I am terminating,
as I hereby annul, cancel, rescind and voided, the
"manipulated contract" entered into between me
and the E.B. Villarosa & Partner Co., Ltd., as
represented by its sales agent/coordinator,
SOPHIA ALAWI, who maliciously and fraudulently
manipulated said contract and unlawfully secured
and pursued the housing loan without my authority
and against my will. Thus, the contract itself is
deemed to be void ab initio in view of the attending
circumstances, that my consent was vitiated by
misrepresentation, fraud, deceit, dishonesty, and
abuse of confidence; and that there was no
meeting of the minds between me and the
swindling sales agent who concealed the real facts
from me.
And, as in his letter to Villarosa & Co., he narrated in some detail what he took
to be the anomalous actuations of Sophia Alawi.
Alauya wrote three other letters to Mr. Arzaga of the NHMFC, dated February 21, 1996,
April 15, 1996, and May 3, 1996, in all of which, for the same reasons already cited, he
insisted on the cancellation of his housing loan and discontinuance of deductions from
his salary on account thereof. a He also wrote on January 18, 1996 to Ms. Corazon M.
Ordoñez, Head of the Fiscal Management & Budget Office, and to the Chief, Finance
Division, both of this Court, to stop deductions from his salary in relation to the loan in
question, again asserting the anomalous manner by which he was allegedly duped into
entering into the contracts by "the scheming sales agent." b
The upshot was that in May, 1996, the NHMFC wrote to the Supreme Court requesting
it to stop deductions on Alauya's UHLP loan "effective May 1996." and began
negotiating with Villarosa & Co. " for the buy-back of . . . (Alauya's) mortgage. and . .
the refund of . . (his) payments." c
On learning of Alauya's letter to Villarosa & Co. of December 15, 1995, Sophia Alawi
filed with this Court a verified complaint dated January 25, 1996 — to which she
appended a copy of the letter, and of the above mentioned envelope bearing the
typewritten words, "Free Postage - PD 26."1 In that complaint, she accused Alauya of:
1. "Imputation of malicious and libelous charges with no solid
grounds through manifest ignorance and evident bad faith;"
 2. "Causing undue injury to, and blemishing her honor and
established reputation;"
3. "Unauthorized enjoyment of the privilege of free postage . . .;" and
4. Usurpation of the title of "attorney," which only regular members
of the Philippine Bar may properly use.
She deplored Alauya's references to her as "unscrupulous swindler, forger,
manipulator, etc." without "even a bit of evidence to cloth (sic) his allegations with the
essence of truth," denouncing his imputations as irresponsible, "all concoctions, lies,
baseless and coupled with manifest ignorance and evident bad faith," and asserting
that all her dealings with Alauya had been regular and completely transparent. She
closed with the plea that Alauya "be dismissed from the senice, or be appropriately
desciplined (sic) . . ."
The Court resolved to order Alauya to comment on the complaint, Conformably with
established usage that notices of resolutions emanate from the corresponding Office of
the Clerk of Court, the notice of resolution in this case was signed by Atty. Alfredo P.
Marasigan, Assistant Division Clerk of Court.2
Alauya first submitted a "Preliminary Comment"3 in which he questioned the authority
of Atty. Marasigan to require an explanation of him, this power pertaining, according to
him, not to "a mere Asst. Div. Clerk of Court investigating an Executive Clerk of Court."
but only to the District Judge, the Court Administrator or the Chief Justice, and voiced
the suspicion that the Resolution was the result of a "strong link" between Ms. Alawi
and Atty. Marasigan's office. He also averred that the complaint had no factual basis;
Alawi was envious of him for being not only "the Executive Clerk of Court and ex-officio
Provincial Sheriff and District Registrar." but also "a scion of a Royal Family . . ."4
In a subsequent letter to Atty. Marasigan, but this time in much less aggressive, even
obsequious tones,5 Alauya requested the former to give him a copy of the complaint in
order that he might comment thereon.6 He stated that his acts as clerk of court were
done in good faith and within the confines of the law; and that Sophia Alawi, as sales
agent of Villarosa & Co. had, by falsifying his signature, fraudulently bound him to a
housing loan contract entailing monthly deductions of P4,333.10 from his salary.
And in his comment thereafter submitted under date of June 5, 1996, Alauya contended
that it was he who had suffered "undue injury, mental anguish, sleepless nights,
wounded feelings and untold financial suffering," considering that in six months, a total
of P26,028.60 had been deducted from his salary.7 He declared that there was no basis
for the complaint; in communicating with Villarosa & Co. he had merely acted in defense
of his rights. He denied any abuse of the franking privilege, saying that he gave P20.00
plus transportation fare to a subordinate whom he entrusted with the mailing of certain
letters; that the words: "Free Postage - PD 26," were typewritten on the envelope by
some other person, an averment corroborated by the affidavit of Absamen C. Domocao,
Clerk IV (subscribed and sworn to before respondent himself, and attached to the
comment as Annex J);8 and as far as he knew, his subordinate mailed the letters with
the use of the money he had given for postage, and if those letters were indeed mixed
with the official mail of the court, this had occurred inadvertently and because of an
honest mistake.9
Alauya justified his use of the title, "attorney," by the assertion that it is "lexically
synonymous" with "Counsellors-at-law." a title to which Shari'a lawyers have a rightful
claim, adding that he prefers the title of "attorney" because "counsellor" is often
mistaken for "councilor," "konsehal" or the Maranao term "consial," connoting a local
legislator beholden to the mayor. Withal, he does not consider himself a lawyer.
He pleads for the Court's compassion, alleging that what he did "is expected of any
man unduly prejudiced and injured." 10 He claims he was manipulated into reposing his
trust in Alawi, a classmate and friend. 11 He was induced to sign a blank contract on
Alawi's assurance that she would show the completed document to him later for
correction, but she had since avoided him; despite "numerous letters and follow-ups"
he still does not know where the property — subject of his supposed agreement with
Alawi's principal, Villarosa & Co. — is situated; 12 He says Alawi somehow got his GSIS
policy from his wife, and although she promised to return it the next day, she did not do
so until after several months. He also claims that in connection with his contract with
Villarosa & Co., Alawi forged his signature on such pertinent documents as those
regarding the down payment, clearance, lay-out, receipt of the key of the house, salary
deduction, none of which he ever saw. 13
Averring in fine that his acts in question were done without malice, Alauya prays for the
dismissal of the complaint for lack of merit, it consisting of "fallacious, malicious and
baseless allegations." and complainant Alawi having come to the Court with unclean
hands, her complicity in the fraudulent housing loan being apparent and demonstrable.
It may be mentioned that in contrast to his two (2) letters to Assistant Clerk of Court
Marasigan (dated April 19, 1996 and April 22, 1996), and his two (2) earlier letters both
dated December 15, 1996 — all of which he signed as "Atty. Ashary M. Alauya" — in
his Comment of June 5, 1996, he does not use the title but refers to himself as
"DATU ASHARY M. ALAUYA."
The Court referred the case to the Office of the Court Administrator for evaluation,
report and recommendation. 14
The first accusation against Alauya is that in his aforesaid letters, he made "malicious
and libelous charges (against Alawi) with no solid grounds through manifest ignorance
and evident bad faith, resulting in "undue injury to (her) and blemishing her honor and
established reputation." In those letters, Alauya had written inter alia that:
1) Alawi obtained his consent to the contracts in question "by gross misrepresentation,
deceit, fraud, dishonesty and abuse of confidence;"
2) Alawi acted in bad faith and perpetrated . . . illegal and unauthorized acts . . .
prejudicial to . . (his) rights and interests;"
3) Alawi was an "unscrupulous (and "swindling") sales agent" who had fooled him by
"deceit, fraud, misrepresentation, dishonesty and abuse of confidence;" and
4) Alawi had maliciously and fraudulently manipulated the contract with Villarosa & Co.,
and unlawfully secured and pursued the housing loan without . . (his) authority and
against . . (his) will," and "concealed the real facts . . ."
Alauya's defense essentially is that in making these statements, he was merely acting
in defense of his rights, and doing only what "is expected of any man unduly prejudiced
and injured," who had suffered "mental anguish, sleepless nights, wounded feelings
and untold financial suffering, considering that in six months, a total of P26,028.60 had
been deducted from his salary. 15
The Code of Conduct and Ethical Standards for Public Officials and Employees (RA
6713) inter alia enunciates the State policy of promoting a high standard of ethics and
utmost responsibility in the public service. 16 Section 4 of the Code commands that
"(p)ublic officials and employees . . at all times respect the rights of others, and . . refrain
from doing acts contrary to law, good morals, good customs, public policy, public order,
public safety and public interest." 17 More than once has this Court emphasized that
"the conduct and behavior of every official and employee of an agency involved in the
administration of justice, from the presiding judge to the most junior clerk, should be
circumscribed with the heavy burden of responsibility. Their conduct must at all times
be characterized by, among others, strict propriety and decorum so as to earn and keep
the respect of the public for the judiciary." 18
Now, it does not appear to the Court consistent with good morals, good customs or
public policy, or respect for the rights of others, to couch denunciations of acts believed
— however sincerely — to be deceitful, fraudulent or malicious, in excessively
intemperate, insulting or virulent language. Alauya is evidently convinced that he has a
right of action against Sophia Alawi. The law requires that he exercise that right with
propriety, without malice or vindictiveness, or undue harm to anyone; in a manner
consistent with good morals, good customs, public policy, public order, supra; or
otherwise stated, that he "act with justice, give everyone his due, and observe honesty
and good faith." 19 Righteous indignation, or vindication of right cannot justify resort to
vituperative language, or downright name-calling. As a member of the Shari'a Bar and
an officer of a Court, Alawi is subject to a standard of conduct more stringent than for
most other government workers. As a man of the law, he may not use language which
is abusive, offensive, scandalous, menacing, or otherwise improper. 20 As a judicial
employee, it is expected that he accord respect for the person and the rights of others
at all times, and that his every act and word should be characterized by prudence,
restraint, courtesy, dignity. His radical deviation from these salutary norms might
perhaps be mitigated, but cannot be excused, by his strongly held conviction that he
had been grievously wronged.
As regards Alauya's use of the title of "Attorney," this Court has already had occasion
to declare that persons who pass the Shari'a Bar are not full-fledged members of the
Philippine Bar, hence may only practice law before Shari'a courts. 21 While one who
has been admitted to the Shari'a Bar, and one who has been admitted to the Philippine
Bar, may both be considered "counsellors," in the sense that they give counsel or
advice in a professional capacity, only the latter is an "attorney." The title of "attorney"
is reserved to those who, having obtained the necessary degree in the study of law and
successfully taken the Bar Examinations, have been admitted to the Integrated Bar of
the Philippines and remain members thereof in good standing; and it is they only who
are authorized to practice law in this jurisdiction.
Alauya says he does not wish to use the title, "counsellor" or "counsellor-at-law, "
because in his region, there are pejorative connotations to the term, or it is confusingly
similar to that given to local legislators. The ratiocination, valid or not, is of no moment.
His disinclination to use the title of "counsellor" does not warrant his use of the title of
attorney.
Finally, respecting Alauya's alleged unauthorized use of the franking privilege, 22 the
record contains no evidence adequately establishing the accusation.
WHEREFORE, respondent Ashari M. Alauya is hereby REPRIMANDED for the use of
excessively intemperate, insulting or virulent language, i.e., language unbecoming a
judicial officer, and for usurping the title of attorney; and he is warned that any similar
or other impropriety or misconduct in the future will be dealt with more severely.
SO ORDERED.
Davide, Jr., Melo, Francisco and Panganiban, Jr., JJ., concur.
G.R. No. 585 December 14, 1979
EMILIA E. ANDRES, petitioner,
vs.
STANLEY R. CABRERA, respondent.
GUERRERO, J.:
In a resolution of this Court dated October 11, 1979, respondent Stanley R. Cabrera. a
successful bar examine in 1977 and against whom a petition to disqualify him from
membership in the Bar is pending in this Court in the above-entitled case, was required
to show cause why he should not be cited and punished for contempt of court.
The above citation for contempt against the respondent was issued by the Court
following the persistence of the respondent in the use of, abusive and vituperative
language despite the Court's admonition implicit in Our previous resolution of June 5,
1979 deferring the oath-taking of respondent pending showing that he has amended
his ways and conformed to the use of polite, courteous and civil language.
The petition to disqualify respondent from admission to the Bar was filed by Atty. Emilia
F. Andres, Legal Officer II in the Office of the Minister, Ministry of Labor on the ground
of lack of good moral character as shown by his propensity in using vile, uncouth, and
in civil language to the extent of being reprehensively malicious and criminally libelous
and likewise, for his proclivity in filing baseless, malicious and unfounded criminal
cases.
It appears that Atty. Emilia E. Andres, designated as Special Investigator to investigate
the administrative charge filed by Mrs. Presentacion R. Cabrera, mother of the
respondent, against one, Atty. Benjamin Perez, former Hearing Officer of the defunct
Workmen's Compensation Unit, Region IV, Manila, for alleged dishonesty, oppression
and discourtesy, recommended the dismissal of the charge even as the records of two
relevant Workmen's Compensation cases were not produced at the hearing,
notwithstanding the request of the respondent. When the Minister of Labor dismissed
the charges upon Atty. Andres' recommendation, respondent filed with the City Fiscal
of Manila criminal charges of infidelity in the custody of documents. falsification of public
documents, and violation of the Anti-Graft and Corrupt Practices Act against the
investigator.
Supporting these criminal charges are affidavits of respondent Stanley R. Cabrera
wherein Atty. Andres. now the petitioner, points to the vile, in civil and uncouth language
used by respondent, as shown in the following excerpts:
9. That the moronic statements of Atty. Ernesto Cruz and Atty. Emilia
Andres are the product of moronic conspiracy to conceal the said
falsified, fraudulent and unauthorized document in the sense that
how can the CARS conduct a diligent search tor the aforesaid
document when according to the moronic excuse of the Chief of the
said office which took over the functions of the defunct WCC
considering that it is easier to resort to the list of the inventory of
cases before conducting a diligent search unless both are morons
with regards to their public office ... (emphasis supplied).
10. That due to the fact that Acting Referee Benjamin R. Perez,
Alfredo Antonio, Jr., Atty. Ernesto Cruz and Atty. Emilia Andres has
perpetrated a moronic but criminal conspiracy to conceal the falsified
fraudulent and unauthorized petition ... (emphasis supplied).
... And to show beyond reasonable doubt that that the letter is a
manufactured evidence respondent Atty. Andres in another
demonstration of her unparalleled stupidity in the discharge of her
public functions moronically failed to affix her signature to further
aggravate matters said manufactured evidence
was moronically received upon unlawful inducement by respondents
Atty. Cruz and Atty. Andres in furtherance of the criminal conspiracy
by the Idiotic with regards to the discharge of public functions ...
(emphasis supplied)
The same words and phrases are used in respondent's other affidavits supporting the
criminal cases against the petitioner such as the following:
Her moronic but criminal participation as a conspirator
another demonstration of her unparalleled stupidity in the discharge
of her public functions moronically failed to affix her signature
said manufactured evidence was moronically received by unlawful
inducement by respondents
idiotic receiving clerk of CAR
unparalleled stupidity of chief respondent
On April 28, 1977, this Court required respondent to file an answer to the petition to
disqualify him from admission to the Bar and ordered at the same time that his oath-
taking be held in abeyance until further orders. In his answer, respondent admits the
filing of criminal cases in the City Fiscal's Office against the petitioner but he claims that
his language was not vile uncouth and un civil due to the simple reason that the same
is the truth and was made with good intentions and justifiable motives pursuant to
respondent's sense of justice as cherished under the New Society, aside from being
absolutely privileged. Respondent's answer, however, repeats his former allegations
that "Atty. Emilia Andres is not only a moron" and reiterates "the moronic discharge of
public functions by complainant Atty. Emilia Andres."
The records show repeated motions of respondent dated October 21, 1977 and
February 22, 1978 for the early resolution of his case and in his letter dated April 11,
1978 addressed to then Chief Justice Fred Ruiz Castro, respondent sought, in his very
words "some semblance of justice from the Honorable Supreme Court of the
Philippines" and another letter to the Chief Justice dated August 17, 1978 making
reference to the "avalance of the sadistic resolution en banc," "the cruel and inhuman
punishment the Court has speedily bestowed upon undersigned respondent," "the
Court does not honor its own resolution," and closing his letter thus — "A victim of the
Court's inhuman and cruel punishment through its supreme inaction."
We referred the petition of Atty. Emilia Andres to the Legal Investigator of the Court for
investigation, report and recommendation which was submitted on May 24, 1979.
Acting on said report, the Court resolved to defer the oath-taking of respondent pending
showing that he has amended his ways and has conformed to the use of polite,
courteous and civil language. Thereafter, respondent filed on September 3, 1979 an
Urgent Ex-Parte Motion to annul Our resolution of June 5, 1979 and to reinvestigate
the case, preferably giving opportunity to respondent to argue his case orally before
the Court or to allow him to take his oath of office as an attorney. We denied the motion.
On September 11, 1979, respondent filed an Urgent Motion for Contempt of Court,
praying the Supreme Court to cite complainant Atty. Emilia Andres for contempt of
court, alleging that her false and malicious accusations coupled with her improper and
obnoxious acts during the investigation impeded, obstructed and degraded the
administration of justice. Under paragraph 2 of said motion, he states:
2. That with all due respect to this Court, the aforestated resolution
en banc to DEFER my oath-taking as an attorney pending showing
that "he has amended his ways and has conformed to the use of
polite, courteous, and civil language" is a degradation of the
administration of justice due to the fact that the same is bereft of legal
foundation due to the fact that the investigation conducted by Atty.
 Victor J. Sevilla, whose supreme stupidity in the discharge of his
official functions is authenticated by his overt partiality to the
complainant as authenticated by the transcript of records of this case
thus depriving undersigned respondent-movant of the "Cold and
neutral impartiality of a judge" tantamount to lack of due process of
law; (emphasis supplied).
We noted that the above paragraph is a repetition of paragraph 4 in respondent's
previous Urgent Ex-Parte Motion dated September 3, 1979 which also states:
4. That with all due respect to this Court, the aforestated resolution
en banc to DEFER my oath-taking as an attorney pending showing
that "he has amended his ways and has conformed to the use of
polite, courteous and civil language" is a degradation of the
administration of justice due to the fact that same is bereft of legal
foundation due to the fact that the investigation conducted by Atty.
Victor J. Sevilla, whose supreme stupidity in the discharge of his
official functions is authenticated by his overt partiality to the
complainant as authenticated by the transcript of records of this case
thus depriving undersigned respondent-movant of the "cold and
neutral impartiality of a judge, " tantamount to lack of due process of
law: (emphasis supplied).
We also took note in respondent's Urgent Motion for Contempt of Court the language
used by him in praying this Court "to impose upon said Emilia E. Andres imprisonment
commensurate to the humiliation and vomitting injustice undersigned respondent-
movant suffered and still suffering from this Court due to complainant Atty. Emilia E.
Andres' wanton dishonesty."
It is obvious and self-evident that respondent has not amended his conduct despite the
Court's admonition. Respondent persists and keeps on using abusive and vituperative
language before the Court. Accordingly, We resolved in Our resolution of October 11,
1979 to require respondent to show cause why he should not be cited and punished for
contempt of court.
Respondent filed an Urgent Motion for Reconsideration dated September 27, 1979
wherein he tried to assure the Court that he has amended his ways and has conformed
to the use of polite, courteous and civil language and prayed that he be allowed to take
the lawyer's oath. We denied it on October 16, 1979.
Thereafter, respondent submitted a pleading entitled "Subrosa" dated October 22, 1979
and answered the citation for contempt against him in the following wise and manner:
3. That without prejudice to my Urgent Motion for Reconsideration
dated Sept. 27, 1979, undersigned respondent respectfully states to
this Court that the respondent charges that the Court's Resolution of
June 5, 1979 is a "degradation of the administration of justice, " was
never intended as a defiance of this Court's authority. nor to
scandalize the integrity, dignity, and respect which this Court enjoys,
but was an statement made with utmost good faith out of frustration
out of respondent's inability to take his lawyer's oath since April, 1977
and in justifiable indignation at the illegalities perpetrated by both
complainant Emilia E. Andres and Legal Investigator Victor Sevilla,
both members of the Bar which are evident with a cursory perusal of
the typewritten transcript of the stenographic notes of the hearings
conducted by Legal Investigator Sevilla which this Court adopted;
(emphasis supplied).
We reject totally respondent's supposed humble apology "for all his non-conformity to
the use of polite, courteous and civil language in all his pleadings filed with the Court
and on his solemn word of honor pledges not to commit the same hereinafter" and his
disavowal of intent of "defiance of (the) Court's authority nor to scandalize (its) integrity,
dignity and respect which this Court enjoys." Such apology and disavowal appear to be
in sincere, sham and artful for respondent in the same breadth contends that his
statement calling the Court's resolution of June 5, 1979 as "a degradation of the
administration of justice" was made "with utmost, good faith out of frustration of
respondent's inability to take his lawyer's oath since April, 1977 and in justifiable
indignation of the illegalities perpetrated by both complainant Emilia E. Andres and
Legal Investigation Victor Sevilla."
Although respondent is not yet admitted to the legal profession but now stands at the
threshold thereof, having already passed the Bar examinations, it is as much his duty
as every attorney-at-law already admitted to the practice of law to ..observe and
maintain the respect due to the courts of justice and judicial officers (Sec. 20, (b), Rule
138, Rules of Court) and "to abstain from all offensive personality and to advance no
fact prejudicial to the honor or reputation of a party or witness, unless required by the
justice of the cause with which he is charged" (Sec. 20, (f), Rule 138). According to the
Canons of Professional Ethics, it is the duty of the lawyer to maintain towards the courts
a respectful attitude not for the sake of the temporary incumbent of the Judicial office,
but for the maintenance of its supreme importance. Judges, not being wholly free to
defend themselves, are particularly entitled to receive the support of the Bar against
unjust criticism and clamor. This duty is likewise incumbent upon one aspiring to be a
lawyer such as the respondent for the attorney's oath solemnly enjoins him to "conduct
myself as a lawyer according to to the best of my knowledge and discretion with all
good fidelity as well to the Courts as to my client.
The power of the Supreme Court to punish for contempt is inherent and extends to suits
at law as well as to administrative proceedings as in the case at bar for it is as necessary
to maintain respect for the courts, in administrative cases as it is in any other class of
judicial proceedings. Under Rule 71 of the Rules of Court, a person guilty of any
improper conduct tending, directly or indirectly, to impede, obstruct or degrade the
administration of justice may be punished for contempt, and the reason is that respect
for the courts guarantees their stability and permanence Without such guaranty, the
institution of the courts would be resting on a very loose and flimsy foundation, such
power is essential to the proper execution and effective maintenance of judicial
authority.
Respondent's use of vile rude and repulsive language is patent and palpable from the
very words, phrases and sentences he has written and which are quoted herein. 'They
speak for themselves in their vulgarity, insolence and calumny. Specifically,
respondent's direct reference to the Court on the ..sadistic resolution en banc, " "the
cruel and inhuman punishment the Court has speedily bestowed" upon him, that "the
Court does not honor its own resolution," that he is "a victim of the Court's inhuman and
cruel punishment through its supreme inaction," and that he is suffering "humiliation
and vomitting in justice" from this Court is not only disrespectful but his charges are
false, sham and unfounded.
'There is no excuse, much less plea or pretext to brand ultimately the Court's resolution
deferring oath-taking of the respondent as a new lawyer issued June 5, 1979 as "a
degradation of the administration of justice." By his improper conduct in the use of
highly disrespectful insolent language, respondent has tended to degrade the
administration of justice; he has disparaged the dignity and brought to disrepute the
integrity and authority of the Court. He has committed contempt of this Court.
WHEREFORE respondent Stanley Cabrera is found guilty of contempt and he is hereby
sentenced to pay this Court within ten days from notice hereof a fine of Five Hundred
Pesos (P500.00) or imprisonment of fifty (50) days.
Let a copy of this resolution be attached to respondent's personal record in the Office
of the Bar Confidant.
SO ORDERED
Fernando, C.J., Teehankee, Barredo, Makasiar, Antonio, Aquino, Concepcion, Jr.,
Santos, Fernandez, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.
G.R. No. L-18727 August 31, 1964
JESUS MA. CUI, plaintiff-appellee,
vs.
ANTONIO MA. CUI, defendant-appellant,
ROMULO CUI, Intervenor-appellant.
Jose W. Diokno for plaintiff-appellee.
Jaime R. Nuevas and Hector L. Hofileña for defendant-appellant.
Romulo Cui in his own behalf as intervenor-appellants.
MAKALINTAL, J.:
This is a proving in quo warranto originally filed in the Court of First Instance of Cebu.
The office in contention is that of Administrator of the Hospicio de San Jose de Barili.
Judgment was rendered on 27 April 1961 in favor of the plaintiff, Jesus Ma. Cui, and
appealed to us by the defendant, Antonio Ma. Cui, and by the intervenor, Romulo Cui.
The Hospicio is a charitable institution established by the spouses Don Pedro Cui and
Doña Benigna Cui, now deceased, "for the care and support, free of charge, of indigent
invalids, and incapacitated and helpless persons." It acquired corporate existence by
legislation (Act No. 3239 of the Philippine Legislature passed 27 November 1925) and
endowed with extensive properties by the said spouses through a series of donations,
principally the deed of donation executed on 2 January 1926.
Section 2 of Act No. 3239 gave the initial management to the founders jointly and, in
case of their incapacity or death, to "such persons as they may nominate or designate,
in the order prescribed to them." Section 2 of the deed of donation provides as follows:
Que en caso de nuestro fallecimiento o incapacidad para administrar, nos
sustituyan nuestro legitime sobrino Mariano Cui, si al tiempo de nuestra
muerte o incapacidad se hallare residiendo en la caudad de Cebu, y nuestro
sobrino politico Dionisio Jakosalem. Si nuestro dicho sobrino Mariano Cui no
estuviese residiendo entonces en la caudad de Cebu, designamos en su lugar
a nuestro otro sobrino legitime Mauricio Cui. Ambos sobrinos administraran
conjuntamente el HOSPICIO DE SAN JOSE DE BARILI. A la muerte o
incapacidad de estos dos administradores, la administracion del HOSPICIO
DE SAN JOSE DE BARILI pasara a una sola persona que sera el varon,
mayor de edad, que descienda legitimainente de cualquiera de nuestros
sobrinos legitimos Mariano Cui, Mauricio Cui, Vicente Cui y Victor Cui, y que
posea titulo de abogado, o medico, o ingeniero civil, o farmaceutico, o a falta
de estos titulos, el que pague al Estado mayor impuesto o contribution. En
igualdad de circumstancias, sera preferida el varon de mas edad
descendiente de quien tenia ultimamente la administracion. Cuando
absolutamente faltare persona de estas cualificaciones, la administracion del
HOSPICIO DE SAN JOSE DE BARILI pasara al senor Obispo de Cebu o
quien sea el mayor dignatario de la Iglesia Catolica, apostolica, Romana, que
tuviere asiento en la cabecera de esta Provincia de Cebu, y en su defecto, al
Gobierno Provincial de Cebu.
Don Pedro Cui died in 1926, and his widow continued to administer the Hospicio until
her death in 1929. Thereupon the administration passed to Mauricio Cui and Dionisio
Jakosalem. The first died on 8 May 1931 and the second on 1 July 1931. On 2 July
1931 Dr. Teodoro Cui, only son of Mauricio Cui, became the administrator. Thereafter,
beginning in 1932, a series of controversies and court litigations ensued concerning the
position of administrator, to which, in so far as they are pertinent to the present case,
reference will be made later in this decision.
Plaintiff Jesus Ma. Cui and defendant Antonio Ma. Cui are brothers, being the sons of
Mariano Cui, one of the nephews of the spouses Don Pedro Cui and Doña Benigna
Cui. On 27 February 1960 the then incumbent administrator, Dr. Teodoro Cui, resigned
in favor of Antonio Ma. Cui pursuant to a "convenio" entered into between them and
embodied in a notarial document. The next day, 28 February, Antonio Ma. Cui took his
oath of office. Jesus Ma. Cui, however, had no prior notice of either the "convenio" or
of his brother's assumption of the position.
Dr. Teodoro Cui died on 27 August 1960; on 5 September 1960 the plaintiff wrote a
letter to the defendant demanding that the office be turned over to him; and on 13
September 1960, the demand not having been complied with the plaintiff filed the
complaint in this case. Romulo Cui later on intervened, claiming a right to the same
office, being a grandson of Vicente Cui, another one of the nephews mentioned by the
founders of the Hospicio in their deed of donation.
As between Jesus and Antonio the main issue turns upon their respective qualifications
to the position of administrator. Jesus is the older of the two and therefore under equal
circumstances would be preferred pursuant to section 2 of the deed of donation.
However, before the test of age may be, applied the deed gives preference to the one,
among the legitimate descendants of the nephews therein named, "que posea titulo de
abogado, o medico, o ingeniero civil, o farmaceutico, o a falta de estos titulos el que
pague al estado mayor impuesto o contribucion."
The specific point in dispute is the mealing of the term "titulo de abogado." Jesus Ma.
Cui holds the degree of Bachelor of Laws from the University of Santo Tomas (Class
1926) but is not a member of the Bar, not having passed the examinations to qualify
him as one. Antonio Ma. Cui, on the other hand, is a member of the Bar and although
disbarred by this Court on 29 March 1957 (administrative case No. 141), was reinstated
by resolution promulgated on 10 February 1960, about two weeks before he assumed
the position of administrator of the Hospicio de Barili.
The Court a quo, in deciding this point in favor of the plaintiff, said that the phrase "titulo
de abogado," taken alone, means that of a full-fledged lawyer, but that has used in the
deed of donation and considering the function or purpose of the administrator, it should
not be given a strict interpretation but a liberal one," and therefore means a law degree
or diploma of Bachelor of Laws. This ruling is assailed as erroneous both by the
defendant and by the intervenor.
We are of the opinion, that whether taken alone or in context the term "titulo de
abogado" means not mere possession of the academic degree of Bachelor of Laws but
membership in the Bar after due admission thereto, qualifying one for the practice of
law. In Spanish the word "titulo" is defined as "testimonies o instrumento dado para
ejercer un empleo, dignidad o profesion" (Diccionario de la Lengua Española, Real
Academia Espanola, 1947 ed., p. 1224) and the word "abogado," as follows: "Perito en
el derecho positivo que se dedica a defender en juicio, por escrito o de palabra, los
derechos o intereses de los litigantes, y tambien a dar dictmen sobre las cuestiones o
puntos legales que se le consultan (Id., p.5) A Bachelor's degree alone, conferred by a
law school upon completion of certain academic requirements, does not entitle its
holder to exercise the legal profession. The English equivalent of "abogado" is lawyer
or attorney-at-law. This term has a fixed and general signification, and has reference to
that class of persons who are by license officers of the courts, empowered to appear,
prosecute and defend, and upon whom peculiar duties, responsibilities and liabilities
are devolved by law as a consequence.
In this jurisdiction admission to the Bar and to the practice of law is under the authority
of the Supreme Court. According to Rule 138 such admission requires passing the Bar
examinations, taking the lawyer's oath and receiving a certificate from the Clerk of
Court, this certificate being his license to practice the profession. The academic degree
of Bachelor of Laws in itself has little to do with admission to the Bar, except as evidence
of compliance with the requirements that an applicant to the examinations has
"successfully completed all the prescribed courses, in a law school or university,
officially approved by the Secretary of Education." For this purpose, however,
possession of the degree itself is not indispensable: completion of the prescribed
courses may be shown in some other way. Indeed there are instances, particularly
under the former Code of Civil Procedure, where persons who had not gone through
any formal legal education in college were allowed to take the Bar examinations and to
qualify as lawyers. (Section 14 of that code required possession of "the necessary
qualifications of learning ability.") Yet certainly it would be incorrect to say that such
persons do not possess the "titulo de abogado" because they lack the academic degree
of Bachelor of Laws from some law school or university.
The founders of the Hospicio de San Jose de Barili must have established the foregoing
test advisely, and provided in the deed of donation that if not a lawyer, the administrator
should be a doctor or a civil engineer or a pharmacist, in that order; or failing all these,
should be the one who pays the highest taxes among those otherwise qualified. A
lawyer, first of all, because under Act No. 3239 the managers or trustees of
the Hospicio shall "make regulations for the government of said institution (Sec. 3, b);
shall "prescribe the conditions subject to which invalids and incapacitated and destitute
persons may be admitted to the institute" (Sec. 3, d); shall see to it that the rules and
conditions promulgated for admission are not in conflict with the provisions of the Act;
and shall administer properties of considerable value — for all of which work, it is to be
presumed, a working knowledge of the law and a license to practice the profession
would be a distinct asset.
Under this particular criterion we hold that the plaintiff is not entitled, as against the
defendant, to the office of administrator. But it is argued that although the latter is a
member of the Bar he is nevertheless disqualified by virtue of paragraph 3 of the deed
of donation, which provides that the administrator may be removed on the ground,
among others, of ineptitude in the discharge of his office or lack of evident sound moral
character. Reference is made to the fact that the defendant was disbarred by this Court
on 29 March 1957 for immorality and unprofessional conduct. It is also a fact, however,
that he was reinstated on 10 February 1960, before he assumed the office of
administrator. His reinstatement is a recognition of his moral rehabilitation, upon proof
no less than that required for his admission to the Bar in the first place.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of facts.
Whether or not the applicant shall be reinstated rests to a great extent in the
sound discretion of the court. The court action will depend, generally speaking,
on whether or not it decides that the public interest in the orderly and impartial
administration of justice will be conserved by the applicant's participation
therein in the capacity of an attorney and counselor at law. The applicant must,
like a candidate for admission to the bar, satisfy the court that he is a person
of good moral character — a fit and proper person to practice law. The court
will take into consideration the applicant's character and standing prior to the
disbarment, the nature and character of the charge for which he was
disbarred, his conduct subsequent to the disbarment, and the time that has
elapsed between the disbarment and the application for reinstatement. (5 Am.
Jur., Sec. 301, p. 443)
 Evidence of reformation is required before applicant is entitled to
reinstatement, notwithstanding the attorney has received a pardon following
his conviction, and the requirements for reinstatement have been held to be
the same as for original admission to the bar, except that the court may require
a greater degree of proof than in an original admission. (7 C.J.S., Attorney &
Client, Sec. 41, p. 815.)
The decisive questions on an application for reinstatement are whether
applicant is "of good moral character" in the sense in which that phrase is used
when applied to attorneys-at-law and is a fit and proper person to be entrusted
with the privileges of the office of an attorney, and whether his mental
qualifications are such as to enable him to discharge efficiently his duty to the
public, and the moral attributes are to be regarded as a separate and distinct
from his mental qualifications. (7 C.J.S., Attorney & Client, Sec. 41, p. 816).
As far as moral character is concerned, the standard required of one seeking
reinstatement to the office of attorney cannot be less exacting than that implied in
paragraph 3 of the deed of donation as a requisite for the office which is disputed in
this case. When the defendant was restored to the roll of lawyers the restrictions and
disabilities resulting from his previous disbarment were wiped out.
This action must fail on one other ground: it is already barred by lapse of time amounting
the prescription or laches. Under Section 16 of Rule 66 (formerly sec. 16, Rule 68,
taken from section 216 of Act 190), this kind of action must be filed within one (1) year
after the right of plaintiff to hold the office arose.
Plaintiff Jesus Ma. Cui believed himself entitled to the office in question as long ago as
1932. On January 26 of that year he filed a complaint in quo warranto against Dr.
Teodoro Cui, who assumed the administration of the Hospicio on 2 July 1931. Mariano
Cui, the plaintiff's father and Antonio Ma. Cui came in as intervenors. The case was
dismissed by the Court of First Instance upon a demurrer by the defendant there to the
complaint and complaint in intervention. Upon appeal to the Supreme Court from the
order of dismissal, the case was remanded for further proceedings (Cui v. Cui, 60 Phil.
37, 48). The plaintiff, however, did not prosecute the case as indicated in the decision
of this Court, but acceded to an arrangement whereby Teodoro Cui continued as
administrator, Mariano Cui was named "legal adviser" and plaintiff Jesus Ma. Cui
accepted a position as assistant administrator.
Subsequently the plaintiff tried to get the position by a series of extra-judicial
maneuvers. First he informed the Social Welfare Commissioner, by letter dated 1
February 1950, that as of the previous 1 January he had "made clear" his intention of
occupying the office of administrator of the Hospicio." He followed that up with another
letter dated 4 February, announcing that he had taken over the administration as of 1
January 1950. Actually, however, he took his oath of office before a notary public only
on 4 March 1950, after receiving a reply of acknowledgment, dated 2 March, from the
Social Welfare Commissioner, who thought that he had already assumed the position
as stated in his communication of 4 February 1950. The rather muddled situation was
referred by the Commissioner to the Secretary of Justice, who, in an opinion dated 3
April 1950 (op. No. 45, S. 1950), correcting another opinion previously given, in effect
ruled that the plaintiff, not beings lawyer, was not entitled to the administration of
the Hospicio.
Meanwhile, the question again became the subject of a court controversy. On 4 March
1950, the Hospicio commenced an action against the Philippine National Bank in the
Court of First Instance of Cebu (Civ. No. R-1216) because the Bank had frozen
the Hospicio's deposits therein. The Bank then filed a third-party complaint against
herein plaintiff-appellee, Jesus Ma. Cui, who had, as stated above, taken oath as
administrator. On 19 October 1950, having been deprived of recognition by the opinion
of the Secretary of Justice he moved to dismiss the third-party complaint on the ground
that he was relinquishing "temporarily" his claim to the administration of the Hospicio.
The motion was denied in an order dated 2 October 1953. On 6 February 1954 he was
able to take another oath of office as administrator before President Magsaysay, and
soon afterward filed a second motion to dismiss in Civil case No. R-1216. President
Magsaysay, be it said, upon learning that a case was pending in Court, stated in a
telegram to his Executive Secretary that "as far as (he) was concerned the court may
disregard the oath" thus taken. The motion to dismiss was granted nevertheless and
the other parties in the case filed their notice of appeal from the order of dismissal. The
plaintiff then filed an ex-parte motion to be excluded as party in the appeal and the trial
Court again granted the motion. This was on 24 November 1954. Appellants thereupon
instituted a mandamus proceeding in the Supreme Court (G.R. No. L-8540), which was
decided on 28 May 1956, to the effect that Jesus Ma. Cui should be included in the
appeal. That appeal, however, after it reached this Court was dismiss upon motion of
the parties, who agreed that "the office of administrator and trustee of the Hospicio ...
should be ventilated in quo warranto proceedings to be initiated against the incumbent
by whomsoever is not occupying the office but believes he has a right to it" (G.R. No.
L-9103). The resolution of dismissal was issued 31 July 1956. At that time the
incumbent administrator was Dr. Teodoro Cui, but no action in quo warranto was filed
against him by plaintiff Jesus Ma. Cui as indicated in the aforesaid motion for dismissal.
On 10 February 1960, defendant Antonio Ma. Cui was reinstated by this Court as
member of the Bar, and on the following 27 February Dr. Teodoro Cui resigned as
administrator in his favor, pursuant to the "convenio" between them executed on the
same date. The next day Antonio Ma. Cui took his oath of office.
The failure of the plaintiff to prosecute his claim judicially after this Court decided the
first case of Cui v. Cui in 1934 (60 Phil. 3769), remanding it to the trial court for further
proceedings; his acceptance instead of the position of assistant administrator, allowing
Dr. Teodoro Cui to continue as administrator and his failure to file an action in quo
warranto against said Dr. Cui after 31 July 1956, when the appeal in Civil Case No. R-
1216 of the Cebu Court was dismissed upon motion of the parties precisely so that the
conflicting claims of the parties could be ventilated in such an action — all these
circumstances militate against the plaintiff's present claim in view of the rule that an
action in quo warranto must be filed within one year after the right of the plaintiff to hold
the office arose. The excuse that the plaintiff did not file an action against Dr. Teodoro
Cui after 31 July 1956 because of the latter's illness did not interrupt the running of the
statutory period. And the fact that this action was filed within one year of the defendant's
assumption of office in September 1960 does not make the plaintiff's position any
better, for the basis of the action is his own right to the office and it is from the time such
right arose that the one-year limitation must be counted, not from the date the
incumbent began to discharge the duties of said office. Bautista v. Fajardo, 38 Phil.
624; Lim vs. Yulo, 62 Phil. 161.
Now for the claim of intervenor and appellant Romulo Cui. This party is also a lawyer,
grandson of Vicente Cui, one of the nephews of the founders of the Hospicio mentioned
by them in the deed of donation. He is further, in the line of succession, than defendant
Antonio Ma. Cui, who is a son of Mariano Cui, another one of the said nephews. The
deed of donation provides: "a la muerte o incapacidad de estos administradores (those
appointed in the deed itself) pasara a una sola persona que sera el varon, mayor de
edad, que descienda legitimamente de cualquiera de nuestros sobrinos legitimos
Mariano Cui, Mauricio Cui, Vicente Cui, Victor Cui, y que posea titulo de abogado ...
En igualdad de circumstancias, sera preferido el varon de mas edad descendiente de
quien tenia ultimamente la administration." Besides being a nearer descendant than
Romulo Cui, Antonio Ma. Cui is older than he and therefore is preferred when the
circumstances are otherwise equal. The intervenor contends that the intention of the
founders was to confer the administration by line and successively to the descendants
of the nephews named in the deed, in the order they are named. Thus, he argues, since
the last administrator was Dr. Teodoro Cui, who belonged to the Mauricio Cui line, the
next administrator must come from the line of Vicente Cui, to whom the intervenor
belongs. This interpretation, however, is not justified by the terms of the deed of
donation.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is
reversed and set aside, and the complaint as well as the complaint in intervention are
dismissed, with costs equally against plaintiff-appellee and intervenor-appellant.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes and Regala, JJ.,
concur.
A.M. No. 1053 September 7, 1979
SANTA PANGAN, complainant
vs.
ATTY. DIONISIO RAMOS, respondent,
RESOLUTION
ANTONIO, J.:
This has reference to the motion of complainant, Santa Pangan, to cite respondent
Dionisio Ramos for contempt. It appears from the record that on September 7, 1978
and March 13, 1979, the hearings in this administrative case were postponed on the
basis of respondent's motions for postponement. These motions were predicated on
respondent's allegations that on said dates he had a case set for hearing before Branch
VII, Court of First Instance of Manila, entitled People v. Marieta M. Isip (Criminal Case
No. 35906). Upon verification, the attorney of record of the accused in said case is one
"Atty. Pedro D.D. Ramos, 306 Dona Salud Bldg., Dasmarinas Manila." Respondent
admits that he used the name of "Pedro D.D. Ramos" before said court in connection
with Criminal Case No. 35906, but avers that he had a right to do so because in his
Birth Certificate (Annex "A"), his name is "Pedro Dionisio Ramos", and -his parents are
Pedro Ramos and Carmen Dayaw, and that the D.D. in "Pedro D.D. Ramos" is but an
abbreviation of "Dionisio Dayaw his other given name and maternal surname.
This explanation of respondent is untenable. The name appearing in the "Roll of
Attorneys" is "Dionisio D. Ramos". The attorney's roll or register is the official record
containing the names and signatures of those who are authorized to practice law. A
lawyer is not authorized to use a name other than the one inscribed in the Roll of
Attorneys in his practice of law.
The official oath obliges the attorney solemnly to swear that he will do no falsehood".
As an officer in the temple of justice, an attorney has irrefragable obligations of
"truthfulness, candor and frankness". 1 Indeed, candor and frankness should
characterize the conduct of the lawyer at every stage. This has to be so because the
court has the right to rely upon him in ascertaining the truth. In representing himself to
the court as "Pedro D.D. Ramos" instead of "Dionisio D. Ramos", respondent has
violated his solemn oath.
The duty of an attorney to the courts to employ, for the purpose of maintaining the
causes confided to him, such means as are consistent with truth and honor cannot be
overempahisized. These injunctions circumscribe the general duty of entire devotion of
the attorney to the client. As stated in a case, his I nigh vocation is to correctly inform
the court upon the law and the facts of the case, and to aid it in doing justice and arriving
at correct conclusions. He violates Ms oath of office ,when he resorts to deception or
permits his client to do so." 2
In using the name of' Pedro D.D. Ramos" before the courts instead of the name by
which he was authorized to practice law - Dionisio D. Ramos - respondent in effect
resorted to deception. The demonstrated lack of candor in dealing with the courts. The
circumstance that this is his first aberration in this regard precludes Us from imposing
a more severe penalty.
WHEREFORE, in view of the foregoing, respondent Dionisio D. Ramos is severely
REPRIMANDED and warned that a repetition of the same overt act may warrant his
suspencion or disbarment from the practice of law.
It appearing that the hearing of this case has been unduly delayed, the Investigator of
this Court is directed forthwith to proceed with the hearing to terminate it as soon as
possible. The request of complainant to appear in the afore-mentioned hearing,
assisted by her counsel, Atty. Jose U. Lontoc, is hereby granted.
SO ORDERED
Barredo, (Chairman), Concepcion Jr. and Abad Santos, JJ., concur.
Aquino, J., concur in the result.
Santos, is on leave.
July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP,
SALAZAR, FELICIANO, HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR,
FLORENTINO P. FELICIANO, BENILDO G. HERNANDEZ. GREGORIO R.
CASTILLO. ALBERTO P. SAN JUAN, JUAN C. REYES. JR., ANDRES G.
GATMAITAN, JUSTINO H. CACANINDIN, NOEL A. LAMAN, ETHELWOLDO E.
FERNANDEZ, ANGELITO C. IMPERIO, EDUARDO R. CENIZA, TRISTAN A.
CATINDIG, ANCHETA K. TAN, and ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF
THE FIRM NAME "OZAETA, ROMULO, DE LEON, MABANTA & REYES."
RICARDO J. ROMULO, BENJAMIN M. DE LEON, ROMAN MABANTA, JR., JOSE
MA, REYES, JESUS S. J. SAYOC, EDUARDO DE LOS ANGELES, and JOSE F.
BUENAVENTURA, petitioners.
RESOLUTION
MELENCIO-HERRERA, J.:ñé+.£ªwph!1
Two separate Petitions were filed before this Court 1) by the surviving partners of Atty.
Alexander Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty.
Herminio Ozaeta, who died on February 14, 1976, praying that they be allowed to
continue using, in the names of their firms, the names of partners who had passed
away. In the Court's Resolution of September 2, 1976, both Petitions were ordered
consolidated.
Petitioners base their petitions on the following arguments:
1. Under the law, a partnership is not prohibited from continuing its business under a
firm name which includes the name of a deceased partner; in fact, Article 1840 of the
Civil Code explicitly sanctions the practice when it provides in the last paragraph that:
The use by the person or partnership continuing the business of the
partnership name, or the name of a deceased partner as part
thereof, shall not of itself make the individual property of the
deceased partner liable for any debts contracted by such person or
partnership. 1
2. In regulating other professions, such as accountancy and engineering, the legislature
has authorized the adoption of firm names without any restriction as to the use, in such
firm name, of the name of a deceased partner; 2 the legislative authorization given to
those engaged in the practice of accountancy — a profession requiring the same
degree of trust and confidence in respect of clients as that implicit in the relationship of
attorney and client — to acquire and use a trade name, strongly indicates that there is
no fundamental policy that is offended by the continued use by a firm of professionals
of a firm name which includes the name of a deceased partner, at least where such
firm name has acquired the characteristics of a "trade name." 3
3. The Canons of Professional Ethics are not transgressed by the continued use of the
name of a deceased partner in the firm name of a law partnership because Canon 33
of the Canons of Professional Ethics adopted by the American Bar Association declares
that:
... The continued use of the name of a deceased or former partner
when permissible by local custom, is not unethical but care should
be taken that no imposition or deception is practiced through this use.
... 4
4. There is no possibility of imposition or deception because the deaths of their
respective deceased partners were well-publicized in all newspapers of general
circulation for several days; the stationeries now being used by them carry new
letterheads indicating the years when their respective deceased partners were
connected with the firm; petitioners will notify all leading national and international law
directories of the fact of their respective deceased partners' deaths. 5
5. No local custom prohibits the continued use of a deceased partner's name in a
professional firm's name; 6 there is no custom or usage in the Philippines, or at least in
the Greater Manila Area, which recognizes that the name of a law firm necessarily
Identifies the individual members of the firm. 7
6. The continued use of a deceased partner's name in the firm name of law partnerships
has been consistently allowed by U.S. Courts and is an accepted practice in the legal
profession of most countries in the world.8
The question involved in these Petitions first came under consideration by this Court in
1953 when a law firm in Cebu (the Deen case) continued its practice of including in its
firm name that of a deceased partner, C.D. Johnston. The matter was resolved with
this Court advising the firm to desist from including in their firm designation the name
of C. D. Johnston, who has long been dead."
The same issue was raised before this Court in 1958 as an incident in G. R. No. L-
11964, entitled Register of Deeds of Manila vs. China Banking Corporation. The law
firm of Perkins & Ponce Enrile moved to intervene as amicus curiae. Before acting
thereon, the Court, in a Resolution of April 15, 1957, stated that it "would like to be
informed why the name of Perkins is still being used although Atty. E. A. Perkins is
already dead." In a Manifestation dated May 21, 1957, the law firm of Perkins and
Ponce Enrile, raising substantially the same arguments as those now being raised by
petitioners, prayed that the continued use of the firm name "Perkins & Ponce Enrile" be
held proper.
On June 16, 1958, this Court resolved:
After carefully considering the reasons given by Attorneys Alfonso
Ponce Enrile and Associates for their continued use of the name of
the deceased E. G. Perkins, the Court found no reason to depart
from the policy it adopted in June 1953 when it required Attorneys
Alfred P. Deen and Eddy A. Deen of Cebu City to desist from
including in their firm designation, the name of C. D. Johnston,
deceased. The Court believes that, in view of the personal and
confidential nature of the relations between attorney and client, and
the high standards demanded in the canons of professional ethics,
no practice should be allowed which even in a remote degree could
give rise to the possibility of deception. Said attorneys are
accordingly advised to drop the name "PERKINS" from their firm
name.
Petitioners herein now seek a re-examination of the policy thus far enunciated by the
Court.
The Court finds no sufficient reason to depart from the rulings thus laid down.
A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta,
Romulo, De Leon, Mabanta and Reyes" are partnerships, the use in their partnership
names of the names of deceased partners will run counter to Article 1815 of the Civil
Code which provides:
Art. 1815. Every partnership shall operate under a firm name, which
may or may not include the name of one or more of the partners.
Those who, not being members of the partnership, include their
names in the firm name, shall be subject to the liability, of a partner.
It is clearly tacit in the above provision that names in a firm name of a partnership must
either be those of living partners and. in the case of non-partners, should be living
persons who can be subjected to liability. In fact, Article 1825 of the Civil Code prohibits
a third person from including his name in the firm name under pain of assuming the
liability of a partner. The heirs of a deceased partner in a law firm cannot be held liable
as the old members to the creditors of a firm particularly where they are non-lawyers.
Thus, Canon 34 of the Canons of Professional Ethics "prohibits an agreement for the
payment to the widow and heirs of a deceased lawyer of a percentage, either gross or
net, of the fees received from the future business of the deceased lawyer's clients, both
because the recipients of such division are not lawyers and because such payments
will not represent service or responsibility on the part of the recipient. " Accordingly,
neither the widow nor the heirs can be held liable for transactions entered into after the
death of their lawyer-predecessor. There being no benefits accruing, there ran be no
corresponding liability.
Prescinding the law, there could be practical objections to allowing the use by law firms
of the names of deceased partners. The public relations value of the use of an old firm
name can tend to create undue advantages and disadvantages in the practice of the
profession. An able lawyer without connections will have to make a name for himself
starting from scratch. Another able lawyer, who can join an old firm, can initially ride on
that old firm's reputation established by deceased partners.
B. In regards to the last paragraph of Article 1840 of the Civil Code cited by
petitioners, supra, the first factor to consider is that it is within Chapter 3 of Title IX of
the Code entitled "Dissolution and Winding Up." The Article primarily deals with the
exemption from liability in cases of a dissolved partnership, of the individual property of
the deceased partner for debts contracted by the person or partnership which continues
the business using the partnership name or the name of the deceased partner as part
thereof. What the law contemplates therein is a hold-over situation preparatory to formal
reorganization.
Secondly, Article 1840 treats more of a commercial partnership with a good will to
protect rather than of a professional partnership, with no saleable good will but whose
reputation depends on the personal qualifications of its individual members. Thus, it
has been held that a saleable goodwill can exist only in a commercial partnership and
cannot arise in a professional partnership consisting of lawyers. 9
As a general rule, upon the dissolution of a commercial
partnership the succeeding partners or parties have the right to carry
on the business under the old name, in the absence of a stipulation
forbidding it, (s)ince the name of a commercial partnership is a
partnership asset inseparable from the good will of the firm. ... (60
Am Jur 2d, s 204, p. 115) (Emphasis supplied)
On the other hand,
... a professional partnership the reputation of which depends or; the
individual skill of the members, such as partnerships of attorneys or
physicians, has no good win to be distributed as a firm asset on its
dissolution, however intrinsically valuable such skill and reputation
may be, especially where there is no provision in the partnership
agreement relating to good will as an asset. ... (ibid, s 203, p. 115)
(Emphasis supplied)
C. A partnership for the practice of law cannot be likened to partnerships formed by
other professionals or for business. For one thing, the law on accountancy specifically
allows the use of a trade name in connection with the practice of accountancy.10
A partnership for the practice of law is not a legal entity. It is a mere
relationship or association for a particular purpose. ... It is not a
partnership formed for the purpose of carrying on trade or business
or of holding property." 11 Thus, it has been stated that "the use of a
nom de plume, assumed or trade name in law practice is improper. 12
 The usual reason given for different standards of conduct being
applicable to the practice of law from those pertaining to business is
that the law is a profession.
Dean Pound, in his recently published contribution to the Survey of
the Legal Profession, (The Lawyer from Antiquity to Modern
Times, p. 5) defines a profession as "a group of men pursuing a
learned art as a common calling in the spirit of public service, — no
less a public service because it may incidentally be a means of
livelihood."
xxx xxx xxx
Primary characteristics which distinguish the legal profession from
business are:
1. A duty of public service, of which the emolument is a byproduct,
and in which one may attain the highest eminence without making
much money.
2. A relation as an "officer of court" to the administration of justice
involving thorough sincerity, integrity, and reliability.
3. A relation to clients in the highest degree fiduciary.
4. A relation to colleagues at the bar characterized by candor,
fairness, and unwillingness to resort to current business methods of
advertising and encroachment on their practice, or dealing directly
with their clients. 13
"The right to practice law is not a natural or constitutional right but is in the nature of a
privilege or franchise. 14 It is limited to persons of good moral character with special
qualifications duly ascertained and certified. 15 The right does not only presuppose in
its possessor integrity, legal standing and attainment, but also the exercise of a special
privilege, highly personal and partaking of the nature of a public trust." 16
D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar
Association" in support of their petitions.
It is true that Canon 33 does not consider as unethical the continued use of the name
of a deceased or former partner in the firm name of a law partnership when such a
practice is permissible by local custom but the Canon warns that care should be taken
that no imposition or deception is practiced through this use.
It must be conceded that in the Philippines, no local custom permits or allows the
continued use of a deceased or former partner's name in the firm names of law
partnerships. Firm names, under our custom, Identify the more active and/or more
senior members or partners of the law firm. A glimpse at the history of the firms of
petitioners and of other law firms in this country would show how their firm names have
evolved and changed from time to time as the composition of the partnership changed.
The continued use of a firm name after the death of one or more of
the partners designated by it is proper only where sustained by local
custom and not where by custom this purports to Identify the active
members. ...
There would seem to be a question, under the working of the Canon,
as to the propriety of adding the name of a new partner and at the
same time retaining that of a deceased partner who was never a
partner with the new one. (H.S. Drinker, op. cit., supra, at pp.
207208) (Emphasis supplied).
The possibility of deception upon the public, real or consequential, where the name of
a deceased partner continues to be used cannot be ruled out. A person in search of
legal counsel might be guided by the familiar ring of a distinguished name appearing in
a firm title.
E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a
deceased partner's name in the firm name of law partnerships. But that is so because
it is sanctioned by custom.
In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733)
which petitioners Salazar, et al. quoted in their memorandum, the New York Supreme
Court sustained the use of the firm name Alexander & Green even if none of the present
ten partners of the firm bears either name because the practice was sanctioned by
custom and did not offend any statutory provision or legislative policy and was adopted
by agreement of the parties. The Court stated therein:
The practice sought to be proscribed has the sanction of custom and
offends no statutory provision or legislative policy. Canon 33 of the
Canons of Professional Ethics of both the American Bar Association
and the New York State Bar Association provides in part as follows:
"The continued use of the name of a deceased or former partner,
when permissible by local custom is not unethical, but care should
be taken that no imposition or deception is practiced through this
use." There is no question as to local custom. Many firms in the city
use the names of deceased members with the approval of other
attorneys, bar associations and the courts. The Appellate Division of
the First Department has considered the matter and reached The
conclusion that such practice should not be prohibited. (Emphasis
supplied)
xxx xxx xxx
Neither the Partnership Law nor the Penal Law prohibits the practice
in question. The use of the firm name herein is also sustainable by
reason of agreement between the partners. 18
Not so in this jurisdiction where there is no local custom that sanctions the practice.
Custom has been defined as a rule of conduct formed by repetition of acts, uniformly
observed (practiced) as a social rule, legally binding and obligatory. 19 Courts take no
judicial notice of custom. A custom must be proved as a fact, according to the rules of
evidence. 20 A local custom as a source of right cannot be considered by a court of
justice unless such custom is properly established by competent evidence like any
other fact. 21 We find such proof of the existence of a local custom, and of the elements
requisite to constitute the same, wanting herein. Merely because something is done as
a matter of practice does not mean that Courts can rely on the same for purposes of
adjudication as a juridical custom. Juridical custom must be differentiated from social
custom. The former can supplement statutory law or be applied in the absence of such
statute. Not so with the latter.
Moreover, judicial decisions applying or interpreting the laws form part of the legal
system. 22 When the Supreme Court in the Deen and Perkins cases issued its
Resolutions directing lawyers to desist from including the names of deceased partners
in their firm designation, it laid down a legal rule against which no custom or practice to
the contrary, even if proven, can prevail. This is not to speak of our civil law which
clearly ordains that a partnership is dissolved by the death of any partner. 23 Custom
which are contrary to law, public order or public policy shall not be countenanced. 24
The practice of law is intimately and peculiarly related to the administration of justice
and should not be considered like an ordinary "money-making trade."
... It is of the essence of a profession that it is practiced in a spirit of
public service. A trade ... aims primarily at personal gain; a profession
at the exercise of powers beneficial to mankind. If, as in the era of
wide free opportunity, we think of free competitive self assertion as
the highest good, lawyer and grocer and farmer may seem to be
freely competing with their fellows in their calling in order each to
acquire as much of the world's good as he may within the allowed
him by law. But the member of a profession does not regard himself
as in competition with his professional brethren. He is not bartering
his services as is the artisan nor exchanging the products of his skill
and learning as the farmer sells wheat or corn. There should be no
such thing as a lawyers' or physicians' strike. The best service of the
professional man is often rendered for no equivalent or for a trifling
equivalent and it is his pride to do what he does in a way worthy of
his profession even if done with no expectation of reward, This spirit
of public service in which the profession of law is and ought to be
exercised is a prerequisite of sound administration of justice
according to law. The other two elements of a profession, namely,
organization and pursuit of a learned art have their justification in that
they secure and maintain that spirit. 25
In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public
must bow to legal and ethical impediment.
ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop
the names "SYCIP" and "OZAETA" from their respective firm names. Those names
may, however, be included in the listing of individuals who have been partners in their
firms indicating the years during which they served as such.
SO ORDERED.
Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ., concur
Fernando, C.J. and Abad Santos, J., took no part.
A.C. No. 6792 January 25, 2006
ROBERTO SORIANO, Complainant,
vs.
Atty. MANUEL DIZON, Respondent.
DECISION
PER CURIAM:
Before us is a Complaint-Affidavit1 for the disbarment of Atty. Manuel Dizon, filed by
Roberto Soriano with the Commission on Bar Discipine (CBD) of the Integrated Bar of
the Philippines (IBP). Complainant alleges that the conviction of respondent for a crime
involving moral turpitude, together with the circumstances surrounding the conviction,
violates Canon 1 of Rule 1.01 of the Code of Professional Responsibility;2 and
constitutes sufficient ground for his disbarment under Section 27 of Rule 138 of the
Rules of Court.3
Because of the failure of Atty. Dizon to submit his Answer to the Complaint, the CBD
issued a Notice dated May 20, 2004, informing him that he was in default, and that an
ex-parte hearing had been scheduled for June 11, 2004.4 After that hearing,
complainant manifested that he was submitting the case on the basis of the Complaint
and its attachments.5 Accordingly, the CBD directed him to file his Position Paper,
which he did on July 27, 2004.6 Afterwards, the case was deemed submitted for
resolution.
On December 6, 2004, Commissioner Teresita J. Herbosa rendered her Report and
Recommendation, which was later adopted and approved by the IBP Board of
Governors in its Resolution No. XVI-2005-84 dated March 12, 2005.
In his Complaint-Affidavit, Soriano alleged that respondent had violated Canon 1, Rule
1.01 of the Code of Professional Responsibility; and that the conviction of the latter for
frustrated homicide,7 which involved moral turpitude, should result in his disbarment.
The facts leading to respondent’s conviction were summarized by Branch 60 of the
Regional Trial Court of Baguio City in this wise:
"x x x. The accused was driving his brown Toyota Corolla and was on his way home
after gassing up in preparation for his trip to Concepcion, Tarlac with his wife. Along
Abanao Street, a taxi driver overtook the car driven by the accused not knowing that
the driver of the car he had overtaken is not just someone, but a lawyer and a prominent
member of the Baguio community who was under the influence of liquor. Incensed, the
accused tailed the taxi driver until the latter stopped to make a turn at [the] Chugum
and Carino Streets. The accused also stopped his car, berated the taxi driver and held
him by his shirt. To stop the aggression, the taxi driver forced open his door causing
the accused to fall to the ground. The taxi driver knew that the accused had been
drinking because he smelled of liquor. Taking pity on the accused who looked elderly,
the taxi driver got out of his car to help him get up. But the accused, by now enraged,
stood up immediately and was about to deal the taxi driver a fist blow when the latter
boxed him on the chest instead. The accused fell down a second time, got up again
and was about to box the taxi driver but the latter caught his fist and turned his arm
around. The taxi driver held on to the accused until he could be pacified and then
released him. The accused went back to his car and got his revolver making sure that
the handle was wrapped in a handkerchief. The taxi driver was on his way back to his
vehicle when he noticed the eyeglasses of the accused on the ground. He picked them
up intending to return them to the accused. But as he was handing the same to the
accused, he was met by the barrel of the gun held by the accused who fired and shot
him hitting him on the neck. He fell on the thigh of the accused so the latter pushed him
out and sped off. The incident was witnessed by Antonio Billanes whose testimony
corroborated that of the taxi driver, the complainant in this case, Roberto Soriano."8
It was the prosecution witness, Antonio Billanes, who came to the aid of Soriano and
brought the latter to the hospital. Because the bullet had lacerated the carotid artery on
the left side of his neck,9 complainant would have surely died of hemorrhage if he had
not received timely medical assistance, according to the attending surgeon, Dr.
Francisco Hernandez, Jr. Soriano sustained a spinal cord injury, which caused
paralysis on the left part of his body and disabled him for his job as a taxi driver.
The trial court promulgated its Decision dated November 29, 2001. On January 18,
2002, respondent filed an application for probation, which was granted by the court on
several conditions. These included satisfaction of "the civil liabilities imposed by [the]
court in favor of the offended party, Roberto Soriano."10
According to the unrefuted statements of complainant, Atty. Dizon, who has yet to
comply with this particular undertaking, even appealed the civil liability to the Court of
Appeals.11
In her Report and Recommendation, Commissioner Herbosa recommended that
respondent be disbarred from the practice of law for having been convicted of a crime
involving moral turpitude.
The commissioner found that respondent had not only been convicted of such crime,
but that the latter also exhibited an obvious lack of good moral character, based on the
following facts:
"1. He was under the influence of liquor while driving his car;
"2. He reacted violently and attempted to assault Complainant only because
the latter, driving a taxi, had overtaken him;
"3. Complainant having been able to ward off his attempted assault,
Respondent went back to his car, got a gun, wrapped the same with a
handkerchief and shot Complainant[,] who was unarmed;
"4. When Complainant fell on him, Respondent simply pushed him out and
fled;
"5. Despite positive identification and overwhelming evidence, Respondent
denied that he had shot Complainant;
"6. Apart from [his] denial, Respondent also lied when he claimed that he was
the one mauled by Complainant and two unidentified persons; and,
"7. Although he has been placed on probation, Respondent has[,] to date[,]
not yet satisfied his civil liabilities to Complainant."12
On July 8, 2005, the Supreme Court received for its final action the IBP Resolution
adopting the Report and Recommendation of the Investigating Commissioner.
We agree with the findings and recommendations of Commissioner Herbosa, as
approved and adopted by the IBP Board of Governors.
Under Section 27 of Rule 138 of the Rules of Court, conviction for a crime involving
moral turpitude is a ground for disbarment or suspension. By such conviction, a lawyer
is deemed to have become unfit to uphold the administration of justice and to be no
longer possessed of good moral character.13 In the instant case, respondent has been
found guilty; and he stands convicted, by final judgment, of frustrated homicide. Since
his conviction has already been established and is no longer open to question, the only
issues that remain to be determined are as follows: 1) whether his crime of frustrated
homicide involves moral turpitude, and 2) whether his guilt warrants disbarment.
Moral turpitude has been defined as "everything which is done contrary to justice,
modesty, or good morals; an act of baseness, vileness or depravity in the private and
social duties which a man owes his fellowmen, or to society in general, contrary to
justice, honesty, modesty, or good morals."14
The question of whether the crime of homicide involves moral turpitude has been
discussed in International Rice Research Institute (IRRI) v. NLRC,15 a labor case
concerning an employee who was dismissed on the basis of his conviction for homicide.
Considering the particular circumstances surrounding the commission of the crime, this
Court rejected the employer’s contention and held that homicide in that case did not
involve moral turpitude. (If it did, the crime would have been violative of the IRRI’s
Employment Policy Regulations and indeed a ground for dismissal.) The Court
explained that, having disregarded the attendant circumstances, the employer made a
pronouncement that was precipitate. Furthermore, it was not for the latter to determine
conclusively whether a crime involved moral turpitude. That discretion belonged to the
courts, as explained thus:
"x x x. Homicide may or may not involve moral turpitude depending on the degree of
the crime. Moral turpitude is not involved in every criminal act and is not shown by every
known and intentional violation of statute, but whether any particular conviction involves
moral turpitude may be a question of fact and frequently depends on all the surrounding
circumstances. x x x."16 (Emphasis supplied)
In the IRRI case, in which the crime of homicide did not involve moral turpitude, the
Court appreciated the presence of incomplete self-defense and total absence of
aggravating circumstances. For a better understanding of that Decision, the
circumstances of the crime are quoted as follows:
"x x x. The facts on record show that Micosa [the IRRI employee] was then urinating
and had his back turned when the victim drove his fist unto Micosa's face; that the victim
then forcibly rubbed Micosa's face into the filthy urinal; that Micosa pleaded to the victim
to stop the attack but was ignored and that it was while Micosa was in that position that
he drew a fan knife from the left pocket of his shirt and desperately swung it at the
victim who released his hold on Micosa only after the latter had stabbed him several
times. These facts show that Micosa's intention was not to slay the victim but only to
defend his person. The appreciation in his favor of the mitigating circumstances of self-
defense and voluntary surrender, plus the total absence of any aggravating
circumstance demonstrate that Micosa's character and intentions were not inherently
vile, immoral or unjust."17
The present case is totally different. As the IBP correctly found, the circumstances
clearly evince the moral turpitude of respondent and his unworthiness to practice law.
Atty. Dizon was definitely the aggressor, as he pursued and shot complainant when the
latter least expected it. The act of aggression shown by respondent will not be mitigated
by the fact that he was hit once and his arm twisted by complainant. Under the
circumstances, those were reasonable actions clearly intended to fend off the lawyer’s
assault.
We also consider the trial court’s finding of treachery as a further indication of the
skewed morals of respondent. He shot the victim when the latter was not in a position
to defend himself. In fact, under the impression that the assault was already over, the
unarmed complainant was merely returning the eyeglasses of Atty. Dizon when the
latter unexpectedly shot him. To make matters worse, respondent wrapped the handle
of his gun with a handkerchief so as not to leave fingerprints. In so doing, he betrayed
his sly intention to escape punishment for his crime.
The totality of the facts unmistakably bears the earmarks of moral turpitude. By his
conduct, respondent revealed his extreme arrogance and feeling of self-importance. As
it were, he acted like a god on the road, who deserved to be venerated and never to be
slighted. Clearly, his inordinate reaction to a simple traffic incident reflected poorly on
his fitness to be a member of the legal profession. His overreaction also evinced
vindictiveness, which was definitely an undesirable trait in any individual, more so in a
lawyer. In the tenacity with which he pursued complainant, we see not the persistence
of a person who has been grievously wronged, but the obstinacy of one trying to assert
a false sense of superiority and to exact revenge.
It is also glaringly clear that respondent seriously transgressed Canon 1 of the Code of
Professional Responsibility through his illegal possession of an unlicensed
firearm18 and his unjust refusal to satisfy his civil liabilities.19 He has thus brazenly
violated the law and disobeyed the lawful orders of the courts. We remind him that, both
in his attorney’s oath20 and in the Code of Professional Responsibility, he bound himself
to "obey the laws of the land."
All told, Atty. Dizon has shown through this incident that he is wanting in even a basic
sense of justice. He obtained the benevolence of the trial court when it suspended his
sentence and granted him probation. And yet, it has been four years21 since he was
ordered to settle his civil liabilities to complainant. To date, respondent remains
adamant in refusing to fulfill that obligation. By his extreme impetuosity and intolerance,
as shown by his violent reaction to a simple traffic altercation, he has taken away the
earning capacity, good health, and youthful vigor of his victim. Still, Atty. Dizon
begrudges complainant the measly amount that could never even fully restore what the
latter has lost.
Conviction for a crime involving moral turpitude may relate, not to the exercise of the
profession of lawyers, but certainly to their good moral character.22 Where their
misconduct outside of their professional dealings is so gross as to show them morally
unfit for their office and unworthy of the privileges conferred upon them by their license
and the law, the court may be justified in suspending or removing them from that
office.23
We also adopt the IBP’s finding that respondent displayed an utter lack of good moral
character, which is an essential qualification for the privilege to enter into the practice
of law. Good moral character includes at least common honesty.24
In the case at bar, respondent consistently displayed dishonest and duplicitous
behavior. As found by the trial court, he had sought, with the aid of Vice-Mayor Daniel
Fariñas, an out-of-court settlement with complainant’s family.25 But when this effort
failed, respondent concocted a complete lie by making it appear that it was
complainant’s family that had sought a conference with him to obtain his referral to a
neurosurgeon.26
The lies of Atty Dizon did not end there. He went on to fabricate an entirely implausible
story of having been mauled by complainant and two other persons.27 The trial court
had this to say:
"The physical evidence as testified to by no less than three (3) doctors who examined
[Atty. Dizon] does not support his allegation that three people including the complainant
helped each other in kicking and boxing him. The injuries he sustained were so minor
that it is improbable[,] if not downright unbelievable[,] that three people who he said
were bent on beating him to death could do so little damage. On the contrary, his
injuries sustain the complainant’s version of the incident particularly when he said that be entered in his record as a member of the Bar; and let notice of the same be served
he boxed the accused on the chest. x x x."28 on the Integrated Bar of the Philippines, and on the Office of the Court Administrator
for circulation to all courts in the country.
Lawyers must be ministers of truth. No moral qualification for bar membership is more
important than truthfulness.29 The rigorous ethics of the profession places a premium SO ORDERED.
on honesty and condemns duplicitous behavior.30 Hence, lawyers must not mislead the
court or allow it to be misled by any artifice. In all their dealings, they are expected to G.R. No. 63145 October 5, 1999
act in good faith.
SULPICIA VENTURA, petitioner,
The actions of respondent erode rather than enhance public perception of the legal vs.
profession. They constitute moral turpitude for which he should be disbarred. "Law is a HON. FRANCIS J. MILITANTE, in His Capacity as Presiding Judge, Regional
noble profession, and the privilege to practice it is bestowed only upon individuals who Trial Court, 7th Judicial District, Branch XII, Cebu City; and JOHN
are competent intellectually, academically and, equally important, morally. Because UY, respondent.
they are vanguards of the law and the legal system, lawyers must at all times conduct
themselves, especially in their dealings with their clients and the public at large, with
honesty and integrity in a manner beyond reproach."31 PUNO, J.:

The foregoing abhorrent acts of respondent are not merely dishonorable; they reveal a This is a Petition for Certiorari assailing the Order 1 of public respondent directing her
basic moral flaw. Considering the depravity of the offense he committed, we find the to file an Answer to the Complaint for a Sum of Money with Damages filed by private
penalty recommended by the IBP proper and commensurate. respondent after denying her Motion to Dismiss. 2

The purpose of a proceeding for disbarment is to protect the administration of justice There is no dispute as to the following relevant facts:
by requiring that those who exercise this important function be competent, honorable
and reliable -- lawyers in whom courts and clients may repose confidence.32 Thus, Private respondent filed a Complaint for a Sum of Money and Damages against
whenever a clear case of degenerate and vile behavior disturbs that vital yet fragile petitioner which reads:
confidence, we shall not hesitate to rid our profession of odious members.
REPUBLIC OF THE PHILIPPINES
We remain aware that the power to disbar must be exercised with great caution, and
that disbarment should never be decreed when any lesser penalty would accomplish COURT OF FIRST INSTANCE OF CEBU
the end desired. In the instant case, however, the Court cannot extend that munificence
to respondent. His actions so despicably and wantonly disregarded his duties to society
and his profession. We are convinced that meting out a lesser penalty would be 14th Judicial District
irreconcilable with our lofty aspiration for the legal profession -- that every lawyer be a
shining exemplar of truth and justice. BRANCH ___

We stress that membership in the legal profession is a privilege demanding a high MR. JOHN UY, Proprietor of Cebu
degree of good moral character, not only as a condition precedent to admission, but
also as a continuing requirement for the practice of law. Sadly, herein respondent has
Textar Auto Supply,
fallen short of the exacting standards expected of him as a vanguard of the legal
profession.
Plaintiff,
In sum, when lawyers are convicted of frustrated homicide, the attending circumstances
– not the mere fact of their conviction – would demonstrate their fitness to remain in the -versus- CIVIL CASE NO. R-21968
legal profession. In the present case, the appalling vindictiveness, treachery, and
brazen dishonesty of respondent clearly show his unworthiness to continue as a For: SUM OF MONEY AND
member of the bar.
DAMAGES
WHEREFORE, RESPONDENT MANUEL DIZON is hereby DISBARRED, and his
name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision
ESTATE OF CARLOS NGO as
represented by surviving
spouse Ms. SULPICIA VENTURA,
Defendant.
COMPLAINT
PLAINTIFF, thru counsel, unto this Honorable Court, most
respectfully states that:
1. He is of legal age, Filipino and proprietor of Cebu Textar Auto
Supply whose postal address is at 177 Leon Kilat St., Cebu City,
while the defendant is an estate of Carlos Ngo as represented by
surviving spouse Ms. Sulpicia Ventura with residence and postal
address at-Back [sic] of Chong Hua Hospital, Cebu City where
summons and other processes of the Court could be effected;
2. During the lifetime of Carlos Ngo he was indebted with the
plaintiff in the amount of P48,889.70 as evidenced by the hereto
attached statement marked as Annexes A and A-1 which account
was obtained by him for the benefit of his family;
3. Said obligation is already due and demandable and the
defendant thru Ms. Ventura who is ostensibly taking care of the
properties/estate of deceased Carlos Ngo, refused, failed and
neglected and still continues to refuse, fail and neglect to pay
despite repeated demands;
4. As a consequence of the refusal to pay the plaintiff was
compelled to retain the services of counsel with whom he
contracted to pay P10,000.00 as attorney's fees. Upon institution of
this complaint, he has further incurred initial litigation expenditures
in the sum of P4,000.00.1âwphi1.nêt
WHEREFORE, this Honorable Court is most respectfully prayed to
render judgment for the plaintiff by —
1. Ordering the defendant to pay the plaintiff the sum of P48,889.70
plus interest until the obligation is fully paid;
2. Ordering the defendant to pay the plaintiff the amount of
P10,000.00 as attorney's fees plus P4,000.00 as reimbursement of
the initial litigation expenditures.
FURTHER plaintiff prays for such other relief or remedy in
accordance with law, justice and equity.
Cebu City, Philippines, March 29, 1982.
xxx xxx xxx 3
Petitioner moved to dismiss the foregoing complaint on the ground that "the estate of
Carlos Ngo has no legal personality," the same being "neither a natural nor legal
person in contemplation of law" 4 .
In his Opposition to Motion to Dismiss, 5 petitioner insisted that since "the money
claim subject of this case actually represents the costs of automotive spare
parts/replacements contracted by deceased Carlos Ngo during his lifetime for the
benefit/business of the family . . . the conjugal partnership . . . shall be accountable for
the payment thereof." 6 Subsequently, private respondent's counsel manifested that
he is poised to "amend the complaint in order to state the correct party defendant that
he intends to sue in this case" 7. The public respondent gave private respondent
fifteen (15) days to make the amendment.
Petitioner filed a Motion for Reconsideration 8 of the order of public respondent
permitting private respondent to amend his complaint. First, she argued that the
action instituted by the private respondent to recover P48,889.70, representing the
unpaid price of the automotive spare parts purchased by her deceased husband
during his lifetime, is a money claim which, under Section 21, Rule 3 of the Revised
Rules of Court, does not survive, the same having been filed after Carlos Ngo had
already died. Second, she claimed that the public respondent never acquired
jurisdiction over the subject matter of the case which, being an action to recover a
sum of money from a deceased person, may only be heard by a probate court.
Private respondent opposed the foregoing motion. 9 He insisted that petitioner, being
the wife of the deceased Carlos Ngo, is liable to pay the obligation which benefited
their family.
Public respondent issued an Order giving private respondent twenty four (24) hours to
file his amended complaint "so that the Court can determine for itself whether there is
really a cause of action against the defendant who would be substituted to the Estate
of Carlos Ngo," considering that "it would seem from the arguments of counsel for
plaintiff . . . that the debt incurred by the deceased Carlos [sic] Ngo was in behalf of
the conjugal partnership so that the wife of Carlos Ngo might be liable to pay the
obligation." 10
Private respondent then filed his Amended Complaint 11 with the new allegations
underscored therein as follows:
 REPUBLIC OF THE PHILIPPINES xxx xxx xxx12

COURT OF FIRST INSTANCE OF CEBU Petitioner filed a Comment to Plaintiff's Amended Complaint.13 She reiterated that
whether the unsecured debt was contracted by her husband alone or as a charge
14th Judicial District against the conjugal partnership of gains, it cannot be denied that her husband was
now deceased, the said debt does not survive him, the conjugal partnership of gains
is terminated upon the death of one of the spouses, and the debts and charges
BRANCH XII against the conjugal partnership of gains may only be paid after an inventory is made
in the appropriate testate or intestate proceeding.
MR. JOHN UY, Proprietor of Cebu
Private respondent filed a Rejoinder to Defendant's Comment. 14 He countered that
Textar Auto Supply, the defendant in his amended complaint was now petitioner and that she was not
deceased, hence the inapplicability of the legal rules on the abatement of money
Plaintiff, claims in case the defendant dies pending their prosecution.

-versus- CIVIL CASE NO. R-21968 Public respondent issued the herein assailed order which reads as follows:

For: SUM OF MONEY AND ORDER

MS. SULPICIA VENTURA, DAMAGES This case is called today to deal on the motion for reconsideration
of the order of this Court dated November 16, 1982 denying the
motion of the defendant to dismiss the complaint.
Defendant.
In its order of November 16, 1982, the Court in the interest of
justice advised the plaintiff to make the proper amendment so that
the proper party defendant may be impleaded considering that the
AMENDED COMPLAINT motion to dismiss then was anchored on the ground that the estate
of Carlos Ngo was not a natural nor juridical person, hence it could
not be sued. On December 23, 1982, the plaintiff amended its
PLAINTIFF thru counsel, unto this Honorable Court most
complaint and this time the defendant is already Sulpicia Ventura.
respectfully states that:
The defendant now argues that even the amended complaint would
show that this is really a collection of a debt of the conjugal
1. . . . partnership of deceased Carlong [sic] Ngo and his wife.

2. During the lifetime of Carlos Ngo he and his wife, the defendant
herein are indebted with the plaintiff in the amount of P48,889.70 as
evidenced by the hereto attached statement marked as Annexes A
and A-1 which account was obtained for the benefit of their
family and is being confirmed by their son Roy Ngo per his
signature marked as Annex "A-2";
3. . . .
4. For several times, the defendant had concealed herself in her
house when the plaintiff's representative went to her residence to
collect payment of the said account;
5. . . .
Perusing the amended complaint, the Court finds that in Paragraph
2 the allegation states: "During the lifetime of Carlos Ngo, he and
his wife, the defendant, are indebted with the plaintiff in the amount
of P48,689.70, (sic) etc.," so that the indebtedness was incurred by
Carlos Ngo and defendant Sulpicia Ventura and since Carlos Ngo
is now dead that will not preclude the plaintiff from filing a case
against the living defendant, Sulpicia Ventura.
WHEREFORE, the motion for reconsideration is hereby DENIED
and the defendant may file her answer within fifteen (15) days from
today.
IT IS SO ORDERED. 15
Petitioner scurried to this Court praying that the foregoing order of the public
respondent be set aside and the amended complaint of private respondent, ordered
dismissed. 16
We grant the petition.
First. Sec. 1, Rule 3 of the Revised Rules of Court provided that "only natural or
judicial persons, or entities authorized by law may be parties in a civil action". This
was the rule in 1982 at the time that private respondent filed his complaint against
petitioner. In 1997, the rules on civil procedure were revised, but Sec. 1, Rule 3
remained largely unaltered, except for the change of the word, "judicial" to "juridical".
Parties may be either plaintiffs or defendants. The plaintiff in an action is the party
complaining, and a proper party plaintiff is essential to confer jurisdiction on the
court.17 In order to maintain an action in a court of justice, the plaintiff must have an
actual legal existence, that is, he, she or it must be a person in law and possessed of
a legal entity as either a natural or an artificial person, and no suit can be lawfully
prosecuted save in the name of such a person. 18
The rule is no different as regards party defendants. It is incumbent upon a plaintiff,
when he institutes a judicial proceeding, to name the proper party defendant to his
cause of action.19 In a suit or proceeding in personam of an adversary character, the
court can acquire no jurisdiction for the purpose of trial or judgment until a party
defendant who actually or legally exists and is legally capable of being sued, is
brought before it. 20 It has even been held that the question of the legal personality of
a party defendant is a question of substance going to the jurisdiction of the court and
not one of procedure. 21
The original complaint of petitioner named the "estate of Carlos Ngo as represented
by surviving spouse Ms. Sulpicia Ventura" as the defendant. Petitioner moved to
dismiss the same on the ground that the defendant as named in the complaint had no
legal personality. We agree.
Neither a dead person nor his estate may be a party plaintiff in a court action. A
deceased person does not have such legal entity as is necessary to bring action so
much so that a motion to substitute cannot lie and should be denied by the
court. 22 An action begun by a decedent's estate cannot be said to have been begun
by a legal person, since an estate is not a legal entity; such an action is a nullity and a
motion to amend the party plaintiff will not likewise lie, there being nothing before the
court to amend. 23 Considering that capacity to be sued is a correlative of the capacity
to sue, to the same extent, a decedent does not have the capacity to be sued and
may not be named a party defendant in a court action. 24
Second. It is clear that the original complaint of private respondent against the estate
of Carlos Ngo was a suit against Carlos Ngo himself who was already dead at the
time of the filing of said complaint. At that time, and this private respondent admitted,
no special proceeding to settle his estate had been filed in court. As such, the trial
court did not acquire jurisdiction over either the deceased Carlos Ngo or his estate.
To cure this fatal defect, private respondent amended his original complaint. In his
amended complaint, private respondent deleted the estate of Carlos Ngo and named
petitioner as the defendant. When petitioner, in her comment to the amended
complaint, reasoned that the conjugal partnership of gains between her and Carlos
Ngo was terminated upon the latter's death and that the debt which he contracted,
assuming it was a charge against the conjugal property, could only be paid after an
inventory is made in the appropriate testate or intestate proceeding, private
respondent simply reiterated his demand that petitioner pay her husband's debt
which, he insisted, redounded to the benefit of everyone in her family.
It is true that amendments to pleadings are liberally allowed in furtherance of justice,
in order that every case may so far as possible be determined on its real facts, and in
order to speed the trial of causes or prevent the circuitry of action and unnecessary
expense. 25 But amendments cannot be allowed so as to confer jurisdiction upon a
court that never acquired it in the first place. 26 When it is evident that the court has no
jurisdiction over the person and the subject matter and that the pleading is so fatally
defective as not to be susceptible of amendment, or that to permit such amendment
would radically alter the theory and the nature of the action, then the court should
refuse the amendment of the defective pleading and order the dismissal of the
case. 27
Moreover, as correctly argued by petitioner, the conjugal partnership terminates upon
the death of either spouse. 28 After the death of one of the spouses, in case it is
necessary to sell any portion of the conjugal property in order to pay outstanding
obligations of the partnership, such sale must be made in the manner and with the
formalities established by the Rules of Court for the sale of the property of deceased
persons. 29 Where a complaint is brought against the surviving spouse for the
recovery of an indebtedness chargeable against said conjugal property, any judgment
obtained thereby is void. 30 The proper action should be in the form of a claim to be
filed in the testate or intestate proceedings of the deceased spouse. 31
In many cases as in the instant one, even after the death of one of the spouses, there
is no liquidation of the conjugal partnership. This does not mean, however, that the
conjugal partnership continues. 32 And private respondent cannot be said to have no
remedy. Under Sec. 6, Rule 78 of the Revised Rules of Court, he may apply in court
for letters of administration in his capacity as a principal creditor of the deceased
Carlos Ngo if after thirty (30) days from his death, petitioner failed to apply for
administration or request that administration be granted to some other
person.1âwphi1.nêt
WHEREFORE, the instant petition for certiorari is GRANTED. The Amended
Complaint filed by private respondent is HEREBY DISMISSED.
SO ORDERED.
Pardo and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., and Kapunan, J., are on official leave.
G.R. No. 96492 November 26, 1992
ROMEO REYES, ANGEL PARAYAO, and EMILIO MANANGHAYA, petitioners,
vs.
THE COURT OF APPEALS, EUFROCINA DE LA CRUZ and VIOLETA DELOS
REYES, respondents.
NOCON, J.:
Petitioners Romeo Reyes, Angel Parayao and Emilio Mananghaya question the
respondent Court's decision promulgated on November 22, 1990, 1 which affirmed with
modification the agrarian court's decision promulgated January 10, 1990,2 which
ordered them and the other defendants therein to, among others, restore possession
of the disputed landholding to private respondent, Eufrocina Vda. dela Cruz. Said
respondent court's decision is now final and executory as to Olympio Mendoza and
Severino Aguinaldo, the other petitioners in the respondent court, since they did not
appeal the same.
Since petitioners do not dispute the findings of fact of the respondent Court, the same
shall be quoted verbatim and are as follows:
It appears from the records that Juan Mendoza, father of herein
defendant Olympio Mendoza, is the owner of Farm Lots Nos. 46 and
106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare,
Candaba, Pampanga, with an area of 23,000 square meters and
19,000 square meters, respectively. Devoted to the production of
palay, the lots were tenanted and cultivated by Julian dela Cruz,
husband of plaintiff Eufrocina dela Cruz. Julian died on September
25, 1979.
In her complaint, Eufrocina alleged that upon the death of Julian, she
succeeded him as bona fide tenant of the subject lots; that between
July 7 to July 15, 1984, Olympio Mendoza, in conspiracy with the
other defendants, prevented her daughter Violeta and her workers
through force, intimidation, strategy and stealth, from entering and
working on the subject premises; and that until the filing of the instant
case, defendants had refused to vacate and surrender the lots, thus
violating her tenancy rights. Plaintiff therefore prayed for judgment
for the recovery of possession and damages with a writ of preliminary
mandatory injunction in the meantime.
Defendants Reyes, Parayao, Aguinaldo and Mananghaya, duly
elected and/or appointed barangay officials of Bahay Pare, Candaba,
Pampanga, denied interference in the tenancy relationship existing
between plaintiff and defendant Mendoza, particularly in the
cultivation of the latter's farm lots. Claiming that they have always
exercised fairness, equity, reason and impartiality in the discharge of
their official functions, they asked for the dismissal of the case and
claimed moral damages and attorney's fees in the total amount of
P165,000.00 (Answer with Counterclaim, Records, pp. 48-51).
For his part, defendant Mendoza raised abandonment, sublease and
mortgage of the farm lots without his consent and approval, and non-
payment of rentals, irrigation fees and other taxes due the
government, as his defenses. He also demanded actual and
exemplary damages, as well as attorney's fees (Answer, pp. 77-78).
During the pendency of the case in the lower court, Mendoza of the
case in the lower court, Mendoza was in possession of the subject
lots and had cultivated the same. Upon motion of plaintiff, the court
directed its Deputy Sheriff to supervise the harvesting of the palay
crops, to cause the threshing thereof and to deposit the net harvest
(after deducting from the expenses incurred), in a bonded warehouse
of the locality subject to the disposition of the court. 3
The respondent Court rendered judgment affirming the appealed agrarian court's
decision with the modification that Lot 106 is not covered by it.
The dispositive portion of the appealed decision, which was modified, states as follows:
WHEREFORE, judgment is hereby rendered, in favor of plaintiff and
against defendants:
On the Mandatory Injunction:
1. Ordering said defendants to restore possession of the landholding
subject of the action to the plaintiff and enjoining said defendants and
any person claiming under them to desist from molesting them or
interfering with the possession and cultivation of the landholding
descriptive in paragraph 3 of the complaint, to wit:
Farm Lots Nos. 46 and 106, Block 2, Psd-38453
of the Bahay Pare Estate, Bahay Pare, Candaba,
Pampanga, with a total area of 23,969 square
meters, more or less, owned by a certain Juan
Mendoza, and devoted principally to the
production of palay, as evidenced by a
Certification from the Ministry of Agrarian Reform
issued on July 30, 1984.
2. a) Ordering the defendants to vacate the premises of the two
landholding in question and to respect the tenancy rights of plaintiff
with respect to the same;
 b) Ordering defendants, jointly and severally to pay unto plaintiff 220
cavans of palay or its equivalent in cash of P33,000.00 from the
principal crop year of 1984, and every harvest time until defendants
finally vacate and surrender possession and cultivation of the
landholding in question to plaintiff.
c) the prayer for moral damages, not having been sufficiently proved,
the same is denied.
d) Ordering defendants jointly and severally, to pay the costs of suit.
The awards herein provided should first be satisfied from the
deposits of the harvests ordered by the Court from which the planting
and harvesting expenses have been paid to defendant Olympio
Mendoza; and if said net deposits with the Court or the warehouses
as ordered by the Court are insufficient, then the balance should be
paid by defendants, jointly and severally. 4
Defendants who are the petitioners in this case, in a Petition for Review on Certiorari,
present for the consideration of the Court:
[T]he lone issue of whether or not they can be held liable, jointly and
severally, with the other defendants, for the harvests of the litigated
property, Lot No. 46, or the money equivalent thereof starting from
the principal crop years of 1984 and every harvest time thereafter
until the possession and cultivation of the aforestated landholding are
finally surrendered to the private respondent. 5
It is the position of petitioners that they are not liable jointly and severally with Olympio
Mendoza and Severino Aguinaldo because the present petition involves Lot No. 46,
Block 2, Psd-38453 of the bahay Pare Estate, bahay Pare, Candaba, Pampanga and
not Lot No. 106 of the estate, which lot was purchased by petitioner Romeo Reyes from
Olympio Mendoza's father, Juan, and which he later donated to the barangay Bahay
Pare of Candaba, Pampanga, for the construction of the Bahay Pare Barangay High
School. 6 As to their supposed participation in the dispossession of private respondent
from the disputed landholding, petitioners present the September 30, 1987 Resolution
of Investigating Fiscal Jesus M. Pamintuan, as approved by Pampanga Provincial
Fiscal Villamor I. Dizon, in I.S. No. 8576, 7 wherein private respondent's complaint
against petitioners and the other defendants in the agrarian court for violation of P.D.
5838 was dismissed, to show that private respondent's "point is already settled and
considered closed." 9 lastly, petitioners claim that they were included in the present
controversy so that their political career would be destroyed.10
Private respondents deny petitioners' allegations and contend that it was petitioners
who conspired with Olympio Mendoza and Severino Aguinaldo in ejecting them not
only from Lot No. 46 but also from Lot No. 106. They maintain that it was in Farmlot
No. 46 from where they were ejected and dispossessed, so much so that even if
Farmlot No. 106 was removed by the Court of Appeals from the judgment, as Farmlot
No. 46 was harvesting palay worth at least P33,000.00 per year since 1989, private
respondents, who are entitled to the possession and peaceful enjoyment of the farmlot
as provided for in Section 23 of the Agrarian Reform Law, should be compensated for
the lost income by the petitioners who are solidarily liable with Olympio Mendoza and
Severino Aguinaldo. 11
We find for the private respondents.
It is clear that petitioners are asking Us to re-examine all the evidence already
presented and evaluated by the trial court and re-evaluated again by the respondent
appellate court. Said evidence served as basis in arriving at the trial court and appellate
court's findings of fact. We shall not analyze such evidence all over again but instead
put finis to the factual findings in this case. Settled is the rule that only questions of law
may be raised in a petition for review on certiorari under Rule 45 of the Rules of
Court 12 absent the exceptions which do not obtain in the instant case. 13
We agree with the appellate court in its retiocination, which We adopt, on why it has to
dismiss the appeal. Said the Court:
In her Complaint, plaintiff-appellee alleged that she "is the tenant of
Farm Lots Nos. 46 and 106 Block 2, Psd-38453 of the Bahay Pare
Estate, Bahay Pare, Candaba, Pampanga, with a total area of 23,969
square meters, more or less . . ." (Complaint, Record, vol. 1, p.1).
However, during Violeta's testimony, she clarified that actually only
Lot No. 106, which contains an area of P19,000 square meters, is
not included in this controversy (T.S.N., August 10, 1989, p. 5; May
8, 1989, p. 12). This statement was corroborated by plaintiff's
counsel, Atty. Arturo Rivera, who informed the court that the 19,000
square meter lot is subject of a pending case before the MTC of Sta.
Ana, Pampanga (Ibid., p. 15). The inconsistency between the
averment of the complaint and the testimony of the witness should
not only because there was no showing that she intended to mislead
defendants and even the trial court on the subject matter of the suit.
It would in the complaint since together with Lot 106 had been include
in the complaint since together with Lot 46, it is owned by Olympio's
father.
We also concur with the trial court's finding on the participation of the
other appellants in the dispossession of appellee. They not only
knew Olympio personally, some of them were even asked by
Olympio to help him cultivate the land, thus lending credence to the
allegation that defendant Olympio, together with his co-defendants,
prevented plaintiff and her workers from entering the land through
"strong arm methods". (Decision of RTC, records, vol. II p. 564).
Finally, we rule that the trial court did not err when it favorably
considered the affidavits of Eufrocina and Efren Tecson (Annexes
"B" and "C") although the affiants were not presented and subjected
to cross-examination. Section 16 of P.D. No. 946 provides that the
"Rules of Court shall not be applicable in agrarian cases even in a
suppletory character." The same provision states that "In the hearing,
 investigation and determination of any question or controversy,
affidavits and counter-affidavits may be allowed and are admissible
in evidence".
Moreover, in agrarian cases, the quantum of evidence required is no
more than substantial evidence. This substantial evidence rule was
incorporated in section 18, P.D. No. 946 which took effect on June
17, 1976 (Castro vs. CS, G.R. No. 34613, January 26, 1989). In
Bagsican vs. Hon. Court of Appeals, 141 SCRA 226, the Supreme
Court defined what substantial evidence is:
Substantial evidence does not necessarily import
preponderant evidence, as is required in an
ordinary civil case. It has been defined to be such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion and
its absence is not shown by stressing that there is
contrary evidence on record, direct or
circumstantial, for the appellate court cannot
substitute its own judgment or criteria for that of
the trial court in determining wherein lies the
weight of evidence or what evidence is entitled to
belief.14
WHEREFORE, finding no reversible error in the decision appealed from, the petition is
hereby DENIED for lack of merit. The decision of the Court of Appeals promulgated on
November 22, 1990 is AFFIRMED in toto. Costs against the petitioners.
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado, Nocon and Campos, JJ., concur.
G.R. No. 109149 December 21, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEONCIO SANTOCILDES, JR. y SIGA-AN, accused-appellant.
QUISUMBING, J.:
Where an accused was not duly represented by a member of the Philippine Bar during
trial, the judgment should be set aside and the case remanded to the trial court for a
new trial. A person who misrepresents himself as a lawyer shall be held liable for
indirect contempt of court.
Subject of the present appeal is the decision dated October 29, 1992, of the Regional
Trial Court of Iloilo City, Branch 33, convicting accused-appellant of the crime of rape,
sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the
offended party the amount of P50,000.00 and to pay the costs.
The antecedent facts of the case are as follows:
On February 17, 1992, appellant was charged with the crime of rape 1 of a girl less than
nine (9) years old, committed on December 28, 1991, in the town of Barangay San Luis,
San Joaquin, Iloilo.
Upon arraignment, appellant entered a plea of not guilty. Trial ensued and the
prosecution presented as its witnesses the victim, her mother, her six (6) year-old
playmate, and the medico-legal officer who examined the victim.
For the defense, appellant presented one German Toriales and himself. Appellant
denied committing the rape and claimed that he merely tried to stop the two girls, the
victim and her playmate, from quarreling.
On October 29, 1992, the trial court rendered a decision 2 finding appellant guilty as
charged. The dispositive portion of the decision states:
WHEREFORE, the Court finds the accused guilty beyond
reasonable doubt of the crime of rape and sentences him to suffer
the penalty of reclusion perpetua together its accessory penalty. The
accused is ordered to pay the amount of P50,000.00 to the
complainant and another amount for costs, without subsidiary
penalty in case of failure to pay the civil liability and the cost.
If qualified under Art. 29 of the Revised Penal Code, as amended by
R.A. 6127, as amended, and he has agreed in writing to abide by the
same rules imposed upon convicted prisoners, he shall be credited
with the full duration of his preventive imprisonment; otherwise, he
shall only be credited with 4/5 of the same.
SO ORDERED.
Hence, appellant duly filed a Notice of Appeal. 3 In his brief, 4 appellant made the
following assignment of errors:
I. THE HONORABLE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN FINDING THAT THE ACCUSED IS GUILTY OF RAPE
INSPITE OF CONFLICTING TESTIMONIES OF THE PRIVATE
COMPLAINANT AND HER WITNESSES ON MATERIAL POINTS.
II. THAT THE ACCUSED-APPELLANT WAS DEPRIVED THOUGH
NO FAULT OF HIS OWN TO BE DEFENDED BY A PERSON
AUTHORIZED TO PRACTICE LAW AMOUNTING TO DENIAL OF
DUE PROCESS.
Considering the importance of the constitutional right to counsel, we shall now first
resolve the issue of proper representation by a member of the bar raised by appellant.
Appellant contends that he was represented during trial by a person named Gualberto
C. Ompong, who for all intents and purposes acted as his counsel and even conducted
the direct examination and cross-examinations of the witnesses. On appeal, however,
appellant secured the services of a new lawyer, Atty. Igmedio S. Prado, Jr., who
discovered that Gualberto C. Ompong is actually not a member of the bar. Further
verification with the Office of the Bar Confidant confirmed this fact. 5 Appellant therefore
argues that his deprivation of the right to counsel should necessarily result in his
acquittal of the crime charged.
The Office of the Solicitor General, on the other hand, maintains that notwithstanding
the fact that appellant's counsel during trial was not a member of the bar, appellant was
afforded due process since he has been given an opportunity to be heard and the
records reveal that said person "presented the evidence for the defense with the ability
of a seasoned lawyer and in general handled the case of appellant in a professional
and skillful manner." However, the right of the accused to be heard by himself and his
counsel, in our view, goes much deeper than the question of ability or skill. It lies at the
heart of our adversarial system of justice. Where the interplay of basic rights of the
individual may collide with the awesome forces of the state, we need a professional
learned in the law as well as ethically committed to defend the accused by all means
fair and reasonable.
On the matter of proper representation by a member of the bar, we had occasion to
resolve a similar issue in the case of Delgado v. Court of Appeals. 6 In Delgado,
petitioner and two others were convicted by the trial court of the crime of estafa thru
falsification of public and/or official documents. One accused did not appeal. Petitioner
Delgado and her remaining co-accused appealed to the Court of Appeals, which
affirmed petitioner's conviction but acquitted her co-accused. After entry of judgment,
petitioner discovered that her lawyer was not a member of the bar and moved to set
aside the entry of judgment. The Court of Appeals denied petitioner's motion, hence,
she filed a petition for certiorari with this Court. The Court set aside the assailed
judgment and remanded the case to the trial court for a new trial, explaining that —
This is so because an accused person is entitled to be represented
by a member of the bar in a criminal case filed against her before the
Regional Trial Court. Unless she is represented by a lawyer, there is
great danger that any defense presented in her behalf will be
inadequate considering the legal perquisites and skills needed in the
court proceedings. This would certainly be a denial of due process. 7
Indeed, the right to counsel is of such primordial importance that even if an accused
was represented by three successive counsels from the Public Attorney's Office, the
Court has ordered the remand of a rape case when it found that accused was given
mere perfunctory representation by aforesaid counsels such that appellant was not
properly and effectively accorded the right to counsel. In the recent en banc case
of People v. Bermas, G.R. No. 120420, April 21, 1999, the Court, speaking through
Justice Vitug, admonished three (3) PAO lawyers for failing to genuinely protect the
interests of the accused and for having fallen much too short of their responsibility as
officers of the court and as members of the Bar. Verily, we can do no less where the
accused was not even duly represented by a certified member of the Philippine Bar, no
matter how zealous his representation might have been.
The presence and participation of counsel in criminal proceedings should never be
taken lightly. 8 Even the most intelligent or educated man may have no skill in the
science of the law, particularly in the rules of procedure, and, without counsel, he may
be convicted not because he is guilty but because he does not know how to establish
his innocence. 9 The right of an accused to counsel is guaranteed to minimize the
imbalance in the adversarial system where the accused is pitted against the awesome
prosecutory machinery of the State. 10 Such a right proceeds from the fundamental
principle of due process which basically means that a person must be heard before
being condemned. The due process requirement is a part of a person's basic rights; it
is not a mere formality that may be dispensed with or performed perfunctorily. 11
The right to counsel of an accused is enshrined in no less than Article III, Sections 12
and 14 (2) of the 1987 Constitution. This constitutional mandate is reflected in Section
1 of Rule 115 of the 1985 Rules of Criminal Procedure which declares the right of the
accused at the trial to be present in person and by counsel at every stage of the
proceedings from the arraignment to the promulgation of judgment. In turn, Section 5
of Article VIII of the 1987 Constitution vests the power to promulgate rules concerning
the admission to the practice of law to the Supreme Court. Section 1 of Rule 138 of the
Rules of Court explicitly states who are entitled to practice law in the Philippines, and
Section 2 thereof clearly provides for the requirements for all applicants for admission
to the bar. Jurisprudence has also held that "the right to practice law is not a natural or
constitutional right but is in the nature of a privilege or franchise. It is limited to persons
of good moral character with special qualifications duly ascertained and certified. The
right does not only presuppose in its possessor integrity, legal standing and attainment,
but also the exercise of a special privilege, highly personal and partaking of the nature
of a public
trust." 12 Indeed, so strict is the regulation of the practice of law that
in Beltran, Jr. v. Abad, 13 a Bar candidate who has already successfully hurdled the Bar
examinations but has not yet taken his oath and signed the roll of attorneys, and who
was caught in the unauthorized practice of law was held in contempt of court. Under
Section 3 (e) of Rule 71 of the Rules of Court, a person who undertakes the
unauthorized practice of law is liable for indirect contempt of court for assuming to be
an attorney and acting as such without authority.
WHEREFORE, the assailed judgment is SET ASIDE, and the case is hereby
REMANDED to the trial court for new trial.
With respect to the unauthorized practice of law by the person named Gualberto C.
Ompong in connection with this case, the local Chapter of the Integrated Bar of the
Philippines of Iloilo City is DIRECTED to conduct a prompt and thorough investigation
regarding this matter and to report its recommendations to the Court within ninety (90)
days from notice of this, order. Let all concerned parties, including the Office of the Bar
Confidant, be each furnished a copy of this Decision for their appropriate action.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
G.R. No. 95026 October 4, 1991
SPOUSES PEDRO and ANGELINA TELAN, petitioner,
vs.
COURT OF APPEALS, ROBERTO TELAN, and SPOUSES VICENTE and VIRGINIA
TELAN, respondent.
Peter Donnely A. Barot for petitioners.
Monsanto Law Office for private respondent.
SARMIENTO, J.:
This is a petition for review of the Resolution dated December 28, 1989 of the Court of
Appeals 1 which considered the appeal of the herein petitioner, spouses Pedro and
Angelina Telan (hereinafter PEDRO and ANGELINA), ABANDONED and DISMISSED,
for their failure to file an appeal brief within the reglementary period, pursuant to Section
I(f), Rule 50 of the Rules of the Court.
The only issue involved in this petition for review on certiorari is:
Whether or not the representation of the petitioner by a fake lawyer amounts to a
deprivation of his right to counsel and hence a lack of due process.
The circumstances under which the case arose are as follows:
The petitioner PEDRO is a retired government employee and high school graduate who
settled in 1973 on a property abutting the national highway in Guibang, Gamu, Isabela.
In 1977, when the government needed the land, PEDRO was compelled to transfer his
residence to the other side of the national highway on a lot owned by Luciano Sia where
he rented 750 square meters for P50.00 a month. Because the lot was en route to the
shrine of Our Lady of Guibang which was frequented by pilgrims, PEDRO set up
business enterprises such as a vulcanizing shop and an eatery. Shortly thereafter, his
cousins, the herein private respondents Roberto Telan and Spouses Vicente and
virginia Telan (hereinafter ROBERTO, VICENTE, and VIRGINIA), followed suit by
setting up their own eatery within the same lot. On March 27, 1984, PEDRO and his
spouses ANGELINA received a Notice to Vacate from the Development Bank of the
Philippine (DBP). This was followed by a letter from VIRGINIA herself, reiterating the
said demand. Apparently VICENTE and VIRGINIA had executed a Deed of Sale with
Assumption of Mortgage with Sia over the said lot shared by PEDRO and ANGELINA.
Soon, DBP as the mortgagee of Sia's lot, foreclosed the mortgage.
On June 7, 1984, the DBP and the Spouses VICENTE and VIRGINIA TELAN filed a
suit at the Regional Trial Court of Ilagan, Isabela to evict PEDRO TELAN's family from
the lot. The case was dismissed. Meanwhile, on September 22, 1986, ROBERTO
TELAN was able to secure a Certificate of Title in his name over the contested lot. With
the new Transfer Certificate of Title, ROBERTO and the spouses VICENTE and
VIRGINIA filed a complaint denominated as Accion Publiciana against the petitioners,
Spouses PEDRO and ANGELINA. At this point, PEDRO and ANGELINA hired the
services of Atty. Antonio Paguiran to defend them in the suit. 8
On October 27, 1988, the lower court awarded the possession of the property in
question to ROBERTO and Souses VICENTE and VIRGINIA TELAN.
PEDRO and ANGELINA informed Atty. Paguiran that they wanted to appeal the case,
but since Atty. Paguiran was disposed not to do so, PEDRO and ANGELINA asked
another person to sign for them. 9
In the course of their eatery business, petitioner ANGELINA TELAN became
acquainted with Ernesto Palma who represented himself to be a "lawyer." Having no
counsel to assist them in their appeal, Angelina asked "Atty. Palma" to handle their
case. he cosented and the petitioners paid his "lawyer's fees."
In the meantime, on August 5, 1988, PEDRO TELAN broke his hip while he was getting
off from a passenger jeepney. On September 5, 1988, unable to withstand the pain, he
went to the Philippine General Hospital for treatment where he was diagnosed to have
a "fractured, closed, complete, femoral neck garden type IV (R) femur." 11 On the spot,
the doctors recommended an operation.
Another operation followed on September 22, 1988. All the while, from September 5,
1988 up to October 2, 1988, PEDRO was confined a the PGH. He had to go back to
PGH several times for check-up even after was released from the hospital.
It was only by January 1990 that PEDRO managed to walk again although still with
much difficulty.
Meanwhile, on December 28, 1989, the Court of Appeals issued a Resolution which
considered the appeal interposed by petitioners as abandoned and dismissed "for
failure ... to file an appeal brief within the reglementary period, pursuant to Section 1
(f), Rule 50 of the Rules of Court. 13
The petitioners were not aware of the dismissal of their appeal. They only came to know
about it on May 1990, when somebody in the Isabela Provincial Capitol at Ilagan
informed PEDRO TELAN immediately verified the facts. "Atty. Palma" could no longer
be found. PEDRO in verifying the existence of "Atty. Palma" in the Roll of Attorneys
with the Bar Confidant's Office. This was followed by the filing of Criminal Case No.
389-90 for Estafa against "Atty. Palma." 15 By now PEDRO had realized that "Atty.
Palma" was a fake.
The Court of Appeals in its Resolution dated August 27, 1990 ruled as follows:
xxx xxx xxx
It should be recalled that the instant appeal was dismissed only on December 28, 1989
(p. 13 rollo). Prior thereto, appellant's counsel received on July 25, 1989 this Court's
letter-notice dated July 14, 1989 requiring him to file the appellants' brief within forty-
five (45) days from receipt thereof. Per report dated October 185, 1989 of the brief, non
has yet been filed as of said date and hence, this Court issued a Resolution dated
October 20, 1989 for appellants to show cause, within ten (10) days, why the appeal
should not be dismissed for failure to file the appellants' brief within the reglementary
period. Hence from July 25, 1989 when appellants' counsel received this Court's letter-
notice to file brief until the JRD's report on December 15, 1989 that no appellant's brief
has been filed, a period of about four (4) months and twenty-three (23) days have
elapsed, thus giving appellants enough to time to file their brief. Unfortunately, no
appellants' brief was ever filed during said period. Let it be stressed that the rules
prescribing the time within which certain acts must be done or certain proceedings
taken are absolutely indispensable to the prevention of needless delay and the orderly
and speedy discharge of judicial business. (FJR Garment Industries v. CA, 130 SCRA
216, 218). 16
On January 24, 1990, the Resolution dated December 28, 1989 became final and was
entered on May 24, 1990 in the Book of Entries of Judgment.
On September 12, 1990, the presiding judge of the lower court issue the Writ of
Demolition for the enforcement of the decision. 17
The Petition for Review on certiorari before this Court was filed on October 18, 1990 by
the spouses PEDRO and ANGELINA TELAN with an Urgent Prayer for Temporary
Restraining Order/Preliminary Injunction. 18
On October 24, 1990, after deliberating on the petition for review on certiorari, the Court
without giving due course required the respondents to COMMENT within ten (10) days
form notice thereof. At the same time, as prayed for, effective "immediately" and
"continuing until further orders from this Court", a TEMPORARY RESTRAINING
ORDER was issued enjoining the respondents from enforcing the Order dated
September 12, 1990 issued in Civil Case No. 279.
In due time, after the filing of the necessary pleadings, the petition was given due
course and the parties were ordered to submit simultaneously their respective
memoranda. The petitioners filed their memorandum while the private respondents
manifested to adopt their Comments dated November 5, 1990. However, after the filing
of the petitioners' memorandum, the private respondents filed on June 10, 1991, a
pleading they denominated as Addendum. Apparently, changing their minds, on July
23, 1991, the private respondents filed their memorandum.
We rule for the petitioners. We hold that they had not been accorded due process of
law because they lost their to appeal when deprived of the right to counsel.
Article III, Section 2 of the Constitutional provides:
xxx xxx xxx
No person shall be deprived of life, or property, without due process of law, nor shall
any person be denied the equal protection of the law.
The right to counsel in civil cases exists just as forcefully as in criminal cases, 19
specially so when as a consequence, life, liberty, or property is subjected to restraint or
in danger of loss.
In criminal cases, the right of an accused person to be assisted by a member of the bar
is immutable. Otherwise, there would be a grave denial of due process. Thus, even if
the judgment had become final and executory, it may still be recalled, and the accused
afforded the opportunity to be heard by himself and counsel. 20
There is no reason why the rule in criminal cases has to be different from that in civil
cases. The preeminent right to due process of law applies not only to life and liberty but
also to property. There can be no fair hearing unless a party, who is in danger of losing
his house in which he and his family live and in which he has established a modest
means of livelihood, is given the right to be heard by himself and counsel.
Even the most experienced lawyers ge tangled in the web of procedure. To demand as
much form ordinary citizens whose only compelle intrare is their sense of right would
turn the legal system into a intimidating monstrosity where an individual may be stripped
of his property rights not because he has no right to the property but because he does
not know how to establish such right.
The right to counsel is absolute and may be invoked at all times. More so, in the case
of an on-going litigation, it is a right that must be exercised at every step of the way,
with the lawyer faithfully keeping his client company.
No arrangement or interpretation of law could be as absurd as the position that the right
to counsel exists only in the trial courts and that thereafter, the right ceases in the
pursuit of the appeal.
This is the reason why under ordinary circumstances, a lawyer can not simply refuse
anyone the counsel that only the exercise of his office can impart. 21

Curiously, the counsel of the private respondents, ROBERTO TELAN and spouses
VICENTE and VIRGINIA, would still insist that the petitioners, spouses PEDRO and
ANGELINA TELAN, had lost their right to appeal because of the negligence of their
counsel, referring to "Atty. Palma."
A client is generally bound by the action of his counsel in the management of a litigation
even by the attorney's mistake or negligence in procedural technique. 22 But how can
there be negligence by the counsel in the case at bar when the "lawyer", "Atty. Palma,"
turned out to be fake? The Affidavit of the petitioner PEDRO TELAN, the sworn Petition,
the Certifications of the Bar Confidant's Office and the Integrated Bar of the Philippines,
and the submitted records of Criminal Case No. 389-90 more than sufficiently establish
the existence of an Ernesto Palma who misrepresented himself as a lawyer. 23
WHEREFORE, the Petitioner is GRANTED; the proceedings in CA-G.R CV No. 20786
are hereby REINSTATED and the respondent Court of Appeals is ordered to give DUE
COURSE to the appeal and to decide the same on the merits.
SO ORDERED.
Melencio-Herrera (Chairman), Paras, Padilla and Regalado, JJ., concur.
G.R. No. L-67422-24 October 31, 1984
FERNANDO VALDEZ alias WILSON VALDEZ, petitioner,
vs.
HONORABLE JUDGE GREGORIO U. AQUILIZAN, Presiding Judge of the
Regional Trial Court, 12th Judicial Region, Branch XVI, Kabacan, North
Cotabato, respondents.
ABAD SANTOS, J.:
This is a petition for certiorari which was posted on March 22, 1984, in Cotabato City
by speed airmail but was received only on April 26, 1984. The petitioner is accused of
rape in three cases — Criminal Case Nos. 13, 14 and 15 — filed in the court presided
by the respondent judge. The private complainant is the same in all the three cases
but the rapes were alleged to have been committed on different dates, namely:
February 10, 1982, March 17, 1982 and April 10, 1982.
The petition seeks to annul the proceedings which were conducted by the respondent
judge and to disqualify him from the case. Because the verified petition imputed
serious irregularities to the respondent judge, this Court issued a temporary
restraining order on May 21, 1984, restraining him from further proceeding with
Criminal Case Nos. 13, 14 and 15.
In the comment which the respondent judge was required to submit, he said that he
had already decided the three cases. (Petitioner Wilson Valdez was convicted of rape
in each of the three cases and was sentenced to three reclusion perpetua plus
indemnity.) The decision is dated April 2, 1984, but the petitioner claims that it was
promulgated on May 3, 1984, without the presence of his counsel and even of the
Fiscal; that no notice was issued in respect of the promulgation; and that no copy of
the decision was given to the defense counsel of record.
The case was set for hearing on August 6, 1984, and thereafter the Court issued a
resolution which reads:
At the hearing this morning the following appeared: Attys. Jose V. Juan and
Antonio T. Nicolas of the Special Appealed Cases Division, Citizens' Legal
Assistance Office, Ministry of Justice, Padre Faura, Manila, for the petitioner;
respondent Judge Gregorio U. Aquilizan on his own behalf; and North
Cotabato Provincial Fiscal Aquiles Narajos who brought the record of
Criminal Case Nos. 13, 14 and 15 in the sala of the respondent judge.
Counsels for the petitioner mentioned several irregularities said to have been
committed by the respondent judge in the handling of the case above-
mentioned. Resort to the record proved to be fruitless because it was grossly
deficient.
Counsels for the petitioner are hereby given ten (10) days from notice hereof
to submit a memorandum specifying the irregularities said to have been
committed by the respondent judge with supporting evidence. A copy of the
memorandum shall be furnished to the respondent judge who is required to
answer the same point by point within ten (10) days from receipt. (Rollo, p.
127.)
The memoranda are now before this Court and the immediate reaction is that the
petition is highly impressed with merit.
In the hearing of the three criminal cases on May 26, 1983, the private complainant
was to be cross- examined inasmuch as her direct examination had been finished at
the previous hearing on April 7, 1983. On May 26, the private prosecutor, Atty.
Norberto Ela, was absent. Thereafter, the respondent judge stated: "It appears in the
records that the complaining witness is still under cross. It is the Honorable Judge
who is examining her ... (Addressing the witness) During the last hearing of this case,
the Honorable Court reserved its right to cross examine you on your testimony." And
the respondent judge examined the witness but the examination is better described
as direct rather than cross. Witness the following:
COURT: ... After going over the records of the cases and
the supposed exhibits, you mentioned about a pair of
scissors used to intimidate you, coerced and forced by the
accused, by pressing the same at your left side?
A. Yes, your Honor.
COURT: Proceed Fiscal.
FISCAL FULVADORA:
Q You mentioned about a pair of scissors used by the
accused. Showing to you this scissors, what relation is this
scissors which was used by the accused in threatening
you on February 10, 1982?
A Yes, sir, this is the one being used by him.
COURT:
Q Is this the very scissors that you saw when he pressed
it?
A Yes, your Honor.
Q When was this used by the accused Wilson Valdez?
A On February 10, 1982, your Honor.
FISCAL FULVADORA:
May we request that this scissors Identified by the witness
be marked as Exh. "F", your Honor.
COURT:
Mark it.
Q Please demonstrate to the Court how this Exh. "F" was
used by the accused in intimidating you?
A (Witness demonstrating to the Court)
The witness demonstrating to the supposed victim the
pressing of the pointed scissors at the left side abdomen.
Q Did he also use that during the accord rape he
committed
A Yes your Honor.
Q About the third time, he use also?
A Yes your Honor. (TSN, May 26, 1983.)
To be sure a trial judge has the right, nay even the duty, to address questions to
witnesses. But the questions should be clarificatory; they should not build the case for
any of the adversaries.
On June 23, 1983, a hearing was scheduled. The transcript for that day shows that
Fiscal Camilo Fulvadora appeared for the prosecution but private prosecutor Ela, was
absent. Also absent was Atty. Jorge Zerrudo, counsel for the accused. The transcript
does not show whether or not the accused was brought to court. Notwithstanding the
absence of counsel for the accused and probably the accused himself, the
respondent judge continued his "cross-examination" of the private complainant. The
respondent judge explained his behaviour thus:
WHEREFORE, premises considered, in view of the absence of
Atty. Zerrudo who in spite of due notice in open court, during the
last hearing of this case and without justifiable reason failed to
appear, however, for the sake of justice in order not to prejudice the
right of the accused as the complaining witness was on cross-
examination, stated the witness is being cross examined by the
court in order to get an illustration of certain facts needed by all
defense here or the prosecution of the accused Wilson Valdez alias
Willy. (TSN, June 23, 1983.)
In his memorandum the respondent judge claims that he "did not proceed with the
trial but merely sought clarifications on vital aspects taken up in the hearing of April 7,
1983."
The explanation of the respondent judge is belied by the transcript which shows that
he asked the private complainant searching questions and this is reflected on pages 4
to 12 of the transcript.
The statement of the respondent judge that he wanted to protect the right of the
accused to a speedy trial is not appreciated. He "protected" the rights of the accused
by holding a trial in the absence of the latter's counsel. If an accused has a "protector"
like the respondent judge, there is no need for a fiscal or a private prosecutor. It may
not be amiss to state in this connection that the accused did not complain of delay in
the trial of his case probably because he was not there. At any rate if the respondent
judge had wanted to expedite the trial he should have appointed a temporary counsel
for the accused.
The hearing on the three cases was resumed on August 18, 1983. In the meantime,
Atty. Zerrudo was replaced by Atty. Julian Ruiz as counsel for the accused because
he wanted an Ilocano lawyer to represent him for better communication. On that day.
the private complainant was still on cross-examination. Without any request from the
parties, the respondent judge decided to hold the hearing in his chamber "due to
delicadeza." Present in the chamber were counsel for the accused, the fiscal and the
stenographer only; the accused was not allowed to go inside.
The respondent judge claims, however, "that the accused together
with his guard were at the door of a make-shift room, so-called
judge's chamber." This might well have been the case but the
accused was entitled as of right to be inside the room because it
was his liberty and honor which were at stake. On August 31, 1983,
the respondent judge announced, "We will hear this in chamber."
And then the following took place:
ATTY. RUIZ:
Now, last time this case was presented and was
scheduled for hearing inside the chamber. Counsel for the
accused requested that the accused be given chance to
confront the complaining witness but this, your honor was
denied so at this instance it is reiterated that the accused
be given again a chance to be present during the
investigation (sic).
COURT:
Fiscal.
FISCAL CAMILO FULVADORA:
With the sound discretion of the
Honorable Court.
COURT:
Denied. (TSN, August 31,1983.)
On February 7, 1984, the following took
place:
ATTY. RUIZ:
Your honor, we are still in the process of direct
examination for the accused. We are recalling the accused
in the witness stand. I understand your honor last time,
due to lack of material time, we requested for a resetting of
these three cases inasmuch as the matter whether to give
the accused for the meantime your honor, I am petitioning
that he must be recalled and placed in the witness stand.
COURT:
It is discretionary on the part of the
Judge. What can you say Fiscal?
FISCAL FULVADORA:
I remembered right that it is the purpose for the trial, that
the manifestation of the defense counsel that he is through
with the testimony of the witness, he requested that the
prosecution will be continued in some other time.
ATTY. RUIZ:
We concur with the Provincial Fiscal but prior, we are
petitioning the Honorable Court to recall the witness for
further direct examination and I am requesting that will
have to continue the proceeding. We are convinced with
the observation of the Court that it is discretionary of the
Honorable Court but this representation however, we
would like to request and reiterate and manifest for the
petition that he be recalled. It is not the intention of the
defense counsel, your honor, to delay the speedy
termination of these cases. As a counsel for the accused, I
would like to reiterate that the accused be recalled to the
witness stand.
FISCAL FULVADORA:
The Honorable Court will decide on that part of
presentation of the accused, whether to grant it or not the
manifestation.
COURT:
How many questions are you asking?
ATTY. RUIZ:
Due to lack of material time, the three cases, I forgot to
ask few questions regarding the evidences or exhibits
which are the panty, knife, and scissors, in the direct
examination in that, it was overlooked in the part of this
representation that the three after presented some of the
exhibits per prosecution, were not questioned.
FISCAL FULVADORA:
It is not the matter of forgotting the exhibits of the counsel,
there are time given to present this trial. I remembered that
he propounded few questions for the defense and he
manifested that he is through in his direct examination and
it is my time to cross the testimony of the accused.
 ATTY. RUIZ:
I forgot, before the Honorable Court that this
representation have reasons of overlooking why I was not
able to question to all the matters considering of the lack
of material time and that there are other cases waiting
which are ready for the hearing. It is the discretionary on
the part of the Honorable Court specially that the criminal
penalty is death and while the Provincial Fiscal having
further presentation of exhibits at the beginning of the
case, where the questioning we were already finished, yet
the Provincial Fiscal continued separately to the
presentation of other cases.
COURT':
Denied.
Under cross. (TSN Feb. 7, 1984.)
It is obvious from the foregoing that the respondent judge did not manifest the
requisite cold impartiality which the petitioner deserved.
The petition which questions the actuations of the respondent judge and seeks his
disqualification was received by him on March 29, 1984. Prudence dictated that he
refrain from deciding the cases or at the very least to hold in abeyance the
promulgation of his decision pending action by this Court. But prudence gave way to
imprudence; the respondent judge acted precipitately by deciding the cases on April
2, 1984, and promulgating his decision on May 3 of the same year. All of the acts of
the respondent judge manifest grave abuse of discretion on his part amounting to lack
of jurisdiction which substantively prejudiced the petitioner.
WHEREFORE, the petition is hereby granted. The decision in Criminal Case Nos. 13,
14 and 15 of the respondent judge is set aside; the aforesaid cases shall be
transferred to Branch XVII of the Regional Trial Court in Kidapawan for trial de
novo which shall also resolve the petitioner's motion for release on recognizance
under Sec. 191 of P.D. No. 603. No costs.
SO ORDERED.
Makasiar (Chairman), Concepcion, Jr., Guerrero, Escolin and Cuevas, JJ., concur.
Aquino, J., took no part.
G.R. No. L-6513 December 15, 1911
FAUSTINO LICHAUCO, in his own name and in behalf of his coheirs, Eugenia,
Clara, Luisa, Crisanto, Zacarias, Galo and Timotea Lichauso, plaintiffs-appellants,
vs.
ANA ALEJANDRINO and her husband W. WEINMANN, defendant-appellees.
Ramon Salinas, for appellants.
No appearance for appellees.
JOHNSON, J.:
On the 16th of July, 1908, the plaintiffs commenced an action against the defendants,
in the Court of First Instance of Pampanga, for the purpose of recovering the sum of
P1,657.75, with interest at 12 per cent from the said 16th of July, 1908.
To this complaint the defendants demurred, which demurrer was, on the 23d of
November, 1908, sustained by the Hon. Julio Llorente, judge. On the same day (the
23d of November, 1908) the plaintiffs filed an amended complaint against the
defendants.itc@alf The complaint was accompanied by Exhibit A, B, C, and
D.1awphil.net
Later the defendants presented a demurrer which was overruled. On the 2d of July,
1909, the defendants presented a general and special answer, in which they prayed to
be relieved from all liability under the complaint, with costs against the plaintiffs.
After hearing the evidence adduced during the trial of the cause, the Hon. Julio Llorente,
judge, on the 10th of February, 1901, rendered a judgment in favor of the plaintiffs and
against the defendants for the sum of P610.22 Philippine currency, with interest at 6
per cent from the 16th of July, 1908, with the provision that if the defendants failed to
pay the said amount, the plaintiffs were entitled to sell at public auction one-sixth part
of the land mortgaged under and by virtue of a contract between Mariano Alejandrino
and Cornelia Laochangco, dated the 30th of July, 1886. (See Exhibit A.) Mariano
Alejandrino was the father of the defendant, Ana Alejandrino, and Cornelia Laochangco
as the mother of the plaintiffs. Mariano Alejandrino and Cornelia Laochangco are both
dead.
From the judgment of the lower court the plaintiffs appealed.
From an examination of the record, the following facts seem to be true:
First. That on the 30th of July, 1886, the said Mariano Alejandrino borrowed from the
said Cornelia Laochangco the sum of P6,000 Mex., under certain conditions mentioned
in the said contract. (See Exhibit A.)
Second. That on the 15th of August, 1895, the said Mariano Alejandrino and Cornelia
Laochangco liquidated the amount due under the said contract, Exhibit A, and it was
found on the date that there was still due under the said contract the sum of P4,115.75.
On the same day (August 15, 1895) the said Mariano Alejandrino borrowed from
Cornelia Laochangco the additional sum of P234.25, making a total amount due of
4,350 pesos Mex. (Exhibit B.)
Third. That on the 15th of December, 1906, all of the children of the said Mariano
Alejandrino, except the defendant herein, Ana Alejandrino, entered into a contract, by
the terms of which they obligated themselves to pay to the plaintiffs the balance due
from their father, Mariano Alejandrino. (See Exhibit D.)
Fifth. That on the 23d of April, 1898, the amount due on the said contract of July 30,
1886, was again liquidated and it was found that there was remaining due and unpaid
on the said contract, the sum of P4,465. (See Exhibit C.)
Under the provisions of Exhibit D (the contract which was entered into by all of the heirs
of Mariano Alejandrino, except the defendant herein, Ana Alejandrino), they obligated
themselves to pay their proportional amount of the indebtedness of their father, together
with 12 per cent interest. The plaintiffs claim that the amount due on the contract of July
30, 1886, at the time of the commencement of the present action (the 15th of July,
1908), together with the interest amounted to the sum of P9,946.50, and that the
defendant herein, Ana Alejandrino, was liable for one-sixth part of said sum, or the sum
of P1,657.75.
The defendant, Ana Alejandrino, was not a party to the contract represented by Exhibit
D. she did not agree to pay 12 per cent interest on the amount remaining due on the
23rd of April, 1898, of the debt between her father and the plaintiffs herein. There is no
proof in the record that any demand was ever made upon her for the payment of her
aliquot part of the balance found to be due on the 23rd of April, 1898, either judicially
or extrajudicially. She was, therefore, not liable to pay interest or her aliquot part of the
said amount. The lower court correctly held, however, that she was liable for the
payment of one-sixth part of said amount by virtue of her having accepted her
proportional part of the property involved and covered by the original contract between
her father and the mother of the plaintiffs, bearing date of July 30, 1886, or for the sum
of 744.16 pesos Mex., which, reduced to conant, amounted to P610.22, the amount for
which the lower court rendered judgment, with 6 per cent from the 16th of July, 1908.
While we have not discussed the assignments of error in detail, we believe that we
have answered each of them in effect. We have discussed the question upon their
merits as they are presented in the record. There is a question of parties, however,
which has not been presented, which we can not overlook.
It will be noted that Faustino Lichauco has brought this action for himself and in
representation of his co-heirs. So far as the record shows, the co-heirs have no
knowledge of the pendency of the action. Faustino Lichauco shows no authority for
representing his co-heirs except the mere allegation in the title of his complaint. He
speaks of himself as the plaintiff. The attorney signs himself as attorney for the plaintiff
— not for the plaintiffs. Faustino Lichauco represents himself and his co-heirs, and the
attorney-at-law, who signs the complaint, represents as he alleges "the plaintiff." There
is nothing in the record which shows that the co-heirs are not capable of representing
themselves. There is nothing in the record which shows that they ever gave their
consent to the commencement of the present action. It may be assumed that they did,
but this not sufficient. The Code of Procedure in Civil Actions provides that in Courts of
First Instance a party may conduct his litigation personally or by the aid of a lawyer,
and his appearance must be either personal or by the aid of a duly authorized member
of the bar. (Sec. 34, Act No. 190.) In the present case the co-heirs are neither in court
personally nor by the a duly authorized member of the bar. Therefore they are not in
court at all, and any judgment which we might render in the present case, with reference
to the heirs, either pro or con, would in no way be binding upon them. (Espiritu vs.
Crossfield and Vicente Guasch, No. 5313). 1
The present case seems to have been tried in the lower court upon the theory that all
of the interested parties were present, and for that reason we have discussed the case
upon its merits, believing that the parties would deem further litigation unnecessary,
once being informed of the views of this court upon the facts presented. This
assumption, however, is based upon the ground that even though the co-heirs had
been represented in the trial of the cause, in accordance with law, no other or different
evidence would have been adduced.
Therefore, following the decision of this court in the case of Lichauco vs. Limjuco (19
Phil. Rep., 12), the judgment of the lower court is hereby set aside, unless the coheirs
of Faustino Lichauco, within a period of ten days from notification of this decision, shall
appear personally or by attorney in the Court of First Instance of the Province or
Pampanga, either as plaintiffs or defendants, and in writing indicate their full
conformance with the proceedings had in the present cause. In which case, the Court
of First Instance of the Province of Pampanga is hereby directed to enter a judgment
confirming the judgment heretofore rendered by said court on the 10th day of February,
1910.
Mapa, Carson and Moreland, JJ., concur.
G.R. No. 114385 January 29, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EFREN JEREZ, accused-appellant.
ROMERO, J.:
Appellant Efren Jerez, along with Joselito Quijan, Zaldy Victa and Efren Bola (at large),
were charged with the crime of robbery with double homicide in Criminal Case No. 6755
before the Regional Trial Court 1 of Daet, Camarines Norte, Branch 38, under an
information 2 dated October 15, which reads as follows:
That on or about 1:00 o'clock in the afternoon of May 23, 1990 within the Basit
Compound at barangay Sta. Rosa, municipality of Jose Panganiban, province
of Camarines Norte, Philippines, and within the jurisdiction of this Honorable
Court, the above-named (accused) armed with revolvers and bladed weapons
conspiring, confederating together and mutually helping with one another, did
then and there wilfully, unlawfully and feloniously, with intent of gain and by
 means of violence take from REYNALDO OCHOA and JOSELITO Appellant, on the other hand, proferred alibi as his defense and that the extra-judicial
BALBASTRO the following personal properties, to wit: cash money amounting confession was allegedly obtained through the use of physical violence, coercion and
to P45,000.00, two (2) gold plated Seiko 5 wristwatch(es), one (1) golden intimidation.
Horseshoe type ring and one (1) gold plated Ray-ban with the total value of
P52,000.00, Philippine Currency, belonging to said Reynaldo Ochoa and He contended that on the day the incident in question occurred, he was with his
Joselito Balbastro; that on the occasion of said robbery and for the purpose of common law wife, Mercedes Sarical, at the house of a certain Felix Rellolosa from 9:00
enabling the said accused to take, steal and carry away the aforesaid articles, o'clock a.m. to 4:00 o'clock p.m. drinking liquor with some friends.6 He further tried to
the herein accused in pursuance of their conspiracy, did then and there buttress his alibi by declaring that no one saw with as a participant in the slaying nor
wilfully, unlawfully and feloniously, with deliberate intent to kill, with treachery, was any property of the victims recovered from him.
evident premeditation and taking advantage of their superior number and
strength, assault, attack and stab said Reynaldo Ochoa and Joselito
Balbastro, thereby inflicting upon them multiple mortal wounds on the different In a decision dated April 19, 1993, the trial court convicted appellant, the dispositive
parts of their bodies, and as a result thereof, the said Reynaldo Ochoa and portion of which reads:
Joselito Balbastro died instantly, to the damage and prejudice of the heirs of
the victims. WHEREFORE, premises considered and finding accused EFREN JEREZ
guilty beyond reasonable doubt of the crime of robbery with double homicide,
CONTRARY TO LAW. he is hereby sentenced to suffer the penalty of reclusion perpetua and to
indemnify and/or reimburse the heirs of the following:
Upon arraignment, the accused entered a plea of not guilty.
To the Heirs of Reynaldo Ochoa
A concise narration of the factual circumstances that led to appellant's conviction
follows: 1. P 50,000.00 damage for death
2. 100,000.00 loss of earning capacity
(estimated income x life span)
On May 23, 1990, while waiting for passengers near Josie's Restaurant in the 3. 25,000.00 articles/money lost
Municipality of Labo, Camarines Norte, tricycle driver Gil Villafranca was approached (P20,000.00, watch, others)
by a person, later identified as appellant, informing him that he was looking for a 4. 50,000.00 burial and other expenses
carabao buyer. 3 Subsequently, Villafranca accompanied the latter to the house of one —————
Reynaldo Ochoa. When apprised of purpose of the visit, Julian, the son of Reynaldo, P225,000.00
sought his father near Kathleen Pawnshop and advised him about the four carabaos
allegedly for sale at Barangay Teddy, Jose Panganiban, Camarines Norte.4
To the Heirs of Joselito Balbastro
Appellant, together with Reynaldo and another carabao buyer, Joselito Balbastro,
boarded a motorcycle and proceeded to Barangay Teddy to check the condition of the 1. P 50,000.00 damage for death
carabaos. It was the last time, however, that the two were seen alive. When the latter 2. 100,000.00 loss of earning capacity
failed to return the following day, a search, led by Julian, was conducted. In the course (estimated income x life span)
of their inquiry, it was learned that the motorcycle owned by Reynaldo was in the 3. 27,000.00 articles/money lost
custody of the barangay captain of Teddy, Jose Panganiban who told them that it was (P17,000.00, watch, Ray-Ban)
recovered from the Basit Compound. Forthwith, they proceeded to the said compound 4. 50,000.00 burial and other expenses
and found Reynaldo and Joselito lifeless, having sustained several mortally-inflicted —————
stab wounds in different parts of their bodies. The victims were divested of their P227,000.00
watches, rayban glasses, and a sum of money amounting to P37,000.00.
But for insufficiency of evidence, Joselito Quijan and Zaldy Victa are hereby
Police Major Roberto Rosales of the Camarines Norte Integrated National Police acquitted.
testified that upon appellant's arrest, the latter was apprised of his constitutional rights.
On June 25, 1990, in the presence of Atty. August Schneider, an investigation SO ORDERED. 7
conducted by the police ensued and statements therein were reduced to writing, signed
and sworn to before Jose Panganiban Municipal Mayor Arnie Arenal, who likewise Appellant assails the lower court for giving weight and credence to the extra-judicial
inquired whether or not appellant understood the consequences of his confession.5 statement, stating that at the time of the taking thereof, he was assisted by an
ineffectual counsel who could not safeguard his constitutional rights and interests.
We affirm appellant's conviction.
It is well-settled in this jurisdiction that for a confession to be admissible, it "must satisfy
all four fundamental requirements: (1) the confession must be voluntary; (2) the
confession must be made with the assistance of competent and independent counsel;
(3) the confession must be express; and (4) the confession must be in
writing."8 Appellant argued that the first and second requirements were not complied
with. The records of the case, however, reveal otherwise.
It must be borne in mind that when appellant executed the extrajudicial confession, it
was done in the presence of his counsel, Atty. Schneider, and sworn to before Mayor
Arenal. If indeed his confession were obtained as a result of coercion and intimidation
by policemen at the police station, he could have informed the Mayor of the
maltreatment he suffered. Having failed to convince the authorities, the extra-judicial
confession voluntarily made by Jerez is admissible in evidence. "The presumption,
therefore, of spontaneity and voluntariness stands unless the defense proves
otherwise."9
Appellant argued that the trial court erred when it denied his right to have an
independent counsel of his own choice. The records show that at the time the
extrajudicial confession was executed, appellant disclosed to the police officers that his
counsel of choice was Atty. Freddie Venida but that the latter would not be available as
he is due to depart for Manila on the same day. Subsequently, Major Rosales
suggested that Atty. Schneider, supposedly the only lawyer available in Jose
Panganiban, appear as the counsel of appellant during investigation and the latter
answered in the affirmative, as shown from the excerpts of his extrajudicial confession,
thus:
PASUBALI: — Ginoong Jerez, ikaw ay kukunan namin ng
malayang salaysay tungkol sa isang usapin na aming
sinisiyasat. Subalit, bago ang lahat, nais naming malaman
mo na ikaw ay may mga karapatan susog sa ating Saligang
Batas. Ito ay ang mga sumusunod:
Una: Ikaw ay may karapatang tumangging magbigay ng
salaysay o kaya ay magbigay ng salaysay, sapagkat ang
anumang sasabihin mo sa pagtatanong na ito ay maaaring
gamitin laban sa iyo sa harap ng hukuman. Nauunawaan
mo ito?
Sagot: Opo.
Ikalawa: Ikaw ay may karapatang ding kumuha ng isang
manananggol na sarili mong pili upang siyang maging
gabay mo sa pagtatanong na ito. Nauunawaan mo ito?
Sagot: Opo
Nais mo bang maging gabay mong manananggol ang ating
kaharap na manananggol na si Atty. Augusto B. Schneider?
Sagot: Opo.
Pangatlo: Nais din naming malaman mo at ng lahat na ikaw
ay hindi namin pinangangakuan, sinasaktan o tinatakot
upang magbigay ng iyong sariling salaysay, kundi, ito ay
pawang katotohanang kusang loob mong sasabihin at
isasalaysay. Nauunawaan mo ito?
Sagot: Opo.
Tanong: Kung nauunawaan mong lahat itong mga
pasubaling ito, ikaw ba ay nakahanda ng magbigay ng
iyong sariling malayang salaysay?
Sagot: Opo.10
While the initial choice of the lawyer in cases where a person under custodial
investigation cannot afford the services of a lawyer or (where the preferred lawyer is
available as in the case at bar) is naturally lodged in the police investigators, the
accused has the final choice as he may reject the counsel chosen for him and ask for
another one. A lawyer provided by the investigators is deemed engaged by the accused
where he never raised any objection against the former's appointment during the
course of the investigation and the accused thereafter subscribes to the veracity of his
statement before the swearing officer. 11 Thus, "once the prosecution has shown that
there was compliance with the constitutional requirement on pre-interrogation
advisories, a confession is presumed to be voluntary and the declarant bears the
burden of proving that his confession is involuntary and untrue. The burden is on the
accused to destroy this presumption. A confession is admissible until the accused
successfully proves that it was given as a result of violence, intimidation, threat or
promise of reward or leniency. 12
Although appellant thereafter claimed that the confession he gave was made under
duress, there is, however, no evidence on record to support the same. In People
v. Villanueva, this Court declared that "voluntariness of a confession may be inferred
from its language such that if upon its face the confession exhibits no sign of suspicious
circumstances tending to cast doubt upon its integrity, it being replete with details,
which could possibly be supplied only by the accused, reflecting spontaneity and
coherence which psychologically cannot be associated with a mind to which violence
and torture have been applied, it may be considered voluntary." 13 A scrutiny of the
sworn statement discloses in detail relevant facts surrounding the commission of the
offense charged which the accused himself could only have known.
The Court, therefore, finds that appellant's constitutional right to counsel was not
breached when he agreed to be represented by Atty. Schneider.
Appellant likewise argued that the trial court should have admitted his defense of alibi
"considering that he was not properly identified and physical evidence like properties,
money, fingerprints were not discovered by the arresting officers." 14
This contention is simply unavailing in the case at bar. It is settled in this jurisdiction
that "for alibi to prosper, it is not enough that the accused prove that he was somewhere
else when the crime was committed. He must demonstrate that he could not have been
physically present at the place of the crime or in its immediate vicinity at the time of its
commission." 15 Appellant testified that on the day in question, he was engaged in a
drinking spree with his friends at the house of Felix Rellolosa at Talobatib, Labo,
Camarines Norte and he went home at 4:00 o'clock p.m. staying thereat for the rest of
the night. Unfortunately, this version of the appellant was contradicted by prosecution
witnesses, Julian Ochoa and Gil Villafranca, who positively identified him in court as
the person scouting for carabao buyers in the Municipality of Labo, Camarines Norte at
around 9:00 o'clock a.m. on May 23, 1990. Needless to say, where an accused's alibi
is established only by himself, his relatives and friends, his denial of culpability should
be accorded the strictest scrutiny. They are necessarily suspect and cannot prevail over
the testimonies of the more credible witnesses for the prosecution. 16
The Court is, therefore, convinced that appellant's culpability of the offense charged
was proved beyond reasonable doubt.
The computation, however, of the damages awarded by the trial court for loss of earning
capacity fixing the same at P100,000.00 for each victim is erroneous.
"The formula consistently used by the Supreme Court in determining life expectancy is
(2/3 x [80 - age of the victim at the time of death])." 17 Thus, the award for loss of earning
capacity for each victim shall be as follows:
Joselito Balbastro
P36,000.00 — gross annual income (P3,000.00 x 12 mos.)
Multiply: 30 — life expectancy (2/3 x 45 [80 - 35 {age at time of
death}])
P1,080,000.00 — total loss of earning capacity
Reynaldo Ochoa
P36,000.00 — gross annual income (P3,000.00 x 12 mos.)
Multiply: 21 — life expectancy (2/3 x 31 [80 - 49 {age at time of
death}])
P756,000.00 — total loss of earning capacity
WHEREFORE, in view of the foregoing, the appeal is DISMISSED and the decision of
the trial court finding accused-appellant EFREN JEREZ guilty beyond reasonable doubt
of the crime charged is hereby AFFIRMED with the MODIFICATION that appellant shall
indemnify Joselito Balbastro and Reynaldo Ochoa in the amount of P1,080,000.00 and
P756,000.00, respectively, for losses of their respective earning capacity. Costs against
appellant.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
G.R. No. 103276 April 12, 1994
DOMINGO DE GUZMAN, petitioner,
vs.
THE SANDIGANBAYAN (Second Division) and the PEOPLE OF THE
PHILIPPINES, respondents.
V.E. Del Rosario & Associates and Eduardo R. Robles for petitioner.
The Solicitor General for the People of the Philippines.
CRUZ, J.:
The petitioner seeks reversal of his conviction for violation of Section 3(e) of Rep. Act
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. He claims that
as his guilt has not been proved beyond reasonable doubt, he should be accorded the
constitutional presumption of innocence. The petitioner presumes too much.
At the time of the incident in question, Domingo de Guzman was the Officer-in-Charge
and Assistant Director of the Bureau of Plant Industry. 1 As such, he received the sum
of P200,000.00 on December 17, 1985, with authority to disburse it in connection with
certain official training programs of the Department of Agriculture. 2 In a disbursement
voucher dated February 5, 1986, 3 he claimed credit for the amount but when required
later to produce the supporting receipts failed or refused to do so. This led to the filing
against him of the corresponding information, 4 to which he pleaded not guilty.
At the trial, the People presented one witness 5 and several exhibits purporting to show
that as a public officer the accused had received the said amount but failed to show
that it had been lawfully disbursed for the training programs allegedly held at Ipil,
Zamboanga del Sur, and Baguio City. 6 After the prosecution had rested, the defense
sought but did not obtain leave to file a demurrer to evidence but filed it just the
same.7 Under Rule 119, Section 15, of the Rules of Court, this would result in the
forfeiture of the right of the defense to submit its own evidence if the demurrer was
denied. Ultimately, on November 19, 1991, the Sandiganbayan rendered judgment
disposing as follows:
WHEREFORE, judgment is hereby rendered finding accused
Domingo de Guzman y Mateo GUILTY beyond reasonable doubt of
the Violation of Section 3, paragraph (e) of Republic Act No. 3019,
as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, and he is hereby sentenced to suffer the indeterminate
penalty of imprisonment ranging from SIX (6) YEARS and ONE (1)
MONTH as the minimum, to NINE (9) YEARS and ONE (1) DAY as
the maximum; to further suffer perpetual disqualification from public
 office; to indemnify the Government of the Republic of the Philippines
in the amount of P200,000.00, and to pay the costs of this action. 8
In the present petition, the respondent court is faulted for basing its conviction on
inconclusive evidence and giving credence to the lone government witness as against
the documentary evidence of the lawful disbursement of the amount in question. It is
argued that in criminal prosecutions every doubt must be resolved in favor of the
accused, but this rule was disregarded by the Sandiganbayan.
We see no such doubts in the case before us.
The petitioner himself has admitted having received the sum of P200,000.00 in his
capacity as OIC and Assistant Director of the Bureau of Plant Industry. He claims this
was spent for training programs in Ipil, Zamboanga del Sur and Baguio City, but there
is no positive evidence whatsoever that such training programs were really conducted.
He has not presented a single receipt to support his alleged disbursements and show
that no undue injury has been caused to the Government. Clearly, all this has resulted
in violation of Section 3 (e) of Republic Act No. 3019, reading as follows:
Sec. 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
xxx xxx xxx
(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence.. . ..
In her testimony for the prosecution, Josephine Angeles declared that as training officer
and chief of the training unit of the Bureau of Plants and Industry from 1985 to 1986,
she knew of no training programs conducted by the BPI at Ipil, Zamboanga del Sur,
and Baguio City during that period. Such training programs would have been officially
brought to her attention if they had actually been held. 9
The petitioner argues, however, that on cross-examination she admitted that there
might have been training programs held at that time that might not have been officially
communicated to her. It is now suggested that the training programs at Ipil, Zamboanga
de Sur, and Baguio City might well have been among such programs.
In the first place, this negative statement cannot prevail against her categorical and
positive assertion that as chief of the training program she was supposed to know, and
did know, about all such training programs funded by the BPI. In the second place, she
said that the training programs that could have been held without her knowledge were
those funded not by the BPI but by foreign agencies. In the third place, the mere
conjecture that the training programs could have been held is no proof that they were
actually held.
The petitioner also places much value on Exhibit E, 10 the petitioner's disbursement
voucher carrying the certification of the Chief Accountant that inter alia it "is supported
by documents appearing legal and proper." That is a bare statement, however, and
there is no explanation of what these documents are, nor are the supporting receipts
attached or annexed to the said voucher. As the Sandiganbayan correctly concluded:
. . . When accused claimed credit for the cash advance of
P200,000.00 in the Disbursement Voucher, dated February 5, 1986
(Exhibit E), for the expenses incurred during Three Regional
Trainings in Ipil, Zamboanga del Sur and Baguio City without any
supporting receipts in liquidation thereof, as can be seen from said
exhibit itself, and without submitting testimonial or documentary
evidence to justify either the cash advance or the alleged expenses,
then it stands clearly and positively established that he had
misappropriated said amount for his personal use or benefit. The
attempt to liquidate the cash advance in question appears to be
amateurish and ill-conceived and which sustains anew the
prosecution's charge that accused had acted with manifest partiality
and evident bad faith in the discharge of his official functions, thus
causing undue injury to the government. (Emphasis supplied)
The evidence against the petitioner is in our view sufficient to convict. The government
had established that he had received the money and had failed to account for it, thus
overcoming the presumption of innocence in his favor. Instead of refuting that evidence,
he smugly belittled it as if it were too inconsequential to disprove. Significantly, he
sought leave to file a demurrer to evidence, which he filed just the same even if leave
was denied by the respondent court.
The petitioner insists that it is not for him to show that the supporting receipts exist; on
the contrary, it is for the prosecution to prove that they do not exist. This is, indeed, a
strange manner of accounting. As for the possibility that the training programs "might
have really occurred," to use Angeles' words, this is a mere speculation that cannot
explain the petitioner's failure to account for the P200,000.00 entrusted to him.
The situation before us is starkly simple. The petitioner received P200,000.00 from the
government to defray the expenses of training programs. He has not liquidated it short
of saying it was spent for some amorphous training programs not on record. Who
should prove those training programs? The petitioner, of course. And he should do so
with concrete facts and figures supported by receipts, not with the mere undocumented
surmise that the training programs could have been held.
We should not stretch the presumption of innocence beyond its reasonable intendment.
Let us not forget that it is only a presumption and can yield to contrary evidence of guilt.
That evidence has been amply established in this case. The petitioner's conviction was
not based on what the Sandiganbayan mistakenly called a presumption of his guilt. The
finding of guilt was not a presumption but a conclusion.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so
ordered.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno and Kapunan, JJ., concur.
Bidin, J., is on leave.
G.R. No. 92534 July 9, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ESMENIO DE LA PEÑA y BEDRIO, accused-appellant.
The Solicitor General for palintiff-appellee.
Raymundo Magat for accused-appellant
MELENCIO-HERRERA, J.:
Condemned to a life in prison1 for peddling marijuana,2 Esmenio de la Peña reiterates
his plea of innocence before this Court.
Records show that Appellant was arrested on 24 March 1988 for selling marijuana in a
"buy-bust operation" conducted by the officers of the Narcotics Command of Region VI,
Iloilo City. On 7 April 1988, Appellant executed a counter-affidavit before a CLAO
Attorney, vehemently denying culpability (Exh. D). After preliminary investigation, the
Third Assistant City Prosecutor recommended dismissal of the case on the ground that
appellant was instigated to commit the crime by the Narcom officers (Exh. Y). This
recommendation, however, was reversed by the City Prosecutor, who ordered another
prosecutor to file the necessary Information (Exh. I). A petition for review of said
reversal was denied by the Department of Justice, which ruled that there was sufficient
evidence to establish probable cause against Appellant and that the question of
instigation or entrapment is for the Court, and not for the Investigating Fiscal, to
determine (Exh. E).
The corresponding Information having been filed, upon arraignment, Appellant entered
a plea of not guilty.
Through its witnesses, the principal one being Sgt. Allaga, a team member, the
prosecution wrapped up its evidence thus:
On 24 March 1988, at about 2:00 o'clock P.M., Lt. Eleuterio Salde of the Narcotics
Command, Region VI, Iloilo City, received a telephone call from a concerned citizen
informing him that a certain "Esmie" later identified as Appellant Esmenio de la Peña,
was selling marijuana at Punta Baluarte, Molo, Iloilo City. Immediately, he organized
and led a team composed of six (6) persons to conduct a "buy-bust operation" (tsn., 17
April 1989, pp. 4-5).
Arriving at the directed place at about 5:00 o'clock that same day, Sgt. Francisco Allaga,
the designated poseur-buyer and principal prosecution witness, proceeded to a sari-
sari store (ibid., p. 6) and inquired, from a child therein, about one "Esmie" (ibid., p. 7).
The child pointed to the Appellant who was seated under a waiting shade about ten
(10) meters away (ibid.). Sgt. Allaga then approached and asked Appellant if he (the
latter) could "score" (lingo for marijuana users). Reacting, Appellant asked "how much
do you want" to which Sgt. Allaga replied "worth P30.00" (ibid., p. 8). Asked to wait
(ibid.), Sgt. Allaga then gave the amount to Appellant, who left and returned after five
(5) minutes with a parcel wrapped in a "Camel" cigarette pack (ibid., pp. 17-18).
Appellant handed the parcel to Sgt. Allaga, who opened it, and upon seeing that it
contained marijuana arrested Appellant (ibid., pp. 10-11).
At the Narcom headquarters, Lt. Salde placed identifying marks on the package which
he kept in a padlocked steel cabinet for safekeeping (ibid., p. 14). Lt. Salde also issued
a receipt for the property seized (Exh. C) consisting of fifteen (15) sticks of marijuana
wrapped in a "Camel" cigarette pack (Exh. C-1) which was witnessed by Sgt. Allaga
(Exh. C-2), and signed by Appellant (Exh. C-3) Tests conducted at the PC crime
laboratory yielded positive results for marijuana (Exh. B).
On 29 May 1989, after the prosecution had rested its case, Appellant, with leave of
Court, filed a "Demurrer to Evidence" on the ground of insufficiency of evidence to
produce conviction (Orig. Record, p. 53). Ruling that the arguments advanced did not
appear indubitable, the Trial Court denied dismissal and ordered the reception of
evidence for the accused (ibid., p. 68).
Denying any and all culpability, Appellant's narration is that on the date and time in
question, as he was washing clothes at his aunt's house (tsn., 21 August 1989, p. 2), a
man, whom he later came to know as Sgt. Francisco Allaga, arrived and inquired from
him where marijuana could be bought (ibid., p. 3). Appellant replied that he did not
know. When Sgt. Allaga insisted, saying that he needed it as medication for a patient
(ibid.). Appellant again disowned any knowledge. At that moment, one Aris Magarse
and a certain Angeles Octavio passed by and Appellant informed them that the man
needed marijuana but that he did not know where the item could be bought (ibid., p. 4).
Aris volunteered to look for marijuana (ibid.). She was given money by Sgt. Allaga
(ibid.). Ten minutes later, Aris returned and handed the marijuana to Appellant which
he, in turn, gave to Sgt. Allaga (ibid., p. 5). No sooner had the Sgt. taken hold of it when
the latter identified himself as a Narcom agent and apprehended him (ibid.).
Angeles Octavio, a neighbor and close friend of Appellant, corroborated the latter's
testimony.
After assessing the evidence before it, the Trial Court rejected Appellant's version for
being replete with inconsistencies and improbabilities, gave more credence to the
testimony of the prosecution's main witness, Sgt. Allaga, and adjudged Appellant "to
suffer the Penalty of Reclusion Perpetua; to pay a fine of P20,000,00 without subsidiary
imprisonment in case of insolvency and to pay the costs."
Unable to accept the verdict, Appellant contends that the Trial Court erred (1) in giving
credence to the prosecution evidence rather than to his corroborated testimony; (2) in
not finding that the circumstances leading to his apprehension constitute instigation
rather than a valid entrapment; and, overall, in not acquitting him in the face of the weak
prosecution evidence.
After a review of the oral and documentary evidence, we rule as follows:
The Court a quo cannot be faulted for giving credence to the testimony of Sgt. Allaga.
Although uncorroborated, it is positive and credible and is sufficient to support
conviction. He has convincingly established the details of the crime. He was present
when information was received at Narcom headquarters about Appellant's illegal
activities. He was the principal actor, the designated poseur-buyer, in the "buy-bust"
operation. It was he who arrested Appellant after determining that the parcel delivered
to him contained marijuana. He witnessed the issuance of a receipt for the seized
marijuana, which Appellant had signed. He was also with Lt. Salde when the marijuana
was delivered to the PC crime laboratory for examination. More, absent is any showing
that Sgt. Allaga was motivated by any improper motive other than to perform his
mandated duty. He is also presumed to have regularly performed his official duty in the
absence of any opposite evidence.
Contrary to Appellant's contention, the marijuana identified by Sgt. Allaga during trial
was the same item seized from Appellant. Said witness was present when Lt. Salde
made identifying marks on the parcel in question and when it was handed to the police
custodian for safekeeping. Proper safeguards were taken to protect the identity of the
exhibit. After appropriate labelling, it was kept in a padlocked steel cabinet until it was
taken to the laboratory for examination four (4) days later.
Appellant's story pointing to another individual, one Aris Magarse, as the supplier of the
prohibited drug, is far from credible notwithstanding its corroboration by defense
witness Angeles Octavio. For, as found by the Trial Court, Appellant had involved
himself in inconsistencies. In his Counter-Affidavit, the authenticity of which he had
acknowledged, he stated that when he was approached by a man, who turned out later
to be a Narcom poseur buyer, he was watching his friends playing mahjong (Exh. D).
His testimony in Court, however, was that he was washing clothes in the house of his
aunt when so approached. Contradicting both statements is the testimony of defense
witness, Angeles Octavio, that he was with Aris Magarse when they passed by
Appellant in a "footpath" conversing with Sgt. Allaga. Besides, if Aris were, indeed, the
marijuana supplier she would surely have been arrested also.
Further, in his Counter-Affidavit, Appellant stated that "I left him and some few minutes
later I returned with fifteen (15) sticks of marijuana cigarettes for him." In open Court,
however, he was attributing sole fault to Aris Magarse in an effort to shift culpability
from him.
These inconsistencies cast a heavy pall of doubt on Appellant's version of the
incident.1âwphi1 Of significance, too, is the fact that instant rapport was established
between Appellant and Sgt. Allaga when the latter asked for a "score," a term
apparently used by addicts and pushers. If Appellant, in fact, had not been engaged in
such nefarious activity, the term would have been alien to him, but it was not.
The Trial Court aptly characterized the circumstances surrounding Appellant's
apprehension as "entrapment" and not "instigation." Firstly, Appellant's story that he
had consistently denied to Sgt. Allaga having marijuana but that because of the latter's
insistence, he was induced to look for and produce marijuana, can not be given
credence, his testimony having been found to be unworthy of belief, as already
expounded. The prosecution version, being more credible, the operation was, in fact,
an entrapment not an instigation, the underlying difference being in the origin of the
criminal intent. In entrapment, means rea originates from the mind of the criminal. The
Idea and resolve to commit the crime comes from him. In instigation, the law officers
conceive the commission of the crime and suggest it to the accused, who adopts the
idea and carries it into execution (Araneta v. Court of Appeals, G.R. No. L-46638, 9
July 1986, 142 SCRA 534). Entrapment is sanctioned by the Revised Penal Code.
Instigation is tabooed.
In this case, Sgt. Allaga's inquiry addressed to Appellant was far from a suggestion. It
was a query to which Appellant immediately responded by asking how much was
needed, requesting the Sgt. to wait, and returning after a few minutes with the "goods"
in hand. Appellant needed no prodding, no inducement, and much less, instigation. His
reaction was natural to one who was already engaged in the illicit trade of marijuana
and all that Narcom did was to catch him in the act.
Under the circumstances, Appellant does not deserve acquittal.
It needs stressing, however, that Appellant's signature on the receipt of the property
seized (Exh. C-1), a procedural step after arrest, is not a factor in his conviction. That
signature is inadmissible in evidence against him. It was obtained in violation of
Appellant's right as a person under custodial investigation for the commission of an
offense, there being nothing in the records to show that he was then assisted by
counsel. (People v. Bagano, G.R. No. 77777, 5 February 1990, 181 SCRA 747).
Appellant's guilt has been adequately established by other evidence of record.
WHEREFORE, the judgment appealed from is AFFIRMED, except that the Penalty
should be life imprisonment (Pres. Decree No. 1675, Section 4) and not "reclusion
perpetua" as imposed by the Trial Court. Costs against accused-appellant, Esmenio de
la Peña.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary
of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While ostensibly only
legal issues are involved, the Court's decision in this case would indubitably have a
profound effect on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any elective position
in the immediately preceding -elections. However, a majority thereof, including
the Chairman, shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973
Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and
eight Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age and holders of a college
degree. However, a majority thereof, including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of law for at least ten years.'
(Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes
practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is
not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters
connected with the law. An attorney engages in the practice of law by
maintaining an office where he is held out to be-an attorney, using a letterhead
describing himself as an attorney, counseling clients in legal matters,
negotiating with opposing counsel about pending litigation, and fixing and
collecting fees for services rendered by his associate. (Black's Law Dictionary,
3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract
and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered
to be in the practice of law when he:
... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or appears
in a representative capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee, board, body,
committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity performs any act or
acts for the purpose of obtaining or defending the rights of their clients under
the law. Otherwise stated, one who, in a representative capacity, engages in
the business of advising clients as to their rights under the law, or while so
engaged performs any act or acts either in court or outside of court for that
purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S.
Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-
177) stated:
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and
in matters of estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal instruments, where the
work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice on
a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation.
They require in many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to difficult and complex
situations. These customary functions of an attorney or counselor at law bear
an intimate relation to the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the order, can be drawn
between that part of the work of the lawyer which involves appearance in court
and that part which involves advice and drafting of instruments in his office. It
is of importance to the welfare of the public that these manifold customary
functions be performed by persons possessed of adequate learning and skill,
 of sound moral character, and acting at all times under the heavy trust
obligations to clients which rests upon all attorneys. (Moran, Comments on the
Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the
Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile
Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new
lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms
as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual
for attorneys engaging in the active practice of their profession, and he follows
some one or more lines of employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of
law, legal procedure, knowledge, training and experience. "To engage in the practice
of law is to perform those acts which are characteristics of the profession. Generally, to
practice law is to give notice or render any kind of service, which device or service
requires the use in any degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted
a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which
I forgot to do during our review of the provisions on the Commission on Audit.
May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
Section I is that "They must be Members of the Philippine Bar" — I am quoting
from the provision — "who have been engaged in the practice of law for at
least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar
who are now employed in the COA or Commission on Audit, we would like to make the
clarification that this provision on qualifications regarding members of the Bar does not
necessarily refer or involve actual practice of law outside the COA We have to interpret
this to mean that as long as the lawyers who are employed in the COA are using their
legal knowledge or legal talent in their respective work within COA, then they are
qualified to be considered for appointment as members or commissioners, even
chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions and
Agencies and we deem it important to take it up on the floor so that this interpretation
may be made available whenever this provision on the qualifications as regards
members of the Philippine Bar engaging in the practice of law for at least ten years is
taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the Article on
the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the necessary
qualifications in accordance with the Provision on qualifications under our
provisions on the Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent
to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the
Chairman and two Commissioners of the Commission on Audit (COA) should either be
certified public accountants with not less than ten years of auditing practice, or
members of the Philippine Bar who have been engaged in the practice of law for at
least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not engage in
private practice, it is still a fact that the majority of lawyers are private practitioners.
(Gary Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986],
p. 15).
At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of delivering
legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners."
Groups of lawyers are called "firms." The firm is usually a partnership and members of
the firm are the partners. Some firms may be organized as professional corporations
and the members called shareholders. In either case, the members of the firm are the
experienced attorneys. In most firms, there are younger or more inexperienced salaried
attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is
essentially tautologous, unhelpful defining the practice of law as that which lawyers do.
(Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p.
593). The practice of law is defined as the performance of any acts . . . in or out of court,
commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank
& Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v.
Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost
every function known in the commercial and governmental realm, such a definition
would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly
familiar role for lawyers as well as an uncommon role for the average lawyer. Most
lawyers spend little time in courtrooms, and a large percentage spend their entire
practice without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue
to litigate and the litigating lawyer's role colors much of both the public image and the
self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not
reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer,
once articulated on the importance of a lawyer as a business counselor in this wise:
"Even today, there are still uninformed laymen whose concept of an attorney is one
who principally tries cases before the courts. The members of the bench and bar and
the informed laymen such as businessmen, know that in most developed societies
today, substantially more legal work is transacted in law offices than in the courtrooms.
General practitioners of law who do both litigation and non-litigation work also know
that in most cases they find themselves spending more time doing what [is] loosely
desccribe[d] as business counseling than in trying cases. The business lawyer has
been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t]
need not [be] stress[ed] that in law, as in medicine, surgery should be avoided where
internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number
of legal tasks, each involving different legal doctrines, legal skills, legal processes, legal
institutions, clients, and other interested parties. Even the increasing numbers of
lawyers in specialized practice wig usually perform at least some legal services outside
their specialty. And even within a narrow specialty such as tax practice, a lawyer will
shift from one legal task or role such as advice-giving to an importantly different one
such as representing a client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the
relatively rare types — a litigator who specializes in this work to the exclusion of much
else. Instead, the work will require the lawyer to have mastered the full range of
traditional lawyer skills of client counselling, advice-giving, document drafting, and
negotiation. And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it some
of the salient features of adversarial litigation. Of these special roles, the most
prominent is that of prosecutor. In some lawyers' work the constraints are imposed both
by the nature of the client and by the way in which the lawyer is organized into a social
unit to perform that work. The most common of these roles are those of corporate
practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are
emerging trends in corporate law practice, a departure from the traditional concept of
practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning,"
has impressed upon us the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of major
trends, the necessity of estimating the consequences of given courses of
action, and the need for fast decision and response in situations of acute
danger have prompted the use of sophisticated concepts of information flow
theory, operational analysis, automatic data processing, and electronic
computing equipment. Understandably, an improved decisional structure must
stress the predictive component of the policy-making process, wherein a
"model", of the decisional context or a segment thereof is developed to test
projected alternative courses of action in terms of futuristic effects flowing
therefrom.
Although members of the legal profession are regularly engaged in predicting
and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy
of advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multi-
variable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in
business administration or management, functioning at the legal policy level
of decision-making now have some appreciation for the concepts and
analytical techniques of other professions which are currently engaged in
similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would
require the services of an astute attorney because of the complex legal
implications that arise from each and every necessary step in securing and
maintaining the business issue raised. (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as
the "abogado de campanilla." He is the "big-time" lawyer, earning big money
and with a clientele composed of the tycoons and magnates of business and
industry.
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and type of
the corporation. Many smaller and some large corporations farm out all their
legal problems to private law firms. Many others have in-house counsel only
for certain matters. Other corporation have a staff large enough to handle most
legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in both courts and other
adjudicatory agencies (including the Securities and Exchange Commission),
and in other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the
legal affairs of the business of the corporation he is representing. These
include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from
the action, or not understanding how one's work actually fits into the work of
the orgarnization. This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is sometimes offered
this fortune to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field.
After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived
by many as glamorous, tills is an area coveted by corporate lawyers. In most
cases, however, the overseas jobs go to experienced attorneys while the
younger attorneys do their "international practice" in law libraries. (Business
Star, "Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to
wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one who surmounts
them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so
to speak. No longer are we talking of the traditional law teaching method of
confining the subject study to the Corporation Code and the Securities Code
but an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types
of learning: (1) acquisition of insights into current advances which are of
particular significance to the corporate counsel; (2) an introduction to usable
disciplinary skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and management of the
legal function itself.
These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's
role. For that matter, the corporate lawyer reviews the globalization process,
including the resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think about a corporation's;
strategy at multiple levels. The salience of the nation-state is being reduced
as firms deal both with global multinational entities and simultaneously with
sub-national governmental units. Firms increasingly collaborate not only with
public entities but with each other — often with those who are competitors in
other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a
new role as a stakeholder — in some cases participating in the organization
and operations of governance through participation on boards and other
decision-making roles. Often these new patterns develop alongside existing
legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. ( Emphasis
supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other
countries. In Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan's MITI is world famous.
(Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all kinds
of organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better
predictors of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer
vis-a-vis the managerial mettle of corporations are challenged. Current
research is seeking ways both to anticipate effective managerial procedures
and to understand relationships of financial liability and insurance
considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors
are apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback loops,
inventory levels, and rates of flow, enable users to simulate all sorts of
systematic problems — physical, economic, managerial, social, and
psychological. New programming techniques now make the system dynamics
principles more accessible to managers — including corporate counsels.
(Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department, it can
be used to appraise the settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk involved in managing a portfolio of
cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be
used directly by parties and mediators in all lands of negotiations. All
integrated set of such tools provide coherent and effective negotiation support,
including hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with minimizing
the risks of legal trouble and maximizing legal rights for such legal entities at
that time when transactional or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken
those activities of the firm to which legal consequences attach. It needs to be
directly supportive of this nation's evolving economic and organizational fabric
as firms change to stay competitive in a global, interdependent environment.
The practice and theory of "law" is not adequate today to facilitate the
relationships needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general
counsel has emerged in the last decade as one of the most vibrant subsets of
the legal profession. The corporate counsel hear responsibility for key aspects
of the firm's strategic issues, including structuring its global operations,
managing improved relationships with an increasingly diversified body of
employees, managing expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally with more complex
make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to give him a full
sense of how the legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a working knowledge
of the management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than
a passing knowledge of financial law affecting each aspect of their work. Yet,
many would admit to ignorance of vast tracts of the financial law territory. What
transpires next is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the
position of Chairman of the COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991. Petitioner opposed the nomination
because allegedly Monsod does not possess the required qualification of having been
engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of
Monsod as Chairman of the COMELEC. On June 18, 1991, he took his oath of office.
On the same day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of
Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for
certiorari and Prohibition praying that said confirmation and the consequent
appointment of Monsod as Chairman of the Commission on Elections be declared null
and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-55%. He has been a dues paying member of
the Integrated Bar of the Philippines since its inception in 1972-73. He has also been
paying his professional license fees as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty.
Monsod worked in the law office of his father. During his stint in the World Bank Group
(1963-1970), Monsod worked as an operations officer for about two years in Costa Rica
and Panama, which involved getting acquainted with the laws of member-countries
negotiating loans and coordinating legal, economic, and project work of the Bank. Upon
returning to the Philippines in 1970, he worked with the Meralco Group, served as chief
executive officer of an investment bank and subsequently of a business conglomerate,
and since 1986, has rendered services to various companies as a legal and economic
consultant or chief executive officer. As former Secretary-General (1986) and National
Chairman (1987) of NAMFREL. Monsod's work involved being knowledgeable in
election law. He appeared for NAMFREL in its accreditation hearings before the
Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-
Chairman of the Bishops Businessmen's Conference for Human Development, has
worked with the under privileged sectors, such as the farmer and urban poor groups,
in initiating, lobbying for and engaging in affirmative action for the agrarian reform law
and lately the urban land reform bill. Monsod also made use of his legal knowledge as
a member of the Davide Commission, a quast judicial body, which conducted numerous
hearings (1990) and as a member of the Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of Public Officers, for which he was cited
by the President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable
amendments to reconcile government functions with individual freedoms and public
accountability and the party-list system for the House of Representative. (pp. 128-129
Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a
member.
In a loan agreement, for instance, a negotiating panel acts as a team, and
which is adequately constituted to meet the various contingencies that arise
during a negotiation. Besides top officials of the Borrower concerned, there
are the legal officer (such as the legal counsel), the finance manager, and
an operations officer (such as an official involved in negotiating the contracts)
who comprise the members of the team. (Guillermo V. Soliven, "Loan
Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2,
Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down
the law as far as the loan transaction is concerned. Thus, the meat of any
Loan Agreement can be compartmentalized into five (5) fundamental parts:
(1) business terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing Nations," submitted
by L. Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of
Nations at the Abidjan World Conference in Ivory Coast, sponsored by the
World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in legislation
and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer
may work with an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be
carefully drafted and signed only with the advise of competent counsel in
conjunction with the guidance of adequate technical support personnel. (See
International Law Aspects of the Philippine External Debts, an unpublished
dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis
supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set
of terms and conditions which determines the contractual remedies for a
failure to perform one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but must also state
the recourse open to either party when the other fails to discharge an
obligation. For a compleat debt restructuring represents a devotion to that
principle which in the ultimate analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in domestic and international
affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr.
once said: "They carry no banners, they beat no drums; but where they are,
men learn that bustle and bush are not the equal of quiet genius and serene
mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4,
Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law". particularly
the modern concept of law practice, and taking into consideration the liberal
construction intended by the framers of the Constitution, Atty. Monsod's past work
experiences as a lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of
industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and
the poor — verily more than satisfy the constitutional requirement — that he has been
engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the
Court said:
 Appointment is an essentially discretionary power and must be performed by
the officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by law. If
he does, then the appointment cannot be faulted on the ground that there are
others better qualified who should have been preferred. This is a political
question involving considerations of wisdom which only the appointing
authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all
the other legal requirements are satisfied, the Commission has no alternative
but to attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no
authority to direct the appointment of a substitute of its choice. To do so would
be an encroachment on the discretion vested upon the appointing authority.
An appointment is essentially within the discretionary power of whomsoever it
is vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four
(4) stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3)
issuance of a commission (in the Philippines, upon submission by the Commission on
Appointments of its certificate of confirmation, the President issues the permanent
appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of
Monsod as Chairman of the Commission on Elections is mandated by Section 1(2)
Sub-Article C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for
three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law,
which modern connotation is exactly what was intended by the eminent
framers of the 1987 Constitution. Moreover, Justice Padilla's definition would
require generally a habitual law practice, perhaps practised two or three times
a week and would outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my
written opinion, I made use of a definition of law practice which really means nothing
because the definition says that law practice " . . . is what people ordinarily mean by
the practice of law." True I cited the definition but only by way of sarcasm as evident
from my statement that the definition of law practice by "traditional areas of law practice
is essentially tautologous" or defining a phrase by means of the phrase itself that is
being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations,
most individuals, in making use of the law, or in advising others on what the law means,
are actually practicing law. In that sense, perhaps, but we should not lose sight of the
fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been
practising law for over ten years. This is different from the acts of persons practising
law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President
of the Philippines, say, on the ground that he lacks one or more qualifications. This
matter, I greatly doubt. For one thing, how can an action or petition be brought against
the President? And even assuming that he is indeed disqualified, how can the action
be entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on
Monsod's confirmation, implicitly determined that he possessed the necessary
qualifications as required by law. The judgment rendered by the Commission in the
exercise of such an acknowledged power is beyond judicial interference except only
upon a clear showing of a grave abuse of discretion amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Commission's judgment. In
the instant case, there is no occasion for the exercise of the Court's corrective power,
since no abuse, much less a grave abuse of discretion, that would amount to lack or
excess of jurisdiction and would warrant the issuance of the writs prayed, for has been
clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President,
may the Supreme Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
 We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea
asked Delilah (who was Samson's beloved) for help in capturing Samson. Delilah
agreed on condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
On July 14, 2006, pursuant to Republic Act (RA) 9225 (Citizenship Retention and Re-
Acquisition Act of 2003), petitioner reacquired his Philippine citizenship.1 On that day,
he took his oath of allegiance as a Filipino citizen before the Philippine Consulate
General in Toronto, Canada. Thereafter, he returned to the Philippines and now intends
to resume his law practice. There is a question, however, whether petitioner Benjamin
M. Dacanay lost his membership in the Philippine bar when he gave up his Philippine
citizenship in May 2004. Thus, this petition.
In a report dated October 16, 2007, the Office of the Bar Confidant cites Section 2, Rule
138 (Attorneys and Admission to Bar) of the Rules of Court:

When Samson (his long hair cut by Delilah) was captured, the procurator placed an
iron rod burning white-hot two or three inches away from in front of Samson's eyes.
This blinded the man. Upon hearing of what had happened to her beloved, Delilah was
beside herself with anger, and fuming with righteous fury, accused the procurator of
reneging on his word. The procurator calmly replied: "Did any blade touch his skin? Did
any blood flow from his veins?" The procurator was clearly relying on the letter, not the
spirit of the agreement.
SECTION 2. Requirements for all applicants for admission to the bar. – Every
applicant for admission as a member of the bar must be a citizen of the
Philippines, at least twenty-one years of age, of good moral character, and a
resident of the Philippines; and must produce before the Supreme Court
satisfactory evidence of good moral character, and that no charges against
him, involving moral turpitude, have been filed or are pending in any court in
the Philippines.

In view of the foregoing, this petition is hereby DISMISSED. Applying the provision, the Office of the Bar Confidant opines that, by virtue of his
reacquisition of Philippine citizenship, in 2006, petitioner has again met all the
SO ORDERED. qualifications and has none of the disqualifications for membership in the bar. It
recommends that he be allowed to resume the practice of law in the Philippines,
Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur. conditioned on his retaking the lawyer’s oath to remind him of his duties and
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.) responsibilities as a member of the Philippine bar.

Sarmiento, J., is on leave. We approve the recommendation of the Office of the Bar Confidant with certain
modifications.

Regalado, and Davide, Jr., J., took no part.

The practice of law is a privilege burdened with conditions.2 It is so delicately affected
with public interest that it is both a power and a duty of the State (through this Court) to
B.M. No. 1678 December 17, 2007 control and regulate it in order to protect and promote the public welfare.3

PETITION FOR LEAVE TO RESUME PRACTICE OF LAW, Adherence to rigid standards of mental fitness, maintenance of the highest degree of
BENJAMIN M. DACANAY, petitioner. morality, faithful observance of the rules of the legal profession, compliance with the
mandatory continuing legal education requirement and payment of membership fees to
RESOLUTION the Integrated Bar of the Philippines (IBP) are the conditions required for membership
in good standing in the bar and for enjoying the privilege to practice law. Any breach by
a lawyer of any of these conditions makes him unworthy of the trust and confidence
CORONA, J.:
which the courts and clients repose in him for the continued exercise of his professional
privilege.4
This bar matter concerns the petition of petitioner Benjamin M. Dacanay for leave to
resume the practice of law.
Section 1, Rule 138 of the Rules of Court provides:

Petitioner was admitted to the Philippine bar in March 1960. He practiced law until he
SECTION 1. Who may practice law. – Any person heretofore duly admitted as
migrated to Canada in December 1998 to seek medical attention for his ailments. He
a member of the bar, or thereafter admitted as such in accordance with the
subsequently applied for Canadian citizenship to avail of Canada’s free medical aid
provisions of this Rule, and who is in good and regular standing, is entitled to
program. His application was approved and he became a Canadian citizen in May
practice law.
2004.
Pursuant thereto, any person admitted as a member of the Philippine bar in accordance
with the statutory requirements and who is in good and regular standing is entitled to
practice law.
Admission to the bar requires certain qualifications. The Rules of Court mandates that
an applicant for admission to the bar be a citizen of the Philippines, at least twenty-one
years of age, of good moral character and a resident of the Philippines.5 He must also
produce before this Court satisfactory evidence of good moral character and that no
charges against him, involving moral turpitude, have been filed or are pending in any
court in the Philippines.6
Moreover, admission to the bar involves various phases such as furnishing satisfactory
proof of educational, moral and other qualifications;7 passing the bar
examinations;8 taking the lawyer’s oath9 and signing the roll of attorneys and receiving
from the clerk of court of this Court a certificate of the license to practice.10
The second requisite for the practice of law ― membership in good standing ― is a
continuing requirement. This means continued membership and, concomitantly,
payment of annual membership dues in the IBP;11 payment of the annual professional
tax;12 compliance with the mandatory continuing legal education requirement;13 faithful
observance of the rules and ethics of the legal profession and being continually subject
to judicial disciplinary control.14
Given the foregoing, may a lawyer who has lost his Filipino citizenship still practice law
in the Philippines? No.
The Constitution provides that the practice of all professions in the Philippines shall be
limited to Filipino citizens save in cases prescribed by law.15 Since Filipino citizenship
is a requirement for admission to the bar, loss thereof terminates membership in the
Philippine bar and, consequently, the privilege to engage in the practice of law. In other
words, the loss of Filipino citizenship ipso jure terminates the privilege to practice law
in the Philippines. The practice of law is a privilege denied to foreigners.16
The exception is when Filipino citizenship is lost by reason of naturalization as a citizen
of another country but subsequently reacquired pursuant to RA 9225. This is because
"all Philippine citizens who become citizens of another country shall be deemed not to
have lost their Philippine citizenship under the conditions of [RA 9225]."17 Therefore, a
Filipino lawyer who becomes a citizen of another country is deemed never to have lost
his Philippine citizenship if he reacquires it in accordance with RA 9225. Although
he is also deemed never to have terminated his membership in the Philippine bar, no
automatic right to resume law practice accrues.
Under RA 9225, if a person intends to practice the legal profession in the Philippines
and he reacquires his Filipino citizenship pursuant to its provisions "(he) shall apply
with the proper authority for a license or permit to engage in such practice."18 Stated
otherwise, before a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can
resume his law practice, he must first secure from this Court the authority to do so,
conditioned on:
(a) the updating and payment in full of the annual membership dues in the
IBP;
(b) the payment of professional tax;
(c) the completion of at least 36 credit hours of mandatory continuing legal
education; this is specially significant to refresh the applicant/petitioner’s
knowledge of Philippine laws and update him of legal developments and
(d) the retaking of the lawyer’s oath which will not only remind him of his
duties and responsibilities as a lawyer and as an officer of the Court, but also
renew his pledge to maintain allegiance to the Republic of the Philippines.
Compliance with these conditions will restore his good standing as a member of the
Philippine bar.
WHEREFORE, the petition of Attorney Benjamin M. Dacanay is hereby GRANTED,
subject to compliance with the conditions stated above and submission of proof of such
compliance to the Bar Confidant, after which he may retake his oath as a member of
the Philippine bar.
SO ORDERED.
G.R. No. L-12426 February 16, 1959
PHILIPPINE LAWYER'S ASSOCIATION, petitioner,
vs.
CELEDONIO AGRAVA, in his capacity as Director of the Philippines Patent
Office, respondent.
Arturo A. Alafriz for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for
respondent.
MONTEMAYOR, J.:
This is the petition filed by the Philippine Lawyer's Association for prohibition and
injunction against Celedonio Agrava, in his capacity as Director of the Philippines
Patent Office.
On may 27, 1957, respondent Director issued a circular announcing that he had
scheduled for June 27, 1957 an examination for the purpose of determining who are
qualified to practice as patent attorneys before the Philippines Patent Office, the said
examination to cover patent law and jurisprudence and the rules of practice before said
office. According to the circular, members of the Philippine Bar, engineers and other
persons with sufficient scientific and technical training are qualified to take the said
examination. It would appear that heretofore, respondent Director has been holding
similar examinations.
It is the contention of the petitioner Philippine Lawyer's Association that one who has
passed the bar examinations and is licensed by the Supreme Court to practice law in
the Philippines and who is in good standing, is duly qualified to practice before the
Philippines Patent Office, and that consequently, the cat of the respondent Director
requiring members of the Philippine Bar in good standing to take and pass an
examination given by the Patent Office as a condition precedent to their being allowed
to practice before said office, such as representing applicants in the preparation and
prosecution of applications for patent, is in excess of his jurisdiction and is in violation
of the law.
In his answer, respondent Director, through the Solicitor General, maintains that the
prosecution of patent cases "does not involve entirely or purely the practice of law but
includes the application of scientific and technical knowledge and training, so much so
that, as a matter of actual practice, the prosecution of patent cases may be handled not
only by lawyers, but also engineers and other persons with sufficient scientific and
technical training who pass the prescribed examinations as given by the Patent Office;
. . . that the Rules of Court do not prohibit the Patent Office, or any other quasi-judicial
body from requiring further condition or qualification from those who would wish to
handle cases before the Patent Office which, as stated in the preceding paragraph,
requires more of an application of scientific and technical knowledge than the mere
application of provisions of law; . . . that the action taken by the respondent is in
accordance with Republic Act No. 165, otherwise known as the Patent Law of the
Philippines, which similar to the United States Patent Law, in accordance with which
the United States Patent Office has also prescribed a similar examination as that
prescribed by respondent. . . .
Respondent further contends that just as the Patent law of the United States of America
authorizes the Commissioner of Patents to prescribe examinations to determine as to
who practice before the United States Patent Office, the respondent, is similarly
authorized to do so by our Patent Law, Republic Act No. 165.
Although as already stated, the Director of Patents, in the past, would appear to have
been holding tests or examinations the passing of which was imposed as a required
qualification to practice before the Patent Office, to our knowledge, this is the first time
that the right of the Director of Patents to do so, specially as regards members of the
bar, has been questioned formally, or otherwise put in issue. And we have given it
careful thought and consideration.
The Supreme Court has the exclusive and constitutional power with respect to
admission to the practice of law in the Philippines1 and to any member of the Philippine
Bar in good standing may practice law anywhere and before any entity, whether judicial
or quasi-judicial or administrative, in the Philippines. Naturally, the question arises as
to whether or not appearance before the patent Office and the preparation and the
prosecution of patent applications, etc., constitutes or is included in the practice of law.
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
and social proceedings, the management of such actions and proceedings on
behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in
matters connected with the law corporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy
and insolvency proceedings, and conducting proceedings in attachment, and
in matters of estate and guardianship have been held to constitute law practice
as do the preparation and drafting of legal instruments, where the work done
involves the determination by the trained legal mind of the legal effect of facts
and conditions. (5 Am. Jur. p. 262, 263). (Emphasis supplied).
Practice of law under modern conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice on
a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation.
They require in many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to difficult and complex
situations. These customary functions of an attorney or counselor at law bear
an intimate relation to the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the order, can be drawn
between that part which involves advice and drafting of instruments in his
office. It is of importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of adequate
learning and skill, of sound moral character, and acting at all times under the
heavy trust obligations to clients which rests upon all attorneys. (Moran,
Comments on the Rules of Court, Vol. 3 (1953 ed.), p. 665-666, citing In re
Opinion of the Justices (Mass.), 194 N.E. 313, quoted in Rhode Is. Bar Assoc.
vs. Automobile Service Assoc. (R. I. ) 179 A. 139, 144). (Emphasis ours).
In our opinion, the practice of law includes such appearance before the Patent Office,
the representation of applicants, oppositors, and other persons, and the prosecution of
their applications for patent, their oppositions thereto, or the enforcement of their rights
in patent cases. In the first place, although the transaction of business in the Patent
Office involves the use and application of technical and scientific knowledge and
training, still, all such business has to be rendered in accordance with the Patent Law,
as well as other laws, including the Rules and Regulations promulgated by the Patent
Office in accordance with law. Not only this, but practice before the Patent Office
involves the interpretation and application of other laws and legal principles, as well as
the existence of facts to be established in accordance with the law of evidence and
procedure. For instance: Section 8 of our Patent Law provides that an invention shall
not be patentable if it is contrary to public order or morals, or to public health or welfare.
Section 9 says that an invention shall not be considered new or patentable if it was
known or used by others in the Philippines before the invention thereof by the inventor
named in any printed publication in the Philippines or any foreign country more than
one year before the application for a patent therefor, or if it had been in public use or
on sale in the Philippines for more than one year before the application for the patent
therefor. Section 10 provides that the right to patent belongs to the true and actual
inventor, his heirs, legal representatives or assigns. Section 25 and 26 refer to
connection of any mistake in a patent. Section 28 enumerates the grounds for
cancellation of a patent; that although any person may apply for such cancellation,
under Section 29, the Solicitor General is authorized to petition for the cancellation of
a patent. Section 30 mentions the requirements of a petition for cancellation. Section
31 and 32 provide for a notice of hearing of the petition for cancellation of the patent by
the Director of Patents in case the said cancellation is warranted. Under Section 34, at
any time after the expiration of three years from the day the patent was granted, any
person patent on several grounds, such as, if the patented invention is not being worked
in the Philippines on a commercial scale, or if the demand for the patented article in the
Philippines on a commercial scale, or if the demand for the patented article in the
Philippines is not being met to an adequate extent and reasonable terms, or if by reason
of the patentee's refusal to grant a license on reasonable terms or by reason of the
condition attached by him to the license, purchase or use of the patented article or
working of the patented process or machine of production, the establishment of a new
trade or industry in the Philippines is prevented; or if the patent or invention relates to
food or medicine or is necessary to public health or public safety. All these things
involve the applications of laws, legal principles, practice and procedure. They call for
legal knowledge, training and experience for which a member of the bar has been
prepared.
In support of the proposition that much of the business and many of the act, orders and
decisions of the Patent Director involve questions of law or a reasonable and correct
evaluation of facts, the very Patent Law, Republic Act No. 165, Section 61, provides
that:
. . . . The applicant for a patent or for the registration of a design, any party to
a proceeding to cancel a patent or to obtain a compulsory license, and any
party to any other proceeding in the Office may appeal to the Supreme Court
from any final order or decision of the director.
In other words, the appeal is taken to this Tribunal. If the transaction of business in the
Patent Office and the acts, orders and decisions of the Patent Director involved
exclusively or mostly technical and scientific knowledge and training, then logically, the
appeal should be taken not to a court or judicial body, but rather to a board of scientists,
engineers or technical men, which is not the case.
Another aspect of the question involves the consideration of the nature of the functions
and acts of the Head of the Patent Office.
. . . . The Commissioner, in issuing or withholding patents, in reissues,
interferences, and extensions, exercises quasi-judicial functions. Patents are
public records, and it is the duty of the Commissioner to give authenticated
copies to any person, on payment of the legal fees. (40 Am. Jur. 537).
(Emphasis supplied).
. . . . The Commissioner has the only original initiatory jurisdiction that exists
up to the granting and delivering of a patent, and it is his duty to decide
whether the patent is new and whether it is the proper subject of a patent; and
his action in awarding or refusing a patent is a judicial function. In passing on
an application the commissioner should decide not only questions of law, but
also questions of fact, as whether there has been a prior public use or sale of
the article invented. . . . (60 C.J.S. 460). (Emphasis supplied).
The Director of Patents, exercising as he does judicial or quasi-judicial functions, it is
reasonable to hold that a member of the bar, because of his legal knowledge and
training, should be allowed to practice before the Patent Office, without further
examination or other qualification. Of course, the Director of Patents, if he deems it
advisable or necessary, may require that members of the bar practising before him
enlist the assistance of technical men and scientist in the preparation of papers and
documents, such as, the drawing or technical description of an invention or machine
sought to be patented, in the same way that a lawyer filing an application for the
registration of a parcel of land on behalf of his clients, is required to submit a plan and
technical description of said land, prepared by a licensed surveyor.
But respondent Director claims that he is expressly authorized by the law to require
persons desiring to practice or to do business before him to submit an examination,
even if they are already members of the bar. He contends that our Patent Law, Republic
Act No. 165, is patterned after the United States Patent Law; and of the United States
Patent Office in Patent Cases prescribes an examination similar to that which he
(respondent) has prescribed and scheduled. He invites our attention to the following
provisions of said Rules of Practice:
Registration of attorneys and agents. — A register of an attorneys and a
register agents are kept in the Patent Office on which are entered the names
of all persons recognized as entitled to represent applicants before the Patent
Office in the preparation and prosecution of applicants for patent. Registration
in the Patent Office under the provisions of these rules shall only entitle the
person registered to practice before the Patent Office.
(a) Attorney at law. — Any attorney at law in good standing admitted to
practice before any United States Court or the highest court of any State or
Territory of the United States who fulfills the requirements and complied with
the provisions of these rules may be admitted to practice before the Patent
Office and have his name entered on the register of attorneys.
xxx xxx xxx
(c) Requirement for registration. — No person will be admitted to practice and
register unless he shall apply to the Commissioner of Patents in writing on a
prescribed form supplied by the Commissioner and furnish all requested
information and material; and shall establish to the satisfaction of the
Commissioner that he is of good moral character and of good repute and
possessed of the legal and scientific and technical qualifications necessary to
enable him to render applicants for patent valuable service, and is otherwise
competent to advise and assist him in the presentation and prosecution of
their application before the Patent Office. In order that the Commissioner may
determine whether a person seeking to have his name placed upon either of
the registers has the qualifications specified, satisfactory proof of good moral
character and repute, and of sufficient basic training in scientific and technical
 matters must be submitted and an examination which is held from time to time
must be taken and passed. The taking of an examination may be waived in
the case of any person who has served for three years in the examining corps
of the Patent Office.
Respondent states that the promulgation of the Rules of Practice of the United States
Patent Office in Patent Cases is authorized by the United States Patent Law itself,
which reads as follows:
The Commissioner of Patents, subject to the approval of the Secretary of
Commerce may prescribe rules and regulations governing the recognition of
agents, attorneys, or other persons representing applicants or other
parties before his office, and may require of such persons, agents,
or attorneys, before being recognized as representatives of applicants or other
persons, that they shall show they are of good moral character and in good
repute, are possessed of the necessary qualifications to enable them to
render to applicants or other persons valuable service, and are likewise to
competent to advise and assist applicants or other persons in the presentation
or prosecution of their applications or other business before the Office. The
Commissioner of Patents may, after notice and opportunity for a hearing,
suspend or exclude, either generally or in any particular case from further
practice before his office any person, agent or attorney shown to be
incompetent or disreputable, or guilty of gross misconduct, or who refuses to
comply with the said rules and regulations, or who shall, with intent to defraud
in any matter, deceive, mislead, or threaten any applicant or prospective
applicant, or other person having immediate or prospective applicant, or other
person having immediate or prospective business before the office, by word,
circular, letter, or by advertising. The reasons for any such suspension or
exclusion shall be duly recorded. The action of the Commissioner may be
reviewed upon the petition of the person so refused recognition or so
suspended by the district court of the United States for the District of Columbia
under such conditions and upon such proceedings as the said court may by
its rules determine. (Emphasis supplied)
Respondent Director concludes that Section 78 of Republic Act No. 165 being similar
to the provisions of law just reproduced, then he is authorized to prescribe the rules
and regulations requiring that persons desiring to practice before him should submit to
and pass an examination. We reproduce said Section 78, Republic Act No. 165, for
purposes of comparison:
SEC. 78. Rules and regulations. — The Director subject to the approval of the
Secretary of Justice, shall promulgate the necessary rules and regulations,
not inconsistent with law, for the conduct of all business in the Patent Office.
The above provisions of Section 78 certainly and by far, are different from the provisions
of the United States Patent Law as regards authority to hold examinations to determine
the qualifications of those allowed to practice before the Patent Office. While the U.S.
Patent Law authorizes the Commissioner of Patents to require attorneys to show that
they possess the necessary qualifications and competence to render valuable service
to and advise and assist their clients in patent cases, which showing may take the form
of a test or examination to be held by the Commissioner, our Patent Law, Section 78,
is silent on this important point. Our attention has not been called to any express
provision of our Patent Law, giving such authority to determine the qualifications of
persons allowed to practice before the Patent Office.
Section 551 of the Revised Administrative Code authorizes every chief of bureau to
prescribe forms and make regulations or general orders not inconsistent with law, to
secure the harmonious and efficient administration of his branch of the service and to
carry into full effect the laws relating to matters within the jurisdiction of his bureau.
Section 608 of Republic Act 1937, known as the Tariff and Customs Code of the
Philippines, provides that the Commissioner of Customs shall, subject to the approval
of the Department Head, makes all rules and regulations necessary to enforce the
provisions of said code. Section 338 of the National Internal Revenue Code,
Commonwealth Act No. 466 as amended, states that the Secretary of Finance, upon
recommendation of the Collector of Internal Revenue, shall promulgate all needful rules
and regulations for the effective enforcement of the provisions of the code. We
understand that rules and regulations have been promulgated not only for the Bureau
of Customs and Internal Revenue, but also for other bureaus of the Government, to
govern the transaction of business in and to enforce the law for said bureaus.
Were we to allow the Patent Office, in the absence of an express and clear provision
of law giving the necessary sanction, to require lawyers to submit to and pass on
examination prescribed by it before they are allowed to practice before said Patent
Office, then there would be no reason why other bureaus specially the Bureau of
Internal Revenue and Customs, where the business in the same area are more or less
complicated, such as the presentation of books of accounts, balance sheets, etc.,
assessments exemptions, depreciation, these as regards the Bureau of Internal
Revenue, and the classification of goods, imposition of customs duties, seizures,
confiscation, etc., as regards the Bureau of Customs, may not also require that any
lawyer practising before them or otherwise transacting business with them on behalf of
clients, shall first pass an examination to qualify.
In conclusion, we hold that under the present law, members of the Philippine Bar
authorized by this Tribunal to practice law, and in good standing, may practice their
profession before the Patent Office, for the reason that much of the business in said
office involves the interpretation and determination of the scope and application of the
Patent Law and other laws applicable, as well as the presentation of evidence to
establish facts involved; that part of the functions of the Patent director are judicial or
quasi-judicial, so much so that appeals from his orders and decisions are, under the
law, taken to the Supreme Court.
For the foregoing reasons, the petition for prohibition is granted and the respondent
Director is hereby prohibited from requiring members of the Philippine Bar to submit to
an examination or tests and pass the same before being permitted to appear and
practice before the Patent Office. No costs.
A.C. No. 5738 February 19, 2008
WILFREDO M. CATU, complainant,
vs.
ATTY. VICENTE G. RELLOSA, respondent.
RESOLUTION
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a lot1 and the building erected thereon
located at 959 San Andres Street, Malate, Manila. His mother and brother, Regina
Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu2 and
Antonio Pastor3 of one of the units in the building. The latter ignored demands for
them to vacate the premises. Thus, a complaint was initiated against them in
the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of
Manila4 where the parties reside.
Respondent, as punong barangay of Barangay 723, summoned the parties to
conciliation meetings.5 When the parties failed to arrive at an amicable settlement,
respondent issued a certification for the filing of the appropriate action in court.
Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and
Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered his
appearance as counsel for the defendants in that case. Because of this, complainant
filed the instant administrative complaint,6 claiming that respondent committed an act
of impropriety as a lawyer and as a public officer when he stood as counsel for the
defendants despite the fact that he presided over the conciliation proceedings
between the litigants as punong barangay.
In his defense, respondent claimed that one of his duties as punong barangay was to
hear complaints referred to the barangay's Lupong Tagapamayapa. As such, he
heard the complaint of Regina and Antonio against Elizabeth and Pastor. As head of
the Lupon, he performed his task with utmost objectivity, without bias or partiality
towards any of the parties. The parties, however, were not able to amicably settle
their dispute and Regina and Antonio filed the ejectment case. It was then that
Elizabeth sought his legal assistance. He acceded to her request. He handled her
case for free because she was financially distressed and he wanted to prevent the
commission of a patent injustice against her.
The complaint was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. As there was no factual issue to thresh
out, the IBP's Commission on Bar Discipline (CBD) required the parties to submit their
respective position papers. After evaluating the contentions of the parties, the IBP-
CBD found sufficient ground to discipline respondent.7
According to the IBP-CBD, respondent admitted that, as punong barangay, he
presided over the conciliation proceedings and heard the complaint of Regina and
Antonio against Elizabeth and Pastor. Subsequently, however, he represented
Elizabeth and Pastor in the ejectment case filed against them by Regina and Antonio.
In the course thereof, he prepared and signed pleadings including the answer with
counterclaim, pre-trial brief, position paper and notice of appeal. By so doing,
respondent violated Rule 6.03 of the Code of Professional Responsibility:
Rule 6.03 - A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he
intervened while in said service.
Furthermore, as an elective official, respondent contravened the prohibition under
Section 7(b)(2) of RA 6713:8
SEC. 7. Prohibited Acts and Transactions. - In addition to acts and
omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited acts
and transactions of any public official ands employee and are hereby
declared to be unlawful:
xxx xxx xxx
(b) Outside employment and other activities related thereto. - Public officials
and employees during their incumbency shall not:
xxx xxx xxx
(2) Engage in the private practice of profession unless
authorized by the Constitution or law, provided that such
practice will not conflict or tend to conflict with their official
functions; xxx (emphasis supplied)
According to the IBP-CBD, respondent's violation of this prohibition constituted a
breach of Canon 1 of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND, PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES. (emphasis supplied)
For these infractions, the IBP-CBD recommended the respondent's suspension from
the practice of law for one month with a stern warning that the commission of the
same or similar act will be dealt with more severely.9 This was adopted and approved
by the IBP Board of Governors.10
We modify the foregoing findings regarding the transgression of respondent as well
as the recommendation on the imposable penalty.
Rule 6.03 of the Code of Professional Responsibility Applies Only to Former
Government Lawyers
Respondent cannot be found liable for violation of Rule 6.03 of the Code of
Professional Responsibility. As worded, that Rule applies only to a lawyer who
has left government service and in connection "with any matter in which he intervened
while in said service." In PCGG v. Sandiganbayan,11 we ruled that Rule
6.03 prohibits former government lawyers from accepting "engagement or
employment in connection with any matter in which [they] had intervened while in said
service."
Respondent was an incumbent punong barangay at the time he committed the act
complained of. Therefore, he was not covered by that provision.
Section 90 of RA 7160, Not Section 7(b)(2) of RA 6713, Governs The Practice of
Profession of Elective Local Government Officials
Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their
incumbency, from engaging in the private practice of their profession "unless
authorized by the Constitution or law, provided that such practice will not conflict or
tend to conflict with their official functions." This is the general law which applies to all
public officials and employees.
For elective local government officials, Section 90 of RA 716012 governs:
SEC. 90. Practice of Profession. - (a) All governors, city and municipal
mayors are prohibited from practicing their profession or engaging in any
occupation other than the exercise of their functions as local chief
executives.
(b) Sanggunian members may practice their professions, engage in any
occupation, or teach in schools except during session hours: Provided,
That sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a
local government unit or any office, agency, or instrumentality of the
government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or
employee of the national or local government is accused of an
offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an
official; and
(4) Use property and personnel of the Government except when
the sanggunian member concerned is defending the interest of the
Government.
(c) Doctors of medicine may practice their profession even during official
hours of work only on occasions of emergency: Provided, That the officials
concerned do not derive monetary compensation therefrom.
This is a special provision that applies specifically to the practice of profession by
elective local officials. As a special law with a definite scope (that is, the practice of
profession by elective local officials), it constitutes an exception to Section 7(b)(2) of
RA 6713, the general law on engaging in the private practice of profession by public
officials and employees. Lex specialibus derogat generalibus.13
Under RA 7160, elective local officials of provinces, cities, municipalities and
barangays are the following: the governor, the vice governor and members of
the sangguniang panlalawigan for provinces; the city mayor, the city vice mayor and
the members of the sangguniang panlungsod for cities; the municipal mayor, the
municipal vice mayor and the members of the sangguniang bayan for municipalities
and the punong barangay, the members of the sangguniang barangay and the
members of the sangguniang kabataan for barangays.
Of these elective local officials, governors, city mayors and municipal mayors are
prohibited from practicing their profession or engaging in any occupation other than
the exercise of their functions as local chief executives. This is because they are
required to render full time service. They should therefore devote all their time and
attention to the performance of their official duties.
On the other hand, members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan may practice their professions, engage in any
occupation, or teach in schools except during session hours. In other words, they may
practice their professions, engage in any occupation, or teach in schools outside their
session hours. Unlike governors, city mayors and municipal mayors, members of
the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayan are
required to hold regular sessions only at least once a week.14 Since the law itself
grants them the authority to practice their professions, engage in any occupation or
teach in schools outside session hours, there is no longer any need for them to
secure prior permission or authorization from any other person or office for any of
these purposes.
While, as already discussed, certain local elective officials (like governors, mayors,
provincial board members and councilors) are expressly subjected to a total or partial
proscription to practice their profession or engage in any occupation, no such
interdiction is made on the punong barangay and the members of the sangguniang
barangay. Expressio unius est exclusio alterius.15 Since they are excluded from any
prohibition, the presumption is that they are allowed to practice their profession. And
this stands to reason because they are not mandated to serve full time. In fact,
the sangguniang barangay is supposed to hold regular sessions only twice a month.16
Accordingly, as punong barangay, respondent was not forbidden to practice his
profession. However, he should have procured prior permission or authorization from
the head of his Department, as required by civil service regulations.
A Lawyer In Government Service Who Is Not Prohibited To Practice Law Must
Secure Prior Authority From The Head Of His Department
A civil service officer or employee whose responsibilities do not require his time to be
fully at the disposal of the government can engage in the private practice of law only
with the written permission of the head of the department concerned.17 Section 12,
Rule XVIII of the Revised Civil Service Rules provides:
Sec. 12. No officer or employee shall engage directly in any private
business, vocation, or profession or be connected with any commercial,
credit, agricultural, or industrial undertaking without a written permission
from the head of the Department: Provided, That this prohibition will be
absolute in the case of those officers and employees whose duties and
responsibilities require that their entire time be at the disposal of the
Government; Provided, further, That if an employee is granted permission to
engage in outside activities, time so devoted outside of office hours should
be fixed by the agency to the end that it will not impair in any way the
efficiency of the officer or employee: And provided, finally, that no permission
is necessary in the case of investments, made by an officer or employee,
which do not involve real or apparent conflict between his private interests
and public duties, or in any way influence him in the discharge of his duties,
and he shall not take part in the management of the enterprise or become an
officer of the board of directors. (emphasis supplied)
As punong barangay, respondent should have therefore obtained the prior written
permission of the Secretary of Interior and Local Government before he entered his
appearance as counsel for Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil
Service Rules constitutes a violation of his oath as a lawyer: to obey the laws.
Lawyers are servants of the law, vires legis, men of the law. Their paramount duty to
society is to obey the law and promote respect for it. To underscore the primacy and
importance of this duty, it is enshrined as the first canon of the Code of Professional
Responsibility.
In acting as counsel for a party without first securing the required written permission,
respondent not only engaged in the unauthorized practice of law but also violated civil
service rules which is a breach of Rule 1.01 of the Code of Professional
Responsibility:
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. (emphasis supplied)
For not living up to his oath as well as for not complying with the exacting ethical
standards of the legal profession, respondent failed to comply with Canon 7 of the
Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied)
Indeed, a lawyer who disobeys the law disrespects it. In so doing, he disregards legal
ethics and disgraces the dignity of the legal profession.
Public confidence in the law and in lawyers may be eroded by the irresponsible and
improper conduct of a member of the bar.18 Every lawyer should act and comport
himself in a manner that promotes public confidence in the integrity of the legal
profession.19
A member of the bar may be disbarred or suspended from his office as an attorney for
violation of the lawyer's oath20 and/or for breach of the ethics of the legal profession
as embodied in the Code of Professional Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of
professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and
Rule 1.01 of the Code of Professional Responsibility. He is
therefore SUSPENDED from the practice of law for a period of six months effective
from his receipt of this resolution. He is sternly WARNED that any repetition of similar
acts shall be dealt with more severely.
Respondent is strongly advised to look up and take to heart the meaning of the
word delicadeza.
Let a copy of this resolution be furnished the Office of the Bar Confidant and entered
into the records of respondent Atty. Vicente G. Rellosa. The Office of the Court
Administrator shall furnish copies to all the courts of the land for their information and
guidance.
SO ORDERED.
G.R. No. 1203 May 15, 1903
In the matter of the suspension of HOWARD D. TERRELL from the practice of
law.
Solicitor-General Araneta for Government.
W. A. Kincaid for defendant.
PER CURIAM:
Howard D. Terrell, an attorney-at-law, was ordered to show cause in the Court of First
Instance, in the city of Manila, on the 5th day of February, 1903, why he should not be
suspended as a member of the bar of the city of Manila for the reasons:
First, that he had assisted in the organization of the "Centro Bellas Artes" Club, after
he had been notified that the said organization was made for the purpose of evading
the law then in force in said city; and,
Secondly, for acting as attorney for said "Centro Bellas Artes" during the time of and
after its organization, which organization was known to him to be created for the
purpose of evading the law.
The accused appeared on the return day, and by his counsel, W. A. Kincaid, made
answer to these charges, denying the same, and filed affidavits in answer thereto. After
reading testimony given by said Howard D. Terrell, in the case of the United States vs.
H. D. Terrell,1 wherein he was charged with estafa, and after reading the said affidavits
in his behalf, and hearing his counsel, the court below found, and decided as a fact,
that the charges aforesaid made against Howard D. Terrell were true, and thereupon
made an order suspending him from his office as a lawyer in the Philippine Islands, and
directed the clerk of the court to transmit to this court a certified copy of the order of
suspension, as well as a full statement of the facts upon which the same was based.
We have carefully considered these facts, and have reached the conclusion that they
were such as to justify the court below in arriving at the conclusion that the knowledge
and acts of the accused in connection with the organization of the "Centro Bellas Artes"
Club were of such a nature and character as to warrant his suspension from practice.
The promoting of organizations, with knowledge of their objects, for the purpose of
violating or evading the laws against crime constitutes such misconduct on the part of
an attorney, an officer of the court, as amounts to malpractice or gross misconduct in
his office, and for which he may be removed or suspended. (Code of Civil Procedure,
sec. 21.) The assisting of a client in a scheme which the attorney knows to be dishonest,
or the conniving at a violation of law, are acts which justify disbarment.
In this case, however, inasmuch as the defendant in the case of the United
States, vs. Terrell was acquitted on the charge of estafa, and has not, therefore, been
convicted of crime, and as the acts with which he is charged in this proceeding, while
unprofessional and hence to be condemned, are not criminal in their nature, we are of
opinion that the ends of justice will be served by the suspension of said Howard D.
Terrell from the practice of law in the Philippine Islands for the term of one year from
the 7th day of February, 1903.
It is therefore directed that the said Howard D. Terrell be suspended from the practice
of law for a term of one year from February 7, 1903. It is so ordered.
A.M. No. L-363 July 31, 1962
IN RE: DISBARMENT PROCEEDINGS AGAINST ATTY. DIOSDADO Q.
GUTIERREZ, respondent.
Victoriano A. Savellano for complaint.
Nestor M. Andrada for respondent.
MAKALINTAL, J.:
Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar, admitted to it on
October 5, 1945. In criminal case No. R-793 of the Court of First Instance of Oriental
Mindoro he was convicted of the murder of Filemon Samaco, former municipal mayor
of Calapan, and together with his co-conspirators was sentenced to the penalty of
death. Upon review by this Court the judgment of conviction was affirmed on June 30,
1956 (G.R. No. L-17101), but the penalty was changed to reclusion perpetua. After
serving a portion of the sentence respondent was granted a conditional pardon by the
President on August 19, 1958. The unexecuted portion of the prison term was remitted
"on condition that he shall not again violate any of the penal laws of the Philippines."
On October 9, 1958 the widow of the deceased Filemon Samaco, victim in the murder
case, filed a verified complaint before this Court praying that respondent be removed
from the roll of lawyers pursuant to Rule 127, section 5. Respondent presented his
answer in due time, admitting the facts alleged by complainant regarding pardon in
defense, on the authority of the decision of this Court in the case of In re Lontok, 43
Phil. 293.
Under section 5 of Rule 127, a member of the bar may be removed suspended from
his office as attorney by the Supreme Court by reason of his conviction of a crime
insolving moral turpitude. Murder is, without doubt, such a crime. The term "moral
turpitude" includes everything which is done contrary to justice, honesty, modesty or
good morals. In re Carlos S. Basa, 41 Phil. 275. As used in disbarment statutes, it
means an act of baseness, vileness, or depravity in the private and social duties which
a man owes to his fellowmen or to society in general, contrary to the accepted rule of
right and duty between man and man. State ex rel. Conklin v. Buckingham, 84 P. 2nd
49; 5 Am. Jur. Sec. 279. pp. 428-429.
The only question to be resolved is whether or not the conditional pardon extended to
respondent places him beyond the scope of the rule on disbarment aforecited. Reliance
is placed by him squarely on the Lontok case. The respondent therein was convicted
of bigamy and thereafter pardoned by the Governor-General. In a subsequent viction,
this Court decided in his favor and held: "When proceedings to strike an attorney's
name from the rolls the fact of a conviction for a felony ground for disbarment, it has
been held that a pardon operates to wipe out the conviction and is a bar to any
proceeding for the disbarment of the attorney after the pardon has been granted."
It is our view that the ruling does not govern the question now before us. In making it
the Court proceeded on the assumption that the pardon granted to respondent Lontok
was absolute. This is implicit in the ratio decidendi of the case, particularly in the
citations to support it, namely. In Re Emmons, 29 Cal. App. 121; Scott vs. State, 6 Tex.
Civ. App. 343; and Ex parte Garland, 4 Wall, 380. Thus in Scott vs. State the court said:
We are of opinion that after received an unconditional pardon the record of
the felony conviction could no longer be used as a basis for the proceeding
provided for in article 226. The record, when offered in evidence, was met with
an unconditional pardon, and could not, therefore, properly be said to afford
"proof of a conviction of any felony." Having been thus cancelled, all its force
as a felony conviction was taken away. A pardon falling short of this would not
 be a pardon, according to the judicial construction which that act of executive
grace was received. Ex parte Garland, 4 Wall, 344; Knote v. U.S., 95 U.S.
149, and cases there cited; Young v. Young, 61 Tex. 191.
And the portion of the decision in Ex parte Garland quoted with approval in the Lontok
case is as follows:
A pardon reaches both the punishment prescribed for the offense and the guilt
of the offender; and when the pardon is full, it releases the punishment and
blots out the existence of guilt, so that in the eye of the law the offender is as
innocent as if he had never committed the offense. It granted before
conviction, it prevents any of the penalties and disabilities, consequent upon
conviction, from attaching; if granted after conviction, it removes the penalties
and disabilities, and restores him to all his civil rights it makes him, as it were,
a new man, and gives him a new credit and capacity.
The pardon granted to respondent here is not absolute but conditional, and merely
remitted the unexecuted portion of his term. It does not reach the offense itself, unlike
that in Ex parte Garland, which was "a full pardon and amnesty for all offense by him
committed in connection with rebellion (civil war) against government of the United
States."
The foregoing considerations rendered In re Lontok are inapplicable here. Respondent
Gutierrez must be judged upon the fact of his conviction for murder without regard to
the pardon he invokes in defense. The crime was qualified by treachery and aggravated
by its having been committed in hand, by taking advantage of his official position
(respondent being municipal mayor at the time) and with the use of motor vehicle.
People vs. Diosdado Gutierrez, supra. The degree of moral turpitude involved is such
as to justify his being purged from the profession.
The practice of law is a privilege accorded only to those who measure up to certain
rigid standards of mental and moral fitness. For the admission of a candidate to the bar
the Rules of Court not only prescribe a test of academic preparation but require
satisfactory testimonials of good moral character. These standards are neither
dispensed with nor lowered after admission: the lawyer must continue to adhere to them
or else incur the risk of suspension or removal. As stated in Ex parte Wall, 107 U.S.
263, 27 Law ed., 552, 556: "Of all classes and professions, the lawyer is most sacredly
bound to uphold the laws. He is their sworn servant; and for him, of all men in the world,
to repudiate and override the laws, to trample them under foot and to ignore the very
bonds of society, argues recreancy to his position and office and sets a pernicious
example to the insubordinate and dangerous elements of the body politic.
WHEREFORE, pursuant to Rule 127, Section 5, and considering the nature of the
crime for which respondent Diosdado Q. Gutierrez has been convicted, he is ordered
disbarred and his name stricken from the roll of lawyers.
Bengzon, C.J., Labrador, Concepcion, Barrera, Paredes, Dizon and Regala, JJ.,
concur.
Padilla, J., took no part.
A.M. No. P-06-2177 June 27, 2006
(Formerly A.M. No. 06-4-268-RTC)
RE: REPORT ON THE FINANCIAL AUDIT CONDUCTED ON THE BOOKS OF
ACCOUNTS OF ATTY. RAQUEL G. KHO, CLERK OF COURT IV, REGIONAL
TRIAL COURT, ORAS, EASTERN SAMAR .
RESOLUTION
CORONA, J.:
This administrative case is a result of the audit conducted by the Office of the Court
Administrator (OCA) of the books of accounts of Atty. Raquel G. Kho, former clerk of
court of the Regional Trial Court, Branch 5, Oras, Eastern Samar. The audit covered
the period March 1985 to October 31, 2005.
The OCA, in its memorandum dated April 18, 2006, had the following findings: (1) there
was a shortage of P545.00 in remittances to the General Fund; (2) a cash shortage
of P24.00 in the Sheriff’s General Fund; and (3) Atty. Kho did not deposit on time in the
authorized depository bank the collections for the Fiduciary Fund (P60,000) and
Special Allowance for the Judiciary Fund (P5,000). It also noted that Atty. Kho had
already restituted the P545.00 and P24.00 cash shortages.
Regarding the delayed remittance of the amount of P60,000 representing the amount
of a confiscated cash bond, Kho explained that the Land Bank of the Philippines (the
authorized depository bank) had no branch in their locality. The nearest Land Bank
branch was approximately 95 kilometers away so it was his practice to keep his
collections in the court’s safety vault.
On the other hand, the amount of P5,000 was collected as filing fee for an election
protest. According to Kho, this was collected under Rule 40 of the Commission on
Elections (COMELEC) Rules of Procedure. In defense, he presented a letter addressed
to Senior Deputy Court Administrator Zenaida N. Elepaño inquiring where to remit said
amount. The OCA, through Deputy Court Administrator Jose P. Perez, responded that
pending official instructions on how to manage the money collected under Rule 40 of
the COMELEC Rules, it was to be treated as trust deposits and temporarily deposited
in the Fiduciary Fund.1 However, Kho failed to do this.
Consequently, the audit team advised him to deposit the P5,000 in the Special
Allowance for the Judiciary Fund as provided under Sec. 21 (g) of the amended
Administrative Circular No. 35-2004.2 He was also advised to deposit the
confiscated P60,000 cash bond in the Judicial Development Fund account. He
complied with both directives on November 15, 2005.
On January 26, 2006, the OCA received a letter-complaint with the information that
Kho, along with his alleged common-law-wife, stenographer Riza Amor L. Libanan, was
engaged in lending out to court employees money in his possession as clerk of court,
personally deriving profit from the interest earned.
The OCA found Kho liable for violating OCA Circular No. 8A-933 dated April 21, 1993
when he kept the funds in a safety vault for more than a year. All clerks of lower courts
are supposed to deposit all collections from bail bonds, rental deposits and other
fiduciary collections with the Land Bank upon receipt thereof. Thus, it recommended
that (1) the audit report be docketed as a regular administrative complaint against Kho
and (2) a fine in the amount of P10,000 be imposed on him.
We agree with the OCA’s recommendations.
trust.4
Public office is a public Those charged with the dispensation of justice, from the
justices and judges to the lowliest clerks, should be circumscribed with the heavy
burden of responsibility.5 Not only must their conduct at all times be characterized by
propriety and decorum but, above all else, it must be beyond suspicion.6
A clerk of court, aside from being the custodian of the court’s funds, revenues, property
and premises, is also entrusted with the primary responsibility of correctly and
effectively implementing regulations regarding fiduciary funds.7 Safekeeping of funds
and collections is essential to an orderly administration of justice and no protestation of
good faith can override the mandatory nature of the circulars designed to promote full
accountability for government funds.8 Clerks of court have always been reminded of
their duty to immediately deposit the various funds received by them to the authorized
government depositories for they are not supposed to keep funds in their custody.9
Kho failed to make a timely turn-over of cash deposited with him. This was inexcusable
because he could have purchased postal money orders from the local post office
payable to the chief accountant, Accounting Division, FMO-OCA. The money could
have earned interest had he not kept them in the vault for over a year.10 As found by
the OCA, although Kho had restituted all his cash accountabilities, he was nevertheless
liable for failing to immediately deposit the collections for the judiciary funds.
The failure to remit the funds in due time constitutes gross dishonesty and gross
misconduct. It diminishes the faith of the people in the Judiciary.11 Dishonesty, being in
the nature of a grave offense, carries the extreme penalty of dismissal from the service
even if committed for the first time. However, Kho showed remorse by immediately
restituting the cash shortages and complying with the directives of the audit team. And
considering that this is his first offense, we find that the penalty of P10,000 fine is
sufficient.
We note that Kho has already transferred to the Department of Justice. However, it
neither renders this matter moot nor frees him from liability.
Moreover, his misconduct reflects on his fitness as a member of the bar. His
malfeasance prima facie contravenes Canon 1, 12 Rule 1.0113 of the Code of
Professional Responsibility. Hence, he should explain why no further disciplinary
sanction should be imposed on him.
WHEREFORE, Atty. Raquel G. Kho is hereby found GUILTY of gross misconduct for
his failure to make timely remittance of judiciary funds in his custody. He is ordered to
pay a FINE of P10,000 within ten (10) days from receipt of this resolution.
Atty. Kho is further ordered to SHOW CAUSE within the same period why he should
not be disciplined for such misconduct as a lawyer and as an officer of the Court.
SO ORDERED.
A.C. No. 4904 August 12, 2004
ANA A. CHUA and MARCELINA HSIA, complainants,
vs.
ATTY. SIMEON M. MESINA, JR., respondent.
DECISION
PER CURIAM:
By a verified complaint1 received by the Office of the Bar Confidant on May 5,
1998,2 Ana Alvaran Chua and Marcelina Hsia administratively charged Atty. Simeon M.
Mesina, Jr., for breach of professional ethics, gross professional misconduct, and
culpable malpractice.
As related by complainants, the following facts gave rise to the filing of the complaint.
Respondent was, for years, Ana Alvaran Chua and her now deceased husband Chua
Yap An’s legal counsel and adviser upon whom they reposed trust and confidence.
They were in fact lessees of a building situated at Burgos Street, Cabanatuan City
(Burgos property) owned by respondent’s family, and another property containing an
area of 854 sq. m., situated at Melencio Street, Cabanatuan City (Melencio property),
also owned by respondent’s family whereon they (spouses Chua) constructed their
house. These two properties were mortgaged by the registered owner, respondent’s
mother Felicisima Melencio vda. de Mesina (Mrs. Mesina), in favor of the Planters
Development Bank to secure a loan she obtained.
As Mrs. Mesina failed to meet her obligation to the bank, respondent convinced
complainant Ana Chua and her husband to help Mrs. Mesina by way of settling her
obligation in consideration for which the Melencio property would be sold to them
at P850.00/sq. m.
Accommodating respondent’s request, the spouses Chua and their business partner,
herein co-complainant Marcelina Hsia, settled Mrs. Mesina’s bank obligation in the
amount of P983,125.40.
A Deed of Absolute Sale dated January 19, 19853 conveying the Melencio property
for P85,400.00 was thereafter executed by Mrs. Mesina, whose name appears therein
as "Felicisima M. Melencio," in favor of complainants.
As complainants were later apprised of the amount of capital gains tax they were to
pay, they consulted respondent about it. Respondent thus suggested to them that
another Deed of Absolute Sale should be executed, antedated to 1979 before the
effectivity of the law mandating the payment of capital gains tax. As suggested by
respondent, another Deed of Absolute Sale antedated February 9, 19794 was executed
by Mrs. Mesina, whose name again appears therein as "Felicisima M. Melencio," in
favor of complainants wherein the purchase price was also indicated to be P85,400.00.
After liquidating the advances made by the Chua spouses "in the redemption of the
MESINA properties," Mrs. Mesina was found to have "an existing balance" due the
spouses in the amount of P400,000.00, on account of which they advised respondent
about it. Respondent, by Affidavit of February 18, 1986, "acknowledged such
obligation" to be his and undertook to settle it within two years.
Complainants were subsequently issued on January 21, 1986 a title over the Melencio
property.
Not long after the execution of the February 9, 1979 Deed of Absolute Sale or in
February 1986, one Juanito Tecson (Tecson) filed an Affidavit5 dated February 20,
1986 before the Cabanatuan City Prosecutor’s Office charging respondent’s mother,
the spouses Chua, Marcelina Hsia and the two witnesses to the said Deed of Absolute
Sale, for Falsification of Public Document and violation of the Internal Revenue Code.
In his complaint affidavit, Tecson alleged that he was also a lessee of the Melencio
property and was, along with the Chua spouses, supposed to purchase it but that
contrary to their agreement, the property was sold only to complainant and her co-
complainant, to his exclusion. Tecson went on to relate that the February 9, 1979 Deed
of Absolute Sale did not reflect the true value of the Melencio property and was
antedated "to evade payment of capital gains tax."
Tecson submitted documents showing that indeed the July 9, 1979 Deed of Absolute
Sale was antedated.
Respondent thereupon hatched a plan to dodge the falsification charge against Mrs.
Mesina et al. He proposed to complainants that they would simulate a deed of sale of
the Melencio property wherein complainants would resell it to Mrs. Mesina.
Heeding the proposal of respondent, complainants executed a Deed of Absolute Sale
dated April 1, 19866 conveying to "Felicisima M. Melencio" the Melencio property
for P85,400.00.
A new title was accordingly issued on April 4, 1986 in the name of "Felicisima M.
Melencio," the owner’s copy of which was entrusted to complainants.
Tecson subsequently filed before the Cabanatuan City Prosecutor’s Office an Affidavit
of Desistance dated September 5, 19867 alleging that his filing of the criminal complaint
"arose out of mere misunderstanding and difference" with herein complainants and their
co-respondents and he had no sufficient evidence against them.
Some years later or on May 2, 1990, respondent approached complainants and told
them that he would borrow the owner’s copy of Mrs. Mesina’s title with the undertaking
that he would, in four months, let Mrs. Mesina execute a deed of sale over the Melencio
property in complainants’ favor. In fact, respondent gave complainants a written
undertaking8 dated May 2, 1990 reading:
Received the owner’s duplicate copy of TCT No. 4383 issued by the Register
of Deeds, Cabanatuan City registered in the name of Felicisima Mesina,
widow, consisting of about 854 square meters more or less located at calle
Melencio, Cabanatuan City from Mrs. Ana Chua and Marcelina Hsia.
I promise to and undertake to have the Deed of Sale of the above-mentioned
property in favor of Ana Chua and Marcelina Hsia to be signed by
Mrs. Felicisima Mesina, within four (4) months from date hereof so that the
above-mentioned property and title maybe transferred in the name of Ana
Chua and Macelina Hsia. (Underscoring supplied)
In the meantime, Mrs. Mesina died "in the early part of 1991."
Despite respondent’s repeated promises "to effect" the transfer of title in complainants’
name, he failed to do so. Complainants were later informed that the Melencio property
was being offered for sale to the public.
The spouses Chua and complainant Marcelina Hsia thus filed on August 24, 1992 a
Complaint9 against respondent and his two siblings before the Regional Trial Court
(RTC) of Nueva Ecija in Cabanatuan City, for "Declaration of Nullity of Sale and
Reconveyance of Real Property."
As of the time of the filing of the present administrative complaint in 1998, the civil case
against the Mesina siblings was still pending.
This Court, by Resolution of July 13, 1998, 10 directed respondent to file Comment on
the complaint within ten days.
By Resolution of December 2, 1998,11 this Court, noting that the copy of the Resolution
of July 13, 1998 requiring respondent to comment on the complaint sent to him at his
office address at S. M. Mesina Law Office, 30 Jupiter St., Paseo de Roxas, Bel-Air
Subd., Makati City was returned unserved with the notation "Moved," considered the
Resolution of July 13, 1998 served on respondent by substituted service pursuant to
Rule 13, Section 8 of the 1997 Rules of Civil Procedure. Respondent was accordingly
deemed to have waived the filing of the required comment.
By the same Resolution of December 2, 1998, the case was referred to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation within ninety
days.
The IBP, acting on the complaint, issued a notice of hearing on September 14,
2001,12 copy of which was sent to respondent at his office address via registered mail,
covered by Registry Receipt No. 2605 of the Meralco Post Office.13 On the scheduled
date of hearing, complainants personally appeared with their counsel. Respondent
failed to show up.
Given the length of time that the case remained pending from its filing, the IBP
Commission on Bar Discipline, by Order of October 12, 2001,14 directed complainants
to just file their position paper with affidavits and supporting documents in lieu of actual
presentation of witnesses and to serve a copy thereof to respondent at his last known
address.
In compliance with the IBP Order, complainants filed on April 1, 2002 their position
paper,15 annexed to which were photocopies of: 1) a May 5, 1993 Certification16 issued
by the Metrobank Cabanatuan Branch certifying that "it issued the demand drafts to the
payees enumerated below, which were debited from the account of Mr. Chua Yap An
under Savings Account No. 760:
D/D Payee Amount Date of
No. Issue
214597 Planters Dev. Bank P 805,299.54 12-19-85
214760 Planters Dev. Bank 100,000.00 01-14-86
214761 Atty. Simeon Mesina, 77,826.10 01-14-86";
Jr.
2) Affidavit dated February 18, 198617 of respondent acknowledging a debt
of P400,000.00 to complainant Ana Alvaran Chua and promising to pay interest thereon
within 2 years to commence upon the signing thereof [February 16, 1998] and, in the
event no partial or full payment of the principal is made within 2 years, Ana Alvaran
Chua "is under no obligation to pay any lease rentals over the lot situated in Burgos
Avenue, Cabanatuan City where the Oceanic Hardware Bldg. is erected;" 3) Deed of
Absolute Sale dated January 19, 1985 18 and 4) Deed of Absolute Sale dated July 9,
1979,19 both executed by "Felicisima M. Melencio" in favor of complainant; 5) TCT No.
T-4811420 issued by the Cabanatuan City in the name of complainants on January 21,
1986; 6) Affidavit of Juanito C. Tecson21 dated January 20, 1986 charging complainants
et al. for Falsification of Public Documents; 7) Deed of Absolute Sale dated April 1,
1986 executed by complainants in favor of Mrs. Mesina;22 and 8) TCT No. T-
48383issued on April 4, 1986 in the name of "Felicisima M. Melencio;"23 and 9)
Complaint of spouses Chua Yap An and Ana Alvaran Chua and Marcelina Hsia, for
Declaration of Nullity of Deed of Sale and Reconveyance of Real Property against
respondent and his two siblings.24
A copy of complainant’s position paper was sent on March 18, 2002 to respondent at
his office address by registered mail covered by Registry Receipt No. 5278.25 There is
no showing if respondent received this mail matter.
The IBP once more scheduled, by notice of December 13, 2002,26 a hearing of the
administrative case to January 15, 2003, copy of which notice was sent to respondent
at his office address by registered mail covered by Registry Receipt No. 2953 issued
by the Meralco Post Office.27
On the scheduled hearing on January 15, 2003, the IBP Investigating Commissioner,
by Order of even date,28 noted the presence of complainants, and the absence of
respondent, copy of the notice of hearing to whom was returned unserved with the
notation "RTS-Moved." The case was thereupon deemed submitted for report and
recommendation.
On June 21, 2003, the IBP passed Resolution No. XV-2003-34229 adopting and
approving the report and recommendation of Atty. Rebecca Villanueva-Maala, the
Investigating Commissioner of the case.
In her March 3, 2003 Report and Recommendation,30 Investigation Commissioner
Maala observed as follows:
A lawyer should not engage or participate on any unlawful, dishonest, immoral
or deceitful conduct. The moral character he displayed when he applied for
admission at the Bar must be maintained incessantly. Otherwise, his privilege
to practice the legal profession may be withdrawn from him (Rule 1.01, Code
of Professional Responsibility). On the basis of the uncontroverted facts and
evidence presented, respondent Atty. Simeon M. Mesina has committed
gross misconduct which shows him to be unfit for the office and unworthy of
the privilege which his license and law confer upon him,
and recommended that respondent be suspended for a period of One (1) Year.
This Court finds that indeed, respondent is guilty of gross misconduct.
First, by advising complainants to execute another Deed of Absolute Sale antedated to
1979 to evade payment of capital gains taxes, he violated his duty to promote respect
for law and legal processes, 31 and not to abet activities aimed at defiance of the
law;32 That respondent intended to, as he did defraud not a private party but the
government is aggravating.33
Second, when respondent convinced complainants to execute another document, a
simulated Deed of Absolute Sale wherein they made it appear that complainants
reconveyed the Melencio property to his mother, he committed dishonesty.34
Third, when on May 2, 1990 respondent inveigled his own clients, the Chua spouses,
into turning over to him the owner’s copy of his mother’s title upon the misrepresentation
that he would, in four months, have a deed of sale executed by his mother in favor of
complainants, he likewise committed dishonesty.
That the signature of "Felicisima M. Melencio" in the 1985 document35 and that in the
1979 document36 are markedly different is in fact is a badge of falsification of either the
1979 or the 1985 document or even both.
A propos is this Court’s following pronouncement in Nakpil v. Valdez37 CANON 17. A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT
AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE
As a rule, a lawyer is not barred from dealing with his client but the business REPOSED IN HIM.
transaction must be characterized with utmost honesty and good faith. The
measure of good faith which an attorney is required to exercise in his dealings WHEREFORE, respondent ATTY. SIMEON M. MESINA, JR. is, for gross misconduct,
with his client is a much higher standard that is required in business dealings hereby DISBARRED.
where the parties trade at "arms length." Business transactions between an
attorney and his client are disfavored and discouraged by the policy of the law. Let copies of this Decision be furnished all courts, the Integrated Bar of the Philippines,
Hence, courts carefully watch these transactions to assure that no advantage and the Office of the Bar Confidant.
is taken by a lawyer over his client. This rule is founded on public policy for,
by virtue of his office, an attorney is in an easy position to take advantage of
the credulity and ignorance of his client. Thus, no presumption of innocence SO ORDERED.
or improbability of wrongdoing is considered in an attorney’s
favor.38 (Underscoring supplied) A.M. No. 491 October 6, 1989

Respondent having welched on his promise to cause the reconveyance of the Melencio IN THE MATTER OF THE INQUIRY INTO THE 1989 ELECTIONS OF THE
property to complainants, consideration of whether he should be ordered to honor such INTEGRATED BAR OF THE PHILIPPINES.
promise should be taken up in the civil case filed for the purpose, the issue there being
one of ownership while that in the case at bar is moral fitness.39

In fine, respondent violated his oath of office and, more specifically, the following PER CURIAM:
canons of the Code of Professional Responsibility:

In the election of the national officers of the Integrated Bar of the Philippines
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE (hereafter "IBP") held on June 3, 1989 at the Philippine International Convention
LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND LEGAL Center (or PICC), the following were elected by the House of Delegates (composed of
PROCESSES. 120 chapter presidents or their alternates) and proclaimed as officers:

Rule 1.01. - A lawyer shall not engage in unlawful, dishonest, immoral or

deceitful conduct. NAME POSITION

Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defiance of Atty. Violeta Drilon President
the law or at lessening confidence in the legal system.
Atty. Bella Tiro Executive Vice-President
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE Atty. Salvador Lao Chairman, House of
ACTIVITIES OF THE INTEGRATED BAR. Delegates

Rule 7.03. - A lawyer shall not engage in conduct that adversely reflects on
Atty. Renato F. Ronquillo Secretary, House of
his fitness to practice law, nor shall he, whether in public or private life, behave Delegates
in a scandalous manner to the discredit of the legal profession.

Atty. Teodoro Quicoy Treasurer, House of

CANON 15. A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND Delegates
LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS
CLIENTS.
Atty. Oscar Badelles Sergeant at Arms, House of
Delegates
Rule 15.07. - A lawyer shall impress upon his client compliance with the laws
and the principles of fairness.
 What the Court viewed with considerable concern was the reported electioneering
Atty. Justiniano Cortes Governor & Vice-President and extravagance that characterized the campaign conducted by the three candidates
for Northern Luzon for president of the IBP.

Atty. Ciriaco Atienza
Atty. Mario Jalandoni
Atty. Jose Aguilar Grapilon
Atty. Teodoro Almine
Governor & Vice-President I. MEDIA ACCOUNT OF THE ELECTION CAMPAIGN.
for Central Luzon
Emil Jurado, in his column "IBP Group Questions Drilon Election" (Manila Standard,
Governor & Vice-President Sunday, June 17, 1989), Luis Mauricio, in two successive columns: "The
for Metro Manila Invertebrated Bar" (Malaya, June 10, 1989) and "The Disintegrating Bar" (Malaya,
June 20, 1989), and Teodoro Locsin Jr. in an article, entitled "Pam-Pam" (The
Governor & Vice-President Philippines Free Press, July 8,1989), and the editorial, entitled 'Wrong Forum" of the
for Southern Luzon Daily Globe (June 8, 1989), were unanimously critical of the "vote-buying and
pressure tactics" allegedly employed in the campaign by the three principal
Governor & Vice-President candidates: Attys. Violeta C. Drilon, Nereo Paculdo and Ramon Nisce who reportedly
for Bicolandia "poured heart, soul, money and influence to win over the 120 IBP delegates."

Atty. Porfirio Siyangco Governor & Vice-President
for Eastern Visayas
Atty. Ricardo Teruel Governor & Vice-President
for Western Visayas
Atty. Gladys Tiongco Governor & Vice-President
for Eastern Mindanao
Atty. Simeon Datumanong Governor & Vice-President
for Western Mindanao
The newly-elected officers were set to take the their oath of office on July 4,1989,
before the Supreme Court en banc. However,disturbed by the widespread reports
received by some members of the Court from lawyers who had witnessed or
participated in the proceedings and the adverse comments published in the columns
of some newspapers about the intensive electioneering and overspending by the
candidates, led by the main protagonists for the office of president of the association,
namely, Attorneys Nereo Paculdo, Ramon Nisce, and Violeta C. Drilon, the alleged
use of government planes, and the officious intervention of certain public officials to
influence the voting, all of which were done in violation of the IBP By-Laws which
prohibit such activities. The Supreme Court en banc, exercising its power of
supervision over the Integrated Bar, resolved to suspend the oath-taking of the IBP
officers-elect and to inquire into the veracity of the reports.
It should be stated at the outset that the election process itself (i.e. the voting and the
canvassing of votes on June 3, 1989) which was conducted by the "IBP Comelec,"
headed by Justice Reynato Puno of the Court of Appeals, was unanimously adjudged
by the participants and observers to be above board. For Justice Puno took it upon
himself to device safeguards to prevent tampering with, and marking of, the ballots.
Mr. Jurado mentioned the resentment of Atty. Drilon's rivals who felt at a
disadvantage because Atty. Drilon allegedly used PNB helicopters to visit far-flung
IBP chapters on the pretext of distributing Bigay Puso donations, and she had the
added advantage of having regional directors and labor arbiters of the Department of
Labor and Employment (who had been granted leaves of absence by her husband,
the Labor Secretary) campaigning for her. Jurado's informants alleged that there was
rampant vote-buying by some members of the U.P. Sigma Rho Fraternity (Secretary
Drilon's fraternity), as well as by some lawyers of ACCRA (Angara, Concepcion, Cruz,
Regala and Abello Law Office) where Mrs. Drilon is employed, and that government
positions were promised to others by the office of the Labor Secretary.
Mr. Mauricio in his column wrote about the same matters and, in addition, mentioned
"talk of personnel of the Department of Labor, especially conciliators and employers,
notably Chinese Filipinos, giving aid and comfort to her (Atty. Drilon's) candidacy," the
billeting of out-of-town delegates in plush hotels where they were reportedly "wined
and dined continuously, womened and subjected to endless haggling over the price of
their votes x x x" which allegedly "ranged from Pl5,000 to P20,000, and, on the day of
the election, some twelve to twenty votes which were believed crucial, appreciated to
P50,000."
In his second column, Mr. Mauricio mentioned "how a top official of the judiciary
allegedly involved himself in IBP politics on election day by closeting himself with
campaigners as they plotted their election strategy in a room of the PICC (the
Philippine International Convention Center where the convention/election were held)
during a recess x x x."
Mr. Locsin in his column and editorial substantially re-echoed Mauricio's reports with
some embellishments.
II. THE COURT'S DECISION TO INVESTIGATE.
Responding to the critical reports, the Court, in its en banc resolution dated June 15,
1989, directed the outgoing and incoming members of the IBP Board of Governors,
the principal officers and Chairman of the House of Delegates to appear before it on
Tuesday, June 20, 1989, at 2:00 o'clock p.m., and there to inform the Court on the
veracity of the aforementioned reports and to recommend, for the consideration of the
Court, appropriate approaches to the problem of confirming and strengthening
adherence to the fundamental principles of the IBP.
In that resolution the Court "call[ed] to mind that a basic postulate of the Integrated
Bar of the Philippines (IBP), heavily stressed at the time of its organization and
commencement of existence, is that the IBP shall be non-political in character and
that there shall be no lobbying nor campaigning in the choice of members of the
Board of Governors and of the House of Delegates, and of the IBP officers, national,
or regional, or chapter. The fundamental assumption was that officers, delegates and
governors would be chosen on the basis of professional merit and willingness and
ability to serve."
The resolution went on to say that the "Court is deeply disturbed to note that in
connection with the election of members of the Board of Governors and of the House
of Delegates, there is a widespread belief, based on reports carried by media and
transmitted as well by word of mouth, that there was extensive and intensive
campaigning by candidates for IBP positions as well as expenditure of considerable
sums of money by candidates, including vote-buying, direct or indirect."
The venerable retired Supreme Court Justice and IBP President Emeritus, Jose B.L.
Reyes, attended the dialogue, upon invitation of the Court, to give counsel and
advice. The meeting between the Court en banc on the one hand, and the outgoing
and in coming IBP officers on the other, was an informal one. Thereafter, the Court
resolved to conduct a formal inquiry to determine whether the prohibited acts and
activities enumerated in the IBP By-Laws were committed before and during the 1989
elections of IBP's national officers.
The Court en banc formed a committee and designated Senior Associate Justice
Andres R. Narvasa, as Chairman, and Associate Justices Teodoro R. Padilla, Emilio
A. Gancayco, Abraham F. Sarmiento, and Carolina C. Griño-Aquino, as members, to
conduct the inquiry. The Clerk of Court, Atty. Daniel Martinez, acted as the
committee's Recording Secretary.
A total of forty-nine (49) witnesses appeared and testified in response to subpoenas
issued by the Court to shed light on the conduct of the elections. The managers of
three five-star hotels the Philippine Plaza, the Hyatt, and the Holiday Inn where the
three protagonists (Drilon, Nisce and Paculdo) allegedly set up their respective
headquarters and where they billeted their supporters were summoned. The officer of
the Philippine National Bank and the Air Transport Office were called to enlighten the
Court on the charge that an IBP presidential candidate and the members of her slate
used PNB planes to ferry them to distant places in their campaign to win the votes of
delegates. The Philippine Airlines officials were called to testify on the charge that
some candidates gave free air fares to delegates to the convention. Officials of the
Labor Department were also called to enable the Court to ascertain the truth of the
reports that labor officials openly campaigned or worked for the election of Atty.
Drilon.
The newspaper columnists, Messrs. Luis Mauricio, Jesus Bigornia and Emil Jurado
were subpoenaed to determine the nature of their sources of information relative to
the IBP elections. Their stories were based, they said, on letters, phone calls and
personal interviews with persons who claimed to have knowledge of the facts, but
whom they, invoking the Press Freedom Law, refused to identify.
The Committee has since submitted its Report after receiving, and analyzing and
assessing evidence given by such persons as were perceived to have direct and
personal knowledge of the relevant facts; and the Court, after deliberating thereon,
has Resolved to accept and adopt the same.
III. PROHIBITED ACTS AND PRACTICES UNDER IBP BY-LAWS.
Article I, Section 4 of the IBP By-Laws emphasizes the "strictly non-political" character
of the Integrated Bar of the Philippines, thus:
"SEC. 4. Non-political Bar. — The Integrated Bar is strictly non-
political, and every activity tending to impair this basic feature is
strictly prohibited and shall be penalized accordingly. No lawyer
holding an elective, judicial, quasi-judicial, or prosecutory office in
the Government or any political subdivision or instrumentality
thereof shall be eligible for election or appointment to any position
in the Integrated Bar or any Chapter thereof. A Delegate, Governor,
officer or employee of the Integrated Bar, or an officer or employee
of any Chapter thereof shall be considered ipso facto resigned from
his position as of the moment he files his certificate of candidacy for
any elective public office or accepts appointment to any judicial,
quasi-judicial, or prosecutory office in the Government or any
political subdivision or instrumentality thereof. "'
Section 14 of the same By-Laws enumerates the prohibited acts
relative to IBP elections:
SEC. 14. Prohibited acts and practices relative to elections. — The
following acts and practices relative to election are prohibited,
whether committed by a candidate for any elective office in the
Integrated Bar or by any other member, directly or indirectly, in any
form or manner, by himself or through another person:
(a) Distribution, except on election day, of election campaign
material;
(b) Distribution, on election day, of election campaign material other
than a statement of the biodata of a candidate on not more than
one page of a legal-size sheet of paper; or causing distribution of
such statement to be done by persons other than those authorized
by the officer presiding at the elections;
 (c) Campaigning for or against any candidate, while holding an
elective, judicial, quasi-judicial or prosecutory office in the
Government or any political subdivision, agency or instrumentality
thereof;
(d) Formation of tickets, single slates, or combinations of
candidates, as well as the advertisement thereof;
(e) For the purpose of inducing or influencing a member to withhold
his vote, or to vote for or against a candidate, (1) payment of the
dues or other indebtedness of any member; (2) giving of food,
drink, entertainment, transportation or any article of value, or any
similar consideration to any person; or (3) making a promise or
causing an expenditure to be made, offered or promised to any
person."
Section 12(d) of the By-Laws prescribes sanctions for violations of the above rules:
(d) Any violation of the rules governing elections or commission of
any of the prohibited acts and practices defined in Section 14
prohibited Acts and Practices relative to elections) of the by-laws of
the Integrated Bar shall be a ground for the disqualification of a
candidate or his removal from office if elected, without prejudice to
the imposition of sanctions upon any erring member pursuant to the
By-laws of the Integrated Bar.
At the formal investigation which was conducted by the investigating committee, the
following violations were established:
(1) Prohibited campaigning and solicitation of votes by the candidates for president,
executive vice-president, the officers of candidate the House of Delegates and Board
of Governors.
The three candidates for IBP President Drilon, Nisce and Paculdo began travelling
around the country to solicit the votes of delegates as early as April 1989. Upon the
invitation of IBP President, Leon Garcia, Jr. (t.s.n., July 13,1989, p. 4), they attended
the Bench and Bar dialogues held in Cotabato in April 1989 (t.s.n., June 29, 1989, p.
123), in Tagaytay City, Pampanga, and in Baguio City (during the conference of
chapter presidents of Northern Luzon (t.s.n., July 3,1989, p. 113; t.s.n., July 10, p. 41;
t.s.n., July 13, p. 47) where they announced their candidacies and met the chapter
presidents.
Atty. Nisce admitted that he went around the country seeking the help of IBP chapter
officers, soliciting their votes, and securing their written endorsements. He personally
hand-carried nomination forms and requested the chapter presidents and delegates
to fill up and sign the forms to formalize their commitment to his nomination for IBP
President. He started campaigning and distributing the nomination forms in March
1989 after the chapter elections which determined the membership of the House of
Delegates composed of the 120 chapter presidents (t.s.n., June 29, 1989, pp. 82-86).
He obtained forty (40) commitments. He submitted photocopies of his nomination
forms which read:
"Nomination Form
I Join in Nominating
RAMON M. NISCE
as
National President of the
Integrated Bar of the Philippines
______________ _______________
Chapter Signature"
Among those who signed the nomination forms were: Onofre P. Tejada, Candido P.
Balbin, Jr., Conizado V. Posadas, Quirico L. Quirico Ernesto S. Salun-at, Gloria C.
Agunos, Oscar B. Bernardo, Feliciano F. Wycoco, Amor L. Ibarra, Jose M. Atienza,
Jose N. Contreras, Romeo T. Mendoza, Leo C. Medialdea, Jr., Paulino G. Clarin,
Julius Z. Neil, Roem J. Arbolado Democrito M. Perez, Abelardo Fermin, Diosdado B.
Villarin, Jr., Daniel C. Macaraeg, Confesor R. Sansano Dionisio E. Bala, Jr., Emesto
A. Amores, Romeo V. Pefianco, Augurio C. Pamintuan, Atlee T. Viray, Ceferino C.
Cabanas, Jose S. Buban, Diosdado Z. Reloj, Jr., Cesar C. Viola, Oscar C.
Fernandez, Ricardo B. Teruel Rodrigo R. Flores, Sixto Marella, Jr., Arsenio C.
Villalon, Renato F. Ronquillo, Antonio G. Nalapo Romualdo A. Din Jr., Jose P.
Icaonapo Jr., and Manuel S. Person.
Atty. Nisce admitted that he reserved rooms at the Hyatt Hotel based on the
commitments he had obtained (t.s.n., June 29, 1989, pp. 82-85). Unfortunately,
despite those formal commitments, he obtained only 14 votes in the election (t.s.n.,
June 29, 1 989, p. 86). The reason, he said, is that. some of those who had
committed their votes to him were "manipulated, intimidated, pressured, or
remunerated" (t.s.n., June 29,1989, pp. 8695; Exhibit "M-4-Nisce," t.s.n., July 4, 1989,
pp. 100-1 04).
(2) Use of PNB plane in the campaign.
The records of the Philippine National Bank (Exhibit C-1-Crudo and Exhibit C-2-
Crudo) show that Secretary Fulgencio S. Factoran, Jr. of the Department of
Environment & Natural Resources (DENR) borrowed a plane from the Philippine
National Bank for his Bicol CORD (Cabinet Officers for Regional Development)
Assistant, Undersecretary Antonio Tria. The plane manifest (Exh. C-2-Crudo) listed
Atty. Violeta Drilon, Arturo Tusi (Tiu), Assistant Secretary for Environment and Natural
Resources (DENR) Tony Tria, Atty. Gladys Tiongco, and Amy Wong. Except for Tony
Tria, the rest of the passengers were IBP candidates.
Atty. Drilon admitted that she "hitched" a ride on a PNB plane. She said that she was
informed by Atty. Tiu about the availability of a PNB plane (t.s.n., July 3,1989, pp.
116-118).
Atty. Tiu, who ran for the position of IBP executive vice-president in the Drilon ticket,
testified that sometime in May 1989 he failed to obtain booking from the Philippine
Airlines for the projected trip of his group to Bicol. He went to the DENR allegedly to
follow up some papers for a client. While at the DENR, he learned that Assistant
Secretary Tria was going on an official business in Bicol for Secretary Fulgencio
Factoran and that he would be taking a PNB plane. As Assistant Secretary Tria is his
fraternity brother, he asked if he, together with the Drilon group, could hitch a ride on
the plane to Bicol. His request was granted. Their purpose in going to Bicol was to
assess their chances in the IBP elections. The Drilon company talked with the IBP
chapter presidents in Daet, Naga, and Legaspi, and asked for their support (t.s.n.,
July 10, 1989, pp. 549).
Assistant Secretary Antonio S. Tria confirmed the use of a PNB plane by Atty. Drilon
and her group. He recalled that on May 23,1989, DENR Secretary Factoran instructed
him to go to Bicol to monitor certain regional development projects there and to
survey the effect of the typhoon that hit the region in the middle of May. On the same
day, Atty. Tiu, a fraternity brother (meaning that Tiu belongs to the Sigma Rho
fraternity) went to the DENR office and requested the Secretary (Factoran) if he (Tiu)
could be allowed to hitch a ride on the plane. Assistant Secretary Tria, together with
the Drilon group which included Attorneys Drilon, Grapilon, Amy Wong, Gladys
Tiongco, and Tiu, took off at the Domestic Airport bound for Naga, Daet and Legaspi.
In Legaspi the Drilon group had lunch with Atty. Vicente Real, Jr., an IBP chapter
president (t.s.n., July 10, 1989, pp. 54-69).
(3) Formation of tickets and single slates.
The three candidates, Paculdo, Nisce and Drilon, admitted having formed their own
slates for the election of IBP national officers on June 3, 1989.
Atty. Paculdo's slate consisted of — himself for President; Bella D. Tiro, for Executive
Vice-President; and for Governors: Justiniano P. Cortez (Northern Luzon), Oscar C.
Fernandez (Central Luzon), Mario C.V. Jalandoni (Greater Manila), Petronilo A. de la
Cruz (Southern Luzon), Teodorico C. Almine, Jr. (Bicolandia), Ricardo B. Teruel
(Western Visayas), Porfirio P. Siyangco (Eastern Visayas), Jesus S. Anonat (Western
Mindanao), Guerrero A. Adaza, Jr. (Eastern Mindanao) (Exhibit M-Nisce).
The Drilon ticket consisted of. Violeta C. Drilon for President, Arturo Tiu for Executive
Vice President, Salvador Lao for Chairman of the House of Delegates, and, for
Governors: Basil Rupisan (Northern 'Luzon), Acong Atienza (Central Luzon), Amy
Wong (Metro Manila), Jose Grapilon (Southern Tagalog), Teodoro Almine
(Bicolandia), Baldomero Estenzo (Eastern Visayas), Joelito Barrera (Western
Visayas), Gladys Tiongco (Eastern Mindanao), Simeon Datumanong (Western
Mindanao) (Exhibit M-1-Nisce).
Atty. Ramon N. Nisce's line-up listed himself and Confessor B. Sansano Benjamin B.
Bernardino, Antonio L. Nalapo Renato F. Ronquillo, Gloria C. Agunos, Mario
Valderrama, Candido P. Balbin Jr., Oscar C. Fernandez, Cesar G. Viola, Leo C.
Medialdea, Jr., Vicente P. Tordilla, Jr., Jose S. Buban, Joel A. Llosa, Jesus T.
Albacite and Oscar V. Badelles.
(4) Giving free transportation to out-of-town delegates and alternates.
Atty. Nisce admitted having bought plane tickets for some delegates to the
convention. He mentioned Oscar Badelles to whom he gave four round-trip tickets
(worth about P10,000) from Iligan City to Manila and back. Badelles was a voting
delegate. Nisce, however, failed to get a written commitment from him because Atty.
Medialdea assured him (Nisce) "sigurado na 'yan, h'wag mo nang papirmahin."
Badelles won as sergeant-at-arms, not in Nisce's ticket, but in that of Drilon.
Badelles admitted that Nisce sent him three airplane tickets, but he Badelles said that
he did not use them, because if he did, he would be committed to Nisce, and he
Badelles did not want to be committed (t.s.n., July 4,1989, pp. 77-79, 95-96).
Nisce also sent a plane ticket to Atty. Atilano, who was his candidate, and another
ticket to Mrs. Linda Lim of Zamboanga. Records of the Philippine Airlines showed that
Atty. Nisce paid for the plane tickets of Vicente Real, Jr. (Exh. D-1-Calica), Romeo
Fortes (Exh. D-1-Calica), Cesar Batica (Exh. D-2-Calica), Jose Buban of Leyte (Exh.
D-2-Calica), Delsanto Resuello (Exh. D-3- Calica), and Ceferino Cabanas (Exh. D-3-
Calica).
In spite of his efforts and expense, only one of Nisce's candidates won: Renato
Ronquillo of Manila 4, as Secretary of the House of Delegates (t.s.n. July 3, p. 161).
(5) Giving free hotel accommodations, food, drinks, entertainment to delegates.
(a) ATTY. NEREO PACULDO
Atty. Paculdo alleged that he booked 24 regular rooms and three suites at the Holiday
Inn, which served as his headquarters. The 24 rooms were to be occupied by his staff
(mostly ladies) and the IBP delegates. The three suites were to be occupied by
himself, the officers of the Capitol Bar Association, and Atty. Mario Jalandoni. He paid
P150,000 for the hotel bills of his delegates at the Holiday Inn, where a room cost
P990 per day with breakfast.
Those listed as guests of Atty. Paculdo at the Holiday Inn were: Emesto C. Perez,
Tolomeo Ligutan Judge Alfonso Combong, Ricardo Caliwag, Antonio Bisnar,
Benedicto Balajadia, Jesus Castro, Restituto Villanueva, Serapio Cribe Juanita Subia,
Teodorico J. Almine, Rudy Gumban, Roem Arbolado, Ricardo Teruel, Shirley Moises,
Ramon Roco, Alberto Trinidad, Teodoro Quicoy Manito Lucero, Fred Cledera Vicente
Tordilla, Julian Ocampo, Francisco Felizmenio Marvel Clavecilla, Amador Capiral,
Eufronio Maristela, Porfirio Siyangco, William Llanes, Jr., Marciano Neri, Guerrero
Adaza, Diosdado Peralta, Luis C. Formilleza, Jr., Democrito Perez, Bruno Flores,
Dennis Rendon, Judge Ceferino Chan, Mario Jalandoni, Kenneth Siruelo Bella Tiro,
Antonio Santos, Tiburcio Edano James Tan, Cesilo A. Adaza, Francisco Roxas,
Angelita Gacutan, Jesse Pimentel, Judge Jaime Hamoy, Jesus Anonat, Carlos Egay,
Judge Carlito Eisma, Judge Jesus Carbon, Joven Zach, and Benjamin Padon.
Noel de Guzman, Holiday Inn's credit manager, testified that Atty. Paculdo booked 52
(not 24) rooms, including the presidential suite, which was used as the Secretariat.
The group bookings were made by Atty. Gloria Paculdo, the wife of Nereo Paculdo
(t.s.n. June 28, 1989, pp. 63-68). The total sum of P227,114.89 was paid to Holiday
Inn for the use of the rooms.
(b) ATTY. VIOLETA C. DRILON
The delegates and supporters of Atty. Drilon were billeted at the Philippine Plaza
Hotel where her campaign manager, Atty. Renato Callanta, booked 40 rooms, 5 of
which were suites. According to Ms. Villanueva, Philippine Plaza banquet and
conventions manager, the contract that Atty. Callanta signed with the Philippine Plaza
was made in the name of the "IBP c/o Atty. Callanta."
Mrs. Lourdes Juco, a sales manager of the Philippine Plaza, recalled that it was Mr.
Mariano Benedicto who first came to book rooms for the IBP delegates. She
suggested that he obtain a group (or discounted) rate. He gave her the name of Atty.
Callanta who would make the arrangements with her. Mr. Benedicto turned out to be
the Assistant Secretary of the Department of Labor and Employment (DOLE).
The total sum of P316,411.53 was paid by Atty. Callanta for the rooms, food, and
beverages consumed by the Drilon group, with an unpaid balance of P302,197.30.
Per Attorney Daniel Martinez's last telephone conversation with Ms. Villanueva, Atty.
Callanta still has an outstanding account of P232,782.65 at Philippine Plaza.
Atty. Callanta admitted that he signed the contract for 40 rooms at the Philippine
Plaza. He made a downpayment of P123,000. His "working sheet' showed that the
following persons contributed for that down payment:
(a) Nilo Pena (Quasha Law Office) P 25,000
(b) Antonio Carpio 20,000
(c) Toto Ferrer (Carpio Law Office) 10,000
(d) Jay Castro 10,000
(e) Danny Deen 20,000
(f) Angangco Tan (Angara Law Office) 10,000
(g) Alfonso Reyno 20,000
(h) Cosme Rossel 15,300
(t.s.n. July 4, 1 989, pp. 3-4)
Atty. Callanta explained that the above listed persons have been contributing money
every time the IBP embarks on a project. This time, they contributed so that their
partners or associates could attend the legal aid seminar and the IBP convention too.
Atty. Drilon alleged that she did not know that Atty. Callanta had billeted her delegates
at the Philippine Plaza. She allegedly did not also know in whose name the room she
occupied was registered. But she did ask for a room where she could rest during the
convention. She admitted, however, that she paid for her hotel room and meals to
Atty. Callanta, through Atty. Loanzon (t.s.n. July 3,1989).
The following were listed as having occupied the rooms reserved by Atty. Callanta at
the Philippine Plaza: Violeta Drilon, Victoria A. Verciles, Victoria C. Loanzon,
Leopoldo A. Consulto Ador Lao, Victoria Borra, Aimee Wong, Callanta, Pena, Tiu,
Gallardo, Acong Atienza, D. Bernardo, Amores, Silao Caingat, Manuel Yuson,
Simeon Datumanong, Manuel Pecson, Sixto Marella, Joselito Barrera, Radon
Macalalag, Oscar Badelles, Antonio Acyatan, Ildefonso C. Puerto, Nestor Atienza, Gil
Batula Array Corot, Dimakuta Corot Romeo Fortes Irving Petilla, Teodoro Palma, Gil
Palma, Danilo Deen, Delsanto, Resuello, Araneta, Vicente Real, Sylvio Casuncad
Espina, Guerrero, Julius Neri, Linda Lim, Ben Lim, C. Batica, Luis Formilleza, Felix
Macalag Mariano Benedicto, Atilano, Araneta, Renato Callanta.
Atty. Nilo Pena admitted that the Quasha Law Office of which he is a senior partner,
gave P25,000 to Callanta for rooms at the Philippine Plaza so that some members of
his law firm could campaign for the Drilon group (t.s.n. July 5,1989, pp. 7678) during
the legal aid seminar and the IBP convention. Most of the members of his law firm are
fraternity brothers of Secretary Drilon (meaning, members of the Sigma Rho
Fraternity). He admitted being sympathetic to the candidacy of Atty. Drilon and the
members of her slate, two of whom Jose Grapilon and Simeon Datumanong — are
Sigma Rhoans. They consider Atty. Drilon as a "sigma rho sister," her husband being
a sigma rhoan.
Atty. Antonio Carpio, also a Sigma Rhoan, reserved a room for the members of his
own firm who attended the legal aid seminar and the convention. He made the
reservation through Atty. Callanta to whom he paid P20,000 (t.s.n. July 6,1989, pp.
30-34).
Atty. Carpio assisted Atty. Drilon in her campaign during the convention, by soliciting
the votes of delegates he knew, like Atty. Albacite his former teacher (but the latter
was already committed to Nisce), and Atty. Romy Fortes, a classmate of his in the
U.P. College of Law (t. t.s.n. July 6, 1989, pp. 22, 29, 39).
(c) ATTY. RAMON NISCE.
Atty. Nisce, through his brother-in-law, Ricardo Paras, entered into a contract with the
Hyatt Hotel for a total of 29 rooms plus one (1) seventh-floor room. He made a
downpayment of P20,000 (t.s.n. June 28, 1989, p. 58) on April 20, 1989, and
P37,632.45 on May 10, or a total of P57,632.45.
Ms. Cecile Flores, Ms. Milagros Ocampo, and Mr. Ramon Jacinto, the sales
department manager, credit manager, and reservation manager, respectively of the
Hyatt, testified that Atty. Nisce's bill amounted to P216,127.74 (t.s.n. June 28, 1989,
pp. 57-58; Exhibits E-Flores, F-Jacinto G-Ocampo).
As earlier mentioned, Atty. Nisce admitted that he reserved rooms for those who
committed themselves to his candidacy.
The hotel guests of Atty. Nisce were: Gloria Agunos Dennis Habanel B. Batula, John
E. Asuncion, Reynaldo Cortes, Lourdes Santos, Elmer Datuin, Romualdo Din,
Antonio Nalapo, Israel Damasco, Candido Balbin, Serrano Balot, Ibarra, Joel Llosa,
Eltanal, Ruperto, Asuncion, Q. Pilotin Reymundo P. Guzman, Zoilo Aguinaldo, Clarin,
R. Ronquillo, Dominador Carillo, Filomeno Balinas, Ernesto Sabulan, Yusop
Pangadapun, A. Viray, Icampo, Abelardo Fermin, C. Quiaoit, Augurio Pamintuan,
Daniel Macaraeg, Onofre Tejada.
(6) Campaigning by labor officials for Atty. Violeta Drilon
In violation of the prohibition against "campaigning for or against a candidate while
holding an elective, judicial, quasi-judicial, or prosecutory office in the Government'
(Sec. 14[c], Art. I, IBP By-Laws), Mariano E. Benedicto II, Assistant Secretary,
Department of Labor and Employment, testified that he took a leave of absence from
his office to attend the IBP convention. He stayed at the Philippine Plaza with the
Drilon group admittedly to give "some moral assistance" to Atty. Violeta Drilon. He did
so because he is a member of the Sigma Rho Fraternity. When asked about the
significance of Sigma Rho, Secretary Benedicto explained: "More than the husband of
Mrs. Drilon being my boss, the significance there is that the husband is my brother in
the Sigma Rho."
He cheered up Mrs., Drilon when her spirits were low. He talked to her immediate
circle which included Art Tiu, Tony Carpio, Nilo Pena, Amy Wong, Atty. Grapilon,
Victor Lazatin, and Boy Reyno. They assessed the progress of the campaign, and
measured the strengths and weaknesses of the other groups The group had sessions
as early as the later part of May.
Room 114, the suite listed in the name of Assistant Secretary Benedicto toted up a bill
of P23,110 during the 2-day IBP convention/election. A total of 113 phone calls
(amounting to Pl,356) were recorded as emanating from his room.
Opposite Room 114, was Room 112, also a suite, listed in the names of Mrs. Drilon,
Gladys Tiongco (candidate for Governor, Eastern Mindanao) and Amy Wong
(candidate for Governor, Metro Manila). These two rooms served as the "action
center' or "war room" where campaign strategies were discussed before and during
the convention. It was in these rooms where the supporters of the Drilon group, like
Attys. Carpio, Callanta, Benedicto, the Quasha and the ACCRA lawyers met to plot
their moves.
(7) Paying the dues or other indebtedness of any number (Sec. 14[e], IBP BY-Laws).
Atty. Teresita C. Sison, IBP Treasurer, testified that she has heard of candidates
paying the IBP dues of lawyers who promised to vote for or support them, but she has
no way of ascertaining whether it was a candidate who paid the delinquent dues of
another, because the receipts are issued in the name of the member for whom
payment is made (t.s.n. June 28, 1989, pp. 24-28).
She has noticed, though, that there is an upsurge of payments in March, April, May
during any election year. This year, the collections increased by P100,000 over that of
last year (a non-election year from Pl,413,425 to Pl,524,875 (t.s.n. June 28, 1989, p.
25).
(8) Distribution of materials other than bio-data of not more than one page of legal
size sheet of paper (Sec. 14[a], IBP By-Laws).
On the convention floor on the day of the election, Atty. Paculdo caused to be
distributed his bio-data and copies of a leaflet entitled "My Quest," as wen as, the lists
of his slate. Attys. Drilon and Nisce similarly distributed their tickets and bio-data.
The campaign materials of Atty. Paculdo cost from P15,000 to P20,000. They were
printed by his own printing shop.
(9) Causing distribution of such statement to be done by persons other than those
authorized by the officer presiding at the election (Sec. 14[b], IBP By-Laws).
Atty. Paculdo employed uniformed girls to distribute his campaign materials on the
convention floor. Atty. Carpio noted that there were more campaign materials
distributed at the convention site this year than in previous years. The election was
more heated and expensive (t.s.n. July 6,1989, p. 39).
Atty. Benjamin Bernardino, the incumbent President of the IBP Rizal Chapter, and a
candidate for chairman of the House of Delegates on Nisce's ticket, testified that
campaign materials were distributed during the convention by girls and by lawyers.
He saw members of the ACCRA law firm campaigning for Atty. Drilon (t.s.n. July
3,1989, pp. 142-145).
(10) Inducing or influencing a member to withhold his vote, or to vote for or against a
candidate (Sec. 14[e], IBP BY-Laws).
Atty. Bernardino disclosed that his cousin, Atty. Romeo Capulong, urged him to
withdraw his candidacy for chairman of the House of Delegates and to run as vice-
chairman in Violy Drilon's slate, but he declined (t.s.n. July 3,1989, pp. 137, 149).
Atty. Gloria Agunos personnel director of the Hyatt Terraces Hotel in Baguio and
president of the Baguio-Benguet IBP Chapter, recalled that in the third week of May
1989, after the Tripartite meet of the Department of Labor & Employment at the Green
Valley Country Club in Baguio City, she met Atty. Drilon, together with two labor
officers of Region 1, Attys. Filomeno Balbin and Atty. Mansala Atty. Drilon solicited
her (Atty. Agunos') vote and invited her to stay at the Philippine Plaza where a room
would be available for her. Atty. Paculdo also tried to enlist her support during the
chapter presidents' meeting to choose their nominee for governor for the Northern
Luzon region (t.s.n. July 13,1989, pp. 43-54).
Atty. Nisce testified that a Manila Chapter 4 delegate, Marcial Magsino, who had
earlier committed his vote to Nisce changed his mind when he was offered a
judgeship (This statement, however, is admittedly hearsay). When Nisce confronted
Magsino about the alleged offer, the latter denied that there was such an offer.
Nisce's informant was Antonio G. Nalapo an IBP candidate who also withdrew.
Another Nisce candidate, Cesar Viola, withdrew from the race and refused to be
nominated (t.s.n. June 29, 1989, p. 104). Vicente P. Tordilla who was Nisce's
candidate for Governor became Paculdo's candidate instead (t.s.n. June 29, 1989, p.
104).
Nisce recalled that during the Bench and Bar Dialogue in Cotabato City, Court
Administrator Tiro went around saying, "I am not campaigning, but my wife is a
candidate." Nisce said that the presidents of several IBP chapters informed him that
labor officials were campaigning for Mrs. Drilon (t.s.n. June 29,1989, pp. 109-110). He
mentioned Ciony de la Cerna, who allegedly campaigned in La Union (t.s.n. June
29,1989,p.111)
Atty. Joel A. Llosa, Nisce's supporter and candidate for governor of the Western
Visayas, expressed his disappointment over the IBP elections because some
delegates flip-flopped from one camp to another. He testified that when he arrived at
the Manila Domestic Airport he was met by an assistant regional director of the DOLE
who offered to bring him to the Philippine Plaza, but he declined the offer. During the
legal aid seminar, Atty. Drilon invited him to transfer to the Philippine Plaza where a
room had been reserved for him. He declined the invitation (t.s.n. July 4,1989, pp.
102-106).
Atty. Llosa said that while he was still in Dumaguete City, he already knew that the
three candidates had their headquarters in separate hotels: Paculdo, at the Holiday
Inn; Drilon, at the Philippine Plaza; and Nisce, at the Hyatt. He knew about this
because a week before the elections, representatives of Atty. Drilon went to
Dumaguete City to campaign. He mentioned Atty. Rodil Montebon of the ACCRA Law
Office, accompanied by Atty. Julve the Assistant Regional Director of the Department
of Labor in Dumaguete City. These two, he said, offered to give him two PAL tickets
and accommodations at the Philippine Plaza (t.s.n. July 4,1989, pp. 101-104). But he
declined the offer because he was already committed to Atty. Nisce.
Atty. Llosa also revealed that before he left for Manila on May 31, 1989, a
businessman, Henry Dy, approached him to convince him to vote for Atty. Paculdo.
But Llosa told Dy that he was already committed to Nisce.
He did not receive any plane tickets from Atty. Nisce because he and his two
companions (Atty. Eltanal and Atty. Ruperto) had earlier bought their own tickets for
Manila (t.s.n. July 4, 1989, p. 101).
SUMMARY OF CAMPAIGN EXPENSES INCURRED
BY THE CANDIDATES
Atty. Paculdo admitted having spent some P250,000 during his three weeks of
campaigning. Of this amount, the Capitol Bar Association (of which he was the
chapter president) contributed about P150,000. The Capitol Bar Association is a
voluntary bar association composed of Quezon City lawyers.
He spent about P100,000 to defray the expenses of his trips to the provinces (Bicol
provinces, Pampanga, Abra, Mountain Province and Bulacan) (t.s.n. June 29,1989,
pp. 9-14).
Atty. Nisce's hotel bills at the Hyatt amounted to P216,127.74. This does not include
the expenses for his campaign which began several months before the June 3rd
election, and his purchases of airplane tickets for some delegates.
The records of the Philippine Plaza Hotel, headquarters of Atty. Drilon's camp,
showed that her campaign rang up over P600,000 in hotel bills. Atty. Callanta paid
P316,411.53 for the rooms, food, and beverage consumed by Atty. Drilon's
supporters, but still left an unpaid bill of P302,197.30 at convention's end.
FINDINGS.
From all the foregoing, it is evident that the manner in which the principal candidates
for the national positions in the Integrated Bar conducted their campaign preparatory
to the elections on June 3, 1989, violated Section 14 of the IBP By-Laws and made a
travesty of the idea of a "strictly non-political" Integrated Bar enshrined in Section 4 of
the By-Laws.
The setting up of campaign headquarters by the three principal candidates (Drilon,
Nisce and Paculdo) in five-star hotels: The Philippine Plaza, the Holiday Inn and The
Hyatt the better for them to corral and entertain the delegates billeted therein; the
island hopping to solicit the votes of the chapter presidents who comprise the 120-
member House of Delegates that elects the national officers and regional governors;
the formation of tickets, slates, or line-ups of candidates for the other elective
positions aligned with, or supporting, either Drilon, Paculdo or Nisce; the procurement
of written commitments and the distribution of nomination forms to be filled up by the
delegates; the reservation of rooms for delegates in three big hotels, at the expense
of the presidential candidates; the use of a PNB plane by Drilon and some members
of her ticket to enable them to "assess their chances" among the chapter presidents
in the Bicol provinces; the printing and distribution of tickets and bio-data of the
candidates which in the case of Paculdo admittedly cost him some P15,000 to
P20,000; the employment of uniformed girls (by Paculdo) and lawyers (by Drilon) to
distribute their campaign materials on the convention floor on the day of the election;
the giving of assistance by the Undersecretary of Labor to Mrs. Drilon and her group;
the use of labor arbiters to meet delegates at the airport and escort them to the
Philippine Plaza Hotel; the giving of pre-paid plane tickets and hotel accommodations
to delegates (and some families who accompanied them) in exchange for their
support; the pirating of some candidates by inducing them to "hop" or "flipflop" from
one ticket to another for some rumored consideration; all these practices made a
political circus of the proceedings and tainted the whole election process.
The candidates and many of the participants in that election not only violated the By-
Laws of the IBP but also the ethics of the legal profession which imposes on all
lawyers, as a corollary of their obligation to obey and uphold the constitution and the
laws, the duty to "promote respect for law and legal processes" and to abstain from
'activities aimed at defiance of the law or at lessening confidence in the legal system"
(Rule 1.02, Canon 1, Code of Professional Responsibility). Respect for law is gravely
eroded when lawyers themselves, who are supposed to be millions of the law,
engage in unlawful practices and cavalierly brush aside the very rules that the IBP
formulated for their observance.
The unseemly ardor with which the candidates pursued the presidency of the
association detracted from the dignity of the legal profession. The spectacle of
lawyers bribing or being bribed to vote one way or another, certainly did not uphold
the honor of the profession nor elevate it in the public's esteem.
The Court notes with grave concern what appear to be the evasions, denials and
outright prevarications that tainted the statements of the witnesses, including tome of
the candidates, during the initial hearing conducted by it before its fact-finding
committee was created. The subsequent investigation conducted by this Committee
has revealed that those parties had been less than candid with the Court and seem to
have conspired among themselves to deceive it or at least withhold vital information
from it to conceal the irregularities committed during the campaign.
CONCLUSIONS.
It has been mentioned with no little insistence that the provision in the 1987
Constitution (See. 8, Art. VIII) providing for a Judicial and Bar Council composed of
seven (7) members among whom is "a representative of the Integrated Bar," tasked
to participate in the selection of nominees for appointment to vacant positions in the
judiciary, may be the reason why the position of IBP president has attracted so much
interest among the lawyers. The much coveted "power" erroneously perceived to be
inherent in that office might have caused the corruption of the IBP elections. To
impress upon the participants in that electoral exercise the seriousness of the
misconduct which attended it and the stern disapproval with which it is viewed by this
Court, and to restore the non-political character of the IBP and reduce, if not entirely
eliminate, expensive electioneering for the top positions in the organization which, as
the recently concluded elections revealed, spawned unethical practices which
seriously diminished the stature of the IBP as an association of the practitioners of a
noble and honored profession, the Court hereby ORDERS:
1. The IBP elections held on June3,1989 should be as they are hereby annulled.
2. The provisions of the IBP By-Laws for the direct election by the House of Delegates
(approved by this Court in its resolution of July 9, 1985 in Bar Matter No. 287) of the
following national officers:
(a) the officers of the House of Delegates;
(b) the IBP president; and
(c) the executive vice-president,
be repealed, this Court being empowered to amend, modify or repeal the By-Laws of
the IBP under Section 77, Art. XI of said By-Laws.
3. The former system of having the IBP President and Executive Vice-President
elected by the Board of Governors (composed of the governors of the nine [91 IBP
regions) from among themselves (as provided in Sec. 47, Art. VII, Original IBP By-
Laws) should be restored. The right of automatic succession by the Executive Vice-
President to the presidency upon the expiration of their two-year term (which was
abolished by this Court's resolution dated July 9,1985 in Bar Matter No. 287) should
be as it is hereby restored.
4. At the end of the President's two-year term, the Executive Vice-President shall
automatically succeed to the office of president. The incoming board of governors
shall then elect an Executive Vice-President from among themselves. The position of
Executive Vice-President shall be rotated among the nine (9) IBP regions. One who
has served as president may not run for election as Executive Vice-President in a
succeeding election until after the rotation of the presidency among the nine (9)
regions shall have been completed; whereupon, the rotation shall begin anew.
5. Section 47 of Article VII is hereby amended to read as follows:
Section 47. National Officers. — The Integrated Bar of the
Philippines shall have a President and Executive Vice-President to
be chosen by the Board of Governors from among nine (9) regional
governors, as much as practicable, on a rotation basis. The
governors shall be ex oficio Vice-President for their respective
regions. There shall also be a Secretary and Treasurer of the Board
 of Governors to be appointed by the President with the consent of
the Board.
6. Section 33(b), Art. V, IBP By-Laws, is hereby amended as follows:
(b) The President and Executive Vice President of the IBP shall be
the Chairman and Vice-Chairman, respectively, of the House of
Delegates. The Secretary, Treasurer, and Sergeant-at-Arms shall
be appointed by the President with the consent of the House of
Delegates.'
7. Section 33(g) of Article V providing for the positions of Chairman, Vice-Chairman,
Secretary-Treasurer and Sergeant-at- Arms of the House of Delegates is hereby
repealed
8. Section 37, Article VI is hereby amended to read as follows:
Section 37. Composition of the Board. — The Integrated Bar of the
Philippines shall be governed by a Board of Governors consisting of
nine (9) Governors from the nine (9) regions as delineated in
Section 3 of the Integration Rule, on the representation basis of one
(1) Governor for each region to be elected by the members of the
House of Delegates from that region only. The position of Governor
should be rotated among the different Chapters in the region.
9. Section 39, Article V is hereby amended as follows:
Section 39. Nomination and election of the Governors at least one
(1) month before the national convention the delegates from each
region shall elect the governor for their region, the choice of which
shall as much as possible be rotated among the chapters in the
region.
10. Section33(a), Article V hereby is amended by addingthe following provision as
part of the first paragraph:
No convention of the House of Delegates nor of the general
membership shall be held prior to any election in an election year.
11. Section 39, (a), (b), (1), (2), (3), (4), (5), (6), and (7) of Article VI should be as they
are hereby deleted.
All other provisions of the By-Laws including its amendment by the Resolution en
banc of this Court of July 9, 1985 (Bar Matter No. 287) that are inconsistent herewith
are hereby repealed or modified.
12. Special elections for the Board of Governors shall be held in the nine (9) IBP
regions within three (3) months, after the promulgation of the Court's resolution in this
case. Within thirty (30) days thereafter, the Board of Governors shall meet at the IBP
Central Office in Manila to elect from among themselves the IBP national president
and executive vice-president. In these special elections, the candidates in the election
of the national officers held on June 3,1989, particularly identified in Sub-Head 3 of
this Resolution entitled "Formation of Tickets and Single Slates," as well as those
identified in this Resolution as connected with any of the irregularities attendant upon
that election, are ineligible and may not present themselves as candidate for any
position.
13. Pending such special elections, a caretaker board shall be appointed by the Court
to administer the affairs of the IBP. The Court makes clear that the dispositions here
made are without prejudice to its adoption in due time of such further and other
measures as are warranted in the premises.
SO ORDERED.
G.R. No. 104599 March 11, 1994
JON DE YSASI III, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (FOURTH DIVISION), CEBU CITY,
and JON DE YSASI, respondents.
F.B. Santiago, Nalus & Associates for petitioner.
Ismael A. Serfino for private respondent.
REGALADO, J.:
The adage that blood is thicker than water obviously stood for naught in this case,
notwithstanding the vinculum of paternity and filiation between the parties. It would
indeed have been the better part of reason if herein petitioner and private respondent
had reconciled their differences in an extrajudicial atmosphere of familial amity and
with the grace of reciprocal concessions. Father and son opted instead for judicial
intervention despite the inevitable acrimony and negative publicity. Albeit with
distaste, the Court cannot proceed elsewise but to resolve their dispute with the same
reasoned detachment accorded any judicial proceeding before it.
The records of this case reveal that petitioner was employed by his father, herein
private respondent, as farm administrator of Hacienda Manucao in Hinigaran, Negros
Occidental sometime in April, 1980. Prior thereto, he was successively employed as
sales manager of Triumph International (Phil.), Inc. and later as operations manager
of Top Form Manufacturing (Phil.), Inc. His employment as farm administrator was on
a fixed salary, with other allowances covering housing, food, light, power, telephone,
gasoline, medical and dental expenses.
As farm administrator, petitioner was responsible for the supervision of daily activities
and operations of the sugarcane farm such as land preparation, planting, weeding,
fertilizing, harvesting, dealing with third persons in all matters relating to
the hacienda and attending to such other tasks as may be assigned to him by private
respondent. For this purpose, he lived on the farm, occupying the upper floor of the
house there.
Following his marriage on June 6, 1982, petitioner moved to Bacolod City with his
wife and commuted to work daily. He suffered various ailments and was hospitalized
on two separate occasions in June and August, 1982. In November, 1982, he
underwent fistulectomy, or the surgical removal of the fistula, a deep sinuous ulcer.
During his recuperation which lasted over four months, he was under the care of Dr.
Patricio Tan. In June, 1983, he was confined for acute gastroenteritis and, thereafter,
for infectious hepatitis from December, 1983 to January, 1984.
During the entire periods of petitioner's illnesses, private respondent took care of his
medical expenses and petitioner continued to receive compensation. However, in
April, 1984, without due notice, private respondent ceased to pay the latter's salary.
Petitioner made oral and written demands for an explanation for the sudden
withholding of his salary from Atty. Apolonio Sumbingco, private respondent's auditor
and legal adviser, as well as for the remittance of his salary. Both demands, however,
were not acted upon.
Petitioner then filed an action with the National Labor Relations Commission (NLRC,
for brevity), Regional Arbitration Branch No. VI, Bacolod City, on October 17, 1984,
docketed therein as RAB Case No. 0452-84, against private respondent for illegal
dismissal with prayer for reinstatement without loss of seniority rights and payment of
full back wages, thirteenth month pay for 1983, consequential, moral and exemplary
damages, as well as attorney's fees.
On July 31, 1991, said complaint for illegal dismissal was dismissed by the
NLRC,1 holding that petitioner abandoned his work and that the termination of his
employment was for a valid cause, but ordering private respondent to pay petitioner
the amount of P5,000.00 as penalty for his failure to serve notice of said termination
of employment to the Department of Labor and Employment as required by Batas
Pambansa Blg. 130 and consonant with this Court's ruling in Wenphil Corporation
vs. National Labor Relations Commission, et al.2 On appeal to the Fourth Division of
the NLRC, Cebu City, said decision was affirmed in toto.3
His motion for reconsideration4 of said decision having been denied for lack of
merit,5 petitioner filed this petition presenting the following issues for resolution: (1)
whether or not the petitioner was illegally dismissed; (2) whether or not he is entitled
to reinstatement, payment of back wages, thirteenth month pay and other benefits;
and (3) whether or not he is entitled to payment of moral and exemplary damages and
attorney's fees because of illegal dismissal. The discussion of these issues will
necessarily subsume the corollary questions presented by private respondent, such
as the exact date when petitioner ceased to function as farm administrator, the
character of the pecuniary amounts received by petitioner from private respondent,
that is, whether the same are in the nature of salaries or pensions, and whether or not
there was abandonment by petitioner of his functions as farm administrator.
In his manifestation dated September 14, 1992, the Solicitor General recommended a
modification of the decision of herein public respondent sustaining the findings and
conclusions of the Executive Labor Arbiter in RAB Case No. 0452-84,6 for which
reason the NLRC was required to submit its own comment on the petition. In
compliance with the Court's resolution of November 16, 1992,7 NLRC filed its
comment on February 12, 1992 largely reiterating its earlier position in support of the
findings of the Executive Labor Arbiter.8
Before proceeding with a discussion of the issues, the observation of the labor arbiter
is worth noting:
This case is truly unique. What makes this case unique is the fact
that because of the special relationship of the parties and the
nature of the action involved, this case could very well go down (in)
the annals of the Commission as perhaps the first of its kind. For
this case is an action filed by an only son, his father's namesake,
the only child and therefore the only heir against his own father. 9
Additionally, the Solicitor General remarked:
. . . After an exhaustive reading of the records, two (2) observations
were noted that may justify why this labor case deserves special
considerations. First, most of the complaints that petitioner and
private respondent had with each other, were personal matters
affecting father and son relationship. And secondly, if any of the
complaints pertain to their work, they allow their personal
relationship to come in the way.10
I. Petitioner maintains that his dismissal from employment was illegal because of want
of just cause therefor and non-observance of the requirements of due process. He
also charges the NLRC with grave abuse of discretion in relying upon the findings of
the executive labor arbiter who decided the case but did not conduct the hearings
thereof.
Private respondent, in refutation, avers that there was abandonment by petitioner of
his functions as farm administrator, thereby arming private respondent with a ground
to terminate his employment at Hacienda Manucao. It is also contended that it is
wrong for petitioner to question the factual findings of the executive labor arbiter and
the NLRC as only questions of law may be appealed for resolution by this Court.
Furthermore, in seeking the dismissal of the instant petition, private respondent faults
herein petitioner for failure to refer to the corresponding pages of the transcripts of
stenographic notes, erroneously citing Sections 15(d) and 16(d), Rule 44 (should be
Section 16[c] and [d],
Rule 46 and Section 1[g], Rule 50) of the Rules of Court, which provide that want of
page references to the records is a ground for dismissal of an appeal.
Prefatorily, we take advertence of the provisions of Article 221 of the Labor Code that
technical rules of evidence prevailing in courts of law and equity shall not be
controlling, and that every and all reasonable means to speedily and objectively
ascertain the facts in each case shall be availed of, without regard to technicalities of
law or procedure in the interest of due process.
It is settled that it is not procedurally objectionable for the decision in a case to be
rendered by a judge, or a labor arbiter for that matter, other than the one who
conducted the hearing. The fact that the judge who heard the case was not the judge
who penned the decision does not impair the validity of the judgment,11 provided that
he draws up his decision and resolution with due care and makes certain that they
truly and accurately reflect conclusions and final dispositions on the bases of the facts
of and evidence submitted in the case.12
Thus, the mere fact that the case was initially assigned to Labor Arbiter Ricardo T.
Octavio, who conducted the hearings therein from December 5, 1984 to July 11,
1985, and was later transferred to Executive Labor Arbiter Oscar S. Uy, who
eventually decided the case, presents no procedural infirmity, especially considering
that there is a presumption of regularity in the performance of a public officer's
functions,13 which petitioner has not successfully rebutted.
We are constrained to heed the underlying policy in the Labor Code relaxing the
application of technical rules of procedure in labor cases in the interest of due
process, ever mindful of the long-standing legal precept that rules of procedure must
be interpreted to help secure, not defeat, justice. For this reason, we cannot indulge
private respondent in his tendency to nitpick on trivial technicalities to boost his
arguments. The strength of one's position cannot be hinged on mere procedural
niceties but on solid bases in law and jurisprudence.
The fundamental guarantees of security of tenure and due process dictate that no
worker shall be dismissed except for just and authorized cause provided by law and
after due process.14 Article 282 of the Labor Code enumerates the causes for which
an employer may validly terminate an employment, to wit:
(a) serious misconduct or willful disobedience by the employee of the lawful orders of
his employer or representative in connection with his work; (b) gross and habitual
neglect by the employee of his duties; (c) fraud or willful breach by the employee of
the trust reposed in him by his employer or duly authorized representative; (d)
commission of a crime or offense by the employee against the person of his employer
or any immediate member of his family or his duly authorized representative; and (e)
other causes analogous to the foregoing.
The employer may also terminate the services of any employee due to the installation
of labor saving devices, redundancy, retrenchment to prevent losses or the closing or
cessation of operation of the establishment or undertaking, unless the closing is for
the purpose of circumventing the pertinent provisions of the Labor Code, by serving a
written notice on the workers and the Department of Labor and Employment at least
one (1) month before the intended date thereof, with due entitlement to the
corresponding separation pay rates provided by law.15 Suffering from a disease by
reason whereof the continued employment of the employee is prohibited by law or is
prejudicial to his and his co-employee's health, is also a ground for termination of his
services provided he receives the prescribed separation pay.16 On the other hand, it
is well-settled that abandonment by an employee of his work authorizes the employer
to effect the former's dismissal from employment.17
After a careful review of the records of this case, we find that public respondent
gravely erred in affirming the decision of the executive labor arbiter holding that
petitioner abandoned his employment and was not illegally dismissed from such
employment. For want of substantial bases, in fact or
in law, we cannot give the stamp of finality and conclusiveness normally accorded to
the factual findings of an administrative agency, such as herein public respondent
NLRC,18 as even decisions of administrative agencies which are declared "final" by
law are not exempt from judicial review when so warranted. 19
The following perceptive disquisitions of the Solicitor General on this point deserve
acceptance:
It is submitted that the absences of petitioner in his work from
October 1982 to December 1982, cannot be construed as
abandonment of work because he has a justifiable excuse.
Petitioner was suffering from perennial abscess in the peri-anal
around the anus and fistula under the medical attention of Dr.
Patricio Tan of Riverside Medical Center, Inc., Bacolod City (Tsn,
Vol. III, Dr. Tan, February 19, 1986 at 20-44).
This fact (was) duly communicated to private respondent by
medical bills sent to Hacienda Manucao (Tsn, Vol. III, Dr. Tan,
January 22, 1987 at 49-50).
During the period of his illness and recovery, petitioner stayed in
Bacolod City upon the instruction(s) of private respondent to
recuperate thereat and to handle only administrative matters of the
hacienda in that city. As a manager, petitioner is not really obliged
to live and stay 24 hours a day inside Hacienda Manucao.
xxx xxx xxx
After evaluating the evidence within the context of the special
circumstances involved and basic human experience, petitioner's
illness and strained family relation with respondent Jon de Ysasi II
may be considered as justifiable reason for petitioner Jon de Ysasi
III's absence from work during the period of October 1982 to
December 1982. In any event, such absence does not warrant
outright dismissal without notice and hearing.
xxx xxx xxx
The elements of abandonment as a ground for dismissal of an
employee are as follows:
 (1) failure to report for work or absence without
valid or justifiable reason; and (2) clear intention
to sever the employer-employee tie (Samson
Alcantara, Reviewer in Labor and Social
Legislation, 1989 edition, p. 133).
This Honorable Court, in several cases, illustrates what constitute
abandonment. In Dagupan Bus Company v. NLRC (191 SCRA
328), the Court rules that for abandonment to arise, there must be a
concurrence of the intention to abandon and some overt act from
which it may be inferred that the employee has no more interest to
work. Similarly, in Nueva Ecija I Electric Cooperative,
Inc. v. NLRC (184 SCRA 25), for abandonment to constitute a valid
cause for termination of employment, there must be a deliberate,
unjustified refusal of the employee to resume his employment. . .
Mere absence is not sufficient; it must be accompanied by overt
acts unerringly pointing to the fact that the employee simply does
not want to work anymore.
There are significant indications in this case, that there is no
abandonment. First, petitioner's absence and his decision to leave
his residence inside Hacienda Manucao, is justified by his illness
and strained family relations. Second he has some medical
certificates to show his frail health. Third, once able to work,
petitioner wrote a letter (Annex "J") informing private respondent of
his intention to assume again his employment. Last, but not the
least, he at once instituted a complaint for illegal dismissal when he
realized he was unjustly dismissed. All these are indications that
petitioner had no intention to abandon his employment.20
The records show that the parties herein do not dispute the fact of petitioner's
confinement in the hospital for his various afflictions which required medical
treatment. Neither can it be denied that private respondent was well aware of
petitioner's state of health as the former admittedly shouldered part of the medical
and hospital bills and even advised the latter to stay in Bacolod City until he was fit to
work again. The disagreement as to whether or not petitioner's ailments were so
serious as to necessitate hospitalization and corresponding periods for recuperation is
beside the point. The fact remains that on account of said illnesses, the details of
which were amply substantiated by the attending physician,21 and as the records are
bereft of any suggestion of malingering on the part of petitioner, there was justifiable
cause for petitioner's absence from work. We repeat, it is clear, deliberate and
unjustified refusal to resume employment and not mere absence that is required to
constitute abandonment as a valid ground for termination of employment.22
With his position as farm administrator of Hacienda Manucao, petitioner unmistakably
may be classified as a managerial employee23 to whom the law grants an amount of
discretion in the discharge of his duties. This is why when petitioner stated that "I
assigned myself where I want to go,"24 he was simply being candid about what he
could do within the sphere of his authority. His duties as farm administrator did not
strictly require him to keep regular hours or to be at the office premises at all times, or
to be subjected to specific control from his employer in every aspect of his work. What
is essential only is that he runs the farm as efficiently and effectively as possible and,
while petitioner may definitely not qualify as a model employee, in this regard he
proved to be quite successful, as there was at least a showing of increased
production during the time that petitioner was in charge of farm operations.
If, as private respondent contends, he had no control over petitioner during the years
1983 to 1984, this is because that was the period when petitioner was recuperating
from illness and on account of which his attendance and direct involvement in farm
operations were irregular and minimal, hence the supervision and control exercisable
by private respondent as employer was necessarily limited. It goes without saying that
the control contemplated refers only to matters relating to his functions as farm
administrator and could not extend to petitioner's personal affairs and activities.
While it was taken for granted that for purposes of discharging his duties as farm
administrator, petitioner would be staying at the house in the farm, there really was no
explicit contractual stipulation (as there was no formal employment contract to begin
with) requiring him to stay therein for the duration of his employment or that any
transfer of residence would justify the termination of his employment. That petitioner
changed his residence should not be taken against him, as this is undeniably among
his basic rights, nor can such fact of transfer of residence per se be a valid ground to
terminate an employer-employee relationship.
Private respondent, in his pleadings, asserted that as he was yet uncertain of his
son's intention of returning to work after his confinement in the hospital, he kept
petitioner on the payroll, reported him as an employee of the hacienda for social
security purposes, and paid his salaries and benefits with the mandated deductions
therefrom until the end of December, 1982. It was only in January, 1983 when he
became convinced that petitioner would no longer return to work that he considered
the latter to have abandoned his work and, for this reason, no longer listed him as an
employee. According to private respondent, whatever amount of money was given to
petitioner from that time until
April, 1984 was in the nature of a pension or an allowance or mere gratuitous doles
from a father to a son, and not salaries as, in fact, none of the usual deductions were
made therefrom. It was only in April, 1984 that private respondent completely stopped
giving said pension or allowance when he was angered by what he heard petitioner
had been saying about sending him to jail.
Private respondent capitalizes on the testimony of one Manolo Gomez taken on oral
deposition regarding petitioner's alleged statement to him, "(h)e quemado los
(p)ue(n)tes de Manucao" ("I have burned my bridges with Manucao") as expressive of
petitioner's intention to abandon his job. In addition to insinuations of sinister motives
on the part of petitioner in working at the farm and thereafter abandoning the job upon
accomplishment of his objectives, private respondent takes the novel position that the
agreement to support his son after the latter abandoned the administration of the farm
legally converts the initial abandonment to implied voluntary resignation.25
As earlier mentioned, petitioner ripostes that private respondent undoubtedly knew
about petitioner's illness and even paid for his hospital and other medical bills. The
assertion regarding abandonment of work, petitioner argues, is further belied by his
continued performance of various services related to the operations of the farm from
May to the last quarter of 1983, his persistent inquiries from his father's accountant
and legal adviser about the reason why his pension or allowance was discontinued
since April, 1984, and his indication of having recovered and his willingness and
capability to resume his work at the farm as expressed in a letter dated September
14, 1984.26 With these, petitioner contends that it is immaterial how the monthly
pecuniary amounts are designated, whether as salary, pension or allowance, with or
without deductions, as he was entitled thereto in view of his continued service as farm
administrator.27
To stress what was earlier mentioned, in order that a finding of abandonment may
justly be made there must be a concurrence of two elements, viz.: (1) the failure to
report for work or absence without valid or justifiable reason, and (2) a clear intention
to sever the employer-employee relationship, with the second element as the more
determinative factor and being manifested by some overt acts. Such intent we find
dismally wanting in this case.
It will be recalled that private respondent himself admitted being unsure of his son's
plans of returning to work. The absence of petitioner from work since mid-1982,
prolonged though it may have been, was not without valid causes of which private
respondent had full knowledge. As to what convinced or led him to believe that
petitioner was no longer returning to work, private respondent neither explains nor
substantiates by any reasonable basis how he arrived at such a conclusion.
Moreover, private respondent's claim of abandonment cannot be given credence as
even after January, 1983, when private respondent supposedly "became convinced"
that petitioner would no longer work at the farm, the latter continued to perform
services directly required by his position as farm administrator. These are duly and
correspondingly evidenced by such acts as picking up some farm
machinery/equipment from G.A. Machineries, Inc.,28 claiming and paying for
additional farm equipment and machinery shipped by said firm from Manila to Bacolod
through Zip Forwarders,29 getting the payment of the additional cash advances for
molasses for crop year 1983-1984 from Agrotex Commodities, Inc.,30 and remitting to
private respondent through
Atty. Sumbingco the sums collected along with receipts for medicine and oil.31
It will be observed that all of these chores, which petitioner took care of, relate to the
normal activities and operations of the farm. True, it is a father's prerogative to
request or even command his child to run errands for him. In the present case,
however, considering the nature of these transactions, as well as the property values
and monetary sums involved, it is unlikely that private respondent would leave the
matter to just anyone. Prudence dictates that these matters be handled by someone
who can be trusted or at least be held accountable therefor, and who is familiar with
the terms, specifications and other details relative thereto, such as an employee. If
indeed petitioner had abandoned his job or was considered to have done so by
private respondent, it would be awkward, or even out of place, to expect or to oblige
petitioner to concern himself with matters relating to or expected of him with respect
to what would then be his past and terminated employment. It is hard to imagine what
further authority an employer can have over a dismissed employee so as to compel
him to continue to perform work-related tasks:
It is also significant that the special power of attorney32 executed
by private respondent on June 26, 1980 in favor of petitioner, specifically stating —
xxx xxx xxx
That I, JON de YSASI, Filipino, of legal age, married, and a resident
of Hda. Manucao, hereinafter called and referred to as PRINCIPAL,
am a sugarcane planter, BISCOM Mill District, and a duly
accredited planter-member of the BINALBAGAN-ISABELA
PLANTERS' ASSOCIATION, INC.;
That as such planter-member of BIPA, I have check/checks with
BIPA representing payment for all checks and papers to which I am
entitled to (sic) as such planter-member;
That I have named, appointed and constituted as by these presents
I HEREBY NAME, APPOINT AND CONSTITUTE as my true and
lawful ATTORNEY-IN-FACT
JON de YSASI III
whose specimen signature is hereunder affixed, TO GET FOR ME
and in my name, place and stead, my check/checks
aforementioned, said ATTORNEY-IN-FACT being herein given the
power and authority to sign for me and in my name, place and
stead, the receipt or receipts or payroll for the said check/checks.
PROVIDED, HOWEVER, that my said ATTORNEY-IN-FACT
cannot cash the said check/checks, but to turn the same over to me
for my proper disposition.
That I HEREBY RATIFY AND CONFIRM the acts of my
Attorney-in-Fact in getting the said check/checks and signing the
receipts therefor.
That I further request that my said check/checks be made a
"CROSSED CHECK".
xxx xxx xxx
remained in force even after petitioner's employment was supposed to have been
terminated by reason of abandonment. Furthermore, petitioner's numerous requests
for an explanation regarding the stoppage of his salaries and benefits,33 the issuance
of withholding tax reports,34 as well as correspondence reporting his full recovery and
readiness to go back to work,35 and, specifically, his filing of the complaint for illegal
dismissal are hardly the acts of one who has abandoned his work.
We are likewise not impressed by the deposition of Manolo Gomez, as witness for
private respondent, ascribing statements to petitioner supposedly indicative of the
latter's intention to abandon his work. We perceive the irregularity in the taking of
such deposition without the presence of petitioner's counsel, and the failure of private
respondent to serve reasonably advance notice of its taking to said counsel, thereby
foreclosing his opportunity to
cross-examine the deponent. Private respondent also failed to serve notice thereof on
the Regional Arbitration Branch No. VI of the NLRC, as certified to by Administrative
Assistant Celestina G. Ovejera of said office.36 Fair play dictates that at such an
important stage of the proceedings, which involves the taking of testimony, both
parties must be afforded equal opportunity to examine and cross-examine a witness.
As to the monthly monetary amounts given to petitioner, whether denominated as
salary, pension, allowance or ex gratia handout, there is no question as to petitioner's
entitlement thereto inasmuch as he continued to perform services in his capacity as
farm administrator. The change in description of said amounts contained in the pay
slips or in the receipts prepared by private respondent cannot be deemed to be
determinative of petitioner's employment status in view of the peculiar circumstances
above set out. Besides, if such amounts were truly in the nature of allowances given
by a parent out of concern for his child's welfare, it is rather unusual that receipts
therefor37 should be necessary and required as if they were ordinary business
expenditures.
Neither can we subscribe to private respondent's theory that petitioner's alleged
abandonment was converted into an implied voluntary resignation on account of the
father's agreement to support his son after the latter abandoned his work. As we have
determined that no abandonment took place in this case, the monthly sums received
by petitioner, regardless of designation, were in consideration for services rendered
emanating from an employer-employee relationship and were not of a character that
can qualify them as mere civil support given out of parental duty and solicitude. We
are also hard put to imagine how abandonment can be impliedly converted into a
voluntary resignation without any positive act on the part of the employee conveying a
desire to terminate his employment. The very concept of resignation as a ground for
termination by the employee of his employment38 does not square with the elements
constitutive of abandonment.
On procedural considerations, petitioner posits that there was a violation by private
respondent of the due process requirements under the Labor Code for want of notice
and hearing.39 Private respondent, in opposition, argues that Section 2, Rule XIV,
Book V of the Omnibus Rules Implementing the Labor Code applies only to cases
where the employer seeks to terminate the services of an employee on any of the
grounds enumerated under Article 282 of the Labor Code, but not to the situation
obtaining in this case where private respondent did not dismiss petitioner on any
ground since it was petitioner who allegedly abandoned his employment.40
The due process requirements of notice and hearing applicable to labor cases are set
out in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code in this
wise:
Sec. 2. Notice of Dismissal. — Any employer who seeks to dismiss
a worker shall furnish him a written notice stating the particular acts
or omission(s) constituting the grounds for his dismissal. In cases of
abandonment of work, notice shall be served at the worker's last
known address.
xxx xxx xxx
Sec. 5. Answer and hearing. — The worker may answer the
allegations as stated against him in the notice of dismissal within a
reasonable period from receipt of such notice. The employer shall
afford the worker ample opportunity to be heard and to defend
himself with the assistance of his representative, if he so desires.
Sec. 6. Decision to dismiss. — The employer shall immediately
notify a worker in writing of a decision to dismiss him stating clearly
the reasons therefor.
Sec. 7. Right to contest dismissal. — Any decision taken by the
employer shall be without prejudice to the right of the worker to
contest the validity or legality of his dismissal by filing a complaint
with the Regional Branch of the Commission.
xxx xxx xxx
Sec. 11. Report of dismissal. — The employer shall submit a
monthly report to the Regional Office having jurisdiction over the
place of work at all dismissals effected by him during the month,
specifying therein the names of the dismissed workers, the reasons
for their dismissal, the dates of commencement and termination of
employment, the positions last held by them and such other
information as may be required by the Ministry for policy guidance
and statistical purposes.
Private respondent's argument is without merit as there can be no question that
petitioner was denied his right to due process since he was never given any notice
about his impending dismissal and the grounds therefor, much less a chance to be
heard. Even as private respondent controverts the applicability of the mandatory twin
requirements of procedural due process in this particular case, he in effect admits that
no notice was served by him on petitioner. This fact is corroborated by the certification
issued on September 5, 1984 by the Regional Director for Region VI of the
Department of Labor that no notice of termination of the employment of petitioner was
submitted thereto.41
Granting arguendo that there was abandonment in this case, it nonetheless cannot be
denied that notice still had to be served upon the employee sought to be dismissed,
as the second sentence of Section 2 of the pertinent implementing rules explicitly
requires service thereof at the employee's last known address, by way of substantial
compliance. While it is conceded that it is the employer's prerogative to terminate an
employee, especially when there is just cause therefor, the requirements of due
process cannot be lightly taken. The law does not countenance the arbitrary exercise
of such a power or prerogative when it has the effect of undermining the fundamental
guarantee of security of tenure in favor of the employee.42
On the executive labor arbiter's misplaced reliance on the Wenphil case, the Solicitor
General rejoins as follows:
The Labor Arbiter held thus:
While we are in full agreement with the
respondent as to his defense of implied
resignation and/or abandonment, records
somehow showed that he failed to notify the
Department of
Labor and Employment for his sons'
(sic)/complainants' (sic) aba(n)donment as
required by BP 130. And for this failure, the other
requisite for a valid termination by an employer
was not complied with. This however, would not
work to invalidate the otherwise (sic) existence of
a valid cause for dismissal. The validity of the
cause of dismissal must be upheld at all times
provided however that sanctions must be
imposed on the respondent for his failure to
observe the notice on due process requirement.
(Wenphil Corp. v. NLRC, G.R. No. 80587).
(Decision Labor Arbiter, at 11-12, Annex "C"
Petition), . . .
This is thus a very different case from Wenphil Corporation
v. NLRC, 170 SCRA 69. In Wenphil, the rule applied to the facts is:
once an employee is dismissed for just cause, he must not be
rewarded
re-employment and backwages for failure of his employer to
observe procedural due process. The public policy behind this is
that, it may encourage the employee to do even worse and render a
mockery of the rules of discipline required to be observed.
However, the employer must be penalized for his infraction of due
process. In the present case, however, not only was petitioner
dismissed without due process, but his dismissal is without just
cause. Petitioner did not abandon his employment because he has
a justifiable excuse.43
II. Petitioner avers that the executive labor arbiter erred in disregarding the mandatory
provisions of Article 279 of the Labor Code which entitles an illegally dismissed
employee to reinstatement and back wages and, instead, affirmed the imposition of
the penalty of P5,000.00 on private respondent for violation of the due process
requirements. Private respondent, for his part, maintains that there was error in
imposing the fine because that penalty contemplates the failure to submit the
employer's report on dismissed employees to the DOLE regional office, as required
under Section 5 (now, Section 11), Rule XIV of the implementing rules, and not the
failure to serve notice upon the employee sought to be dismissed by the employer.
Both the Constitution and the Labor Code enunciate in no uncertain terms the right of
every worker to security of tenure.44 To give teeth to this constitutional and statutory
mandates, the Labor Code spells out the relief available to an employee in case of its
denial:
Art. 279. Security of Tenure. — In cases of regular employment, the
employer shall not terminate the services of an employee except for
a just cause or when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits of
their monetary equivalent computed from the time his
compensation was withheld from him up to the time of actual
reinstatement.
Clearly, therefore, an employee is entitled to reinstatement with full back wages in the
absence of just cause for dismissal.45 The Court, however, on numerous occasions
has tempered the rigid application of said provision of the Labor Code, recognizing
that in some cases certain events may have transpired as would militate against the
practicability of granting the relief thereunder provided, and declares that where there
are strained relations between the employer and the employee, payment of back
wages and severance pay may be awarded instead of reinstatement,46 and more
particularly when managerial employees are concerned.47 Thus, where reinstatement
is no longer possible, it is therefore appropriate that the dismissed employee be given
his fair and just share of what the law accords him.48
We note with favor and give our imprimatur to the Solicitor General's ratiocination, to
wit:
As a general rule, an employee who is unjustly dismissed from work
shall be entitled to reinstatement without loss of seniority rights and
to his backwages computed from the time his compensation was
withheld up to the time of his reinstatement. (Morales vs. NLRC,
188 SCRA 295). But in Pacific Cement Company, Inc. vs. NLRC,
173 SCRA 192, this Honorable Court held that when it comes to
reinstatement, differences should be made between managers and
the ordinary workingmen. The Court concluded that a company
which no longer trusts its managers cannot operate freely in a
competitive and profitable manner. The NLRC should know the
difference between managers and ordinary workingmen. It cannot
imprudently order the reinstatement of managers with the same
ease and liberality as that of rank and file workers who had been
terminated. Similarly, a reinstatement may not be appropriate or
feasible in case of antipathy or antagonism between the parties
(Morales, vs. NLRC, 188 SCRA 295).
 In the present case, it is submitted that petitioner should not be
reinstated as farm administrator of Hacienda Manucao. The present
relationship of petitioner and private respondent (is) so strained that
a harmonious and peaceful employee-employer relationship is
hardly possible.49
III. Finally, petitioner insists on an award of moral damages, arguing that his dismissal
from employment was attended by bad faith or fraud, or constituted oppression, or
was contrary to morals, good customs or public policy. He further prays for exemplary
damages to serve as a deterrent against similar acts of unjust dismissal by other
employers.
Moral damages, under Article 2217 of the Civil Code, may be awarded to compensate
one for diverse injuries such as mental anguish, besmirched reputation, wounded
feelings, and social humiliation, provided that such injuries spring from a wrongful act
or omission of the defendant which was the proximate cause thereof.50 Exemplary
damages, under Article 2229, are imposed by way of example or correction for the
public good, in addition to moral, temperate, liquidated or compensatory damages.
They are not recoverable as a matter of right, it being left to the court to decide
whether or not they should be adjudicated.51
We are well aware of the Court's rulings in a number of cases in the past allowing
recovery of moral damages where the dismissal of the employee was attended by
bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner
contrary to morals, good customs or public policy,52 and of exemplary damages if the
dismissal was effected in a wanton, oppressive or malevolent manner.53 We do not
feel, however, that an award of the damages prayed for in this petition would be
proper even if, seemingly, the facts of the case justify their allowance. In the
aforestated cases of illegal dismissal where moral and exemplary damages were
awarded, the dismissed employees were genuinely without fault and were
undoubtedly victims of the erring employers' capricious exercise of power.
In the present case, we find that both petitioner and private respondent can equally be
faulted for fanning the flames which gave rise to and ultimately aggravated this
controversy, instead of sincerely negotiating a peaceful settlement of their disparate
claims. The records reveal how their actuations seethed with mutual antagonism and
the undeniable enmity between them negates the likelihood that either of them acted
in good faith. It is apparent that each one has a cause for damages against the other.
For this reason, we hold that no moral or exemplary damages can rightfully be
awarded to petitioner.
On this score, we are once again persuaded by the validity of the following
recommendation of the Solicitor General:
The Labor Arbiter's decision in RAB Case No. 0452-84 should be
modified. There was no voluntary abandonment in this case
because petitioner has a justifiable excuse for his absence, or such
absence does not warrant outright dismissal without notice and
hearing. Private respondent, therefore, is guilty of illegal dismissal.
He should be ordered to pay backwages for a period not exceeding
three years from date of dismissal. And in lieu of reinstatement,
petitioner may be paid separation pay equivalent to one (1)
month('s) salary for every year of service, a fraction of six months
being considered as one (1) year in accordance with recent
jurisprudence (Tan, Jr. vs. NLRC, 183 SCRA 651). But all claims for
damages should be dismissed, for both parties are equally at
fault.54
The conduct of the respective counsel of the parties, as revealed by the records,
sorely disappoints the Court and invites reproof. Both counsel may well be reminded
that their ethical duty as lawyers to represent their clients with
zeal55 goes beyond merely presenting their clients' respective causes in court. It is
just as much their responsibility, if not more importantly, to exert all reasonable efforts
to smooth over legal conflicts, preferably out of court and especially in consideration
of the direct and immediate consanguineous ties between their clients. Once again,
we reiterate that the useful function of a lawyer is not only to conduct litigation but to
avoid it whenever possible by advising settlement or withholding suit. He is often
called upon less for dramatic forensic exploits than for wise counsel in every phase of
life. He should be a mediator for concord and a conciliator for compromise, rather
than a virtuoso of technicality in the conduct of litigation.56
Rule 1.04 of the Code of Professional Responsibility explicitly provides that "(a)
lawyer shall encourage his client to avoid, end or settle the controversy if it will admit
of a fair settlement." On this point, we find that both counsel herein fell short of what
was expected of them, despite their avowed duties as officers of the court. The
records do not show that they took pains to initiate steps geared toward effecting a
rapprochement between their clients. On the contrary, their acerbic and protracted
exchanges could not but have exacerbated the situation even as they may have
found favor in the equally hostile eyes of their respective clients.
In the same manner, we find that the labor arbiter who handled this regrettable case
has been less than faithful to the letter and spirit of the Labor Code mandating that a
labor arbiter "shall exert all efforts towards the amicable settlement of a labor dispute
within his jurisdiction."57 If he ever did so, or at least entertained the thought, the
copious records of the proceedings in this controversy are barren of any reflection of
the same.
One final word. This is one decision we do not particularly relish having been obliged
to make. The task of resolving cases involving disputes among members of a family
leaves a bad taste in the mouth and an aversion in the mind, for no truly meaningful
and enduring resolution is really achieved in such situations. While we are convinced
that we have adjudicated the legal issues herein squarely on the bases of law and
jurisprudence, sans sentimentality, we are saddened by the thought that we may have
failed to bring about the reconciliation of the father and son who figured as parties to
this dispute, and that our adherence here to law and duty may unwittingly contribute
to the breaking, instead of the strengthening, of familial bonds. In fine, neither of the
parties herein actually emerges victorious. It is the Court's earnest hope, therefore,
that with the impartial exposition and extended explanation of their respective rights in
this decision, the parties may eventually see their way clear to an ultimate resolution
of their differences on more convivial terms.
WHEREFORE, the decision of respondent National Labor Relations Commission is
hereby SET ASIDE. Private respondent is ORDERED to pay petitioner back wages
for a period not exceeding three (3) years, without qualification or deduction,58 and, in
lieu of reinstatement, separation pay equivalent to one (1) month for every year of
service, a fraction of six (6) months being considered as one (1) whole year.
SO ORDERED.
G.R. No. L-26868 February 27, 1969
IN THE MATTER OF ATTORNEY LOPE E. ADRIANO Member of the Philippine
Bar. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REMIGIO ESTEBIA, accused-appellant.
SANCHEZ, J.:
Once again, this Court is confronted with the unwanted task of ascertaining whether
certain acts and conduct of a member of the Bar deserve disciplinary action.
The problem arose because of facts that follow:
One Remigio Estebia was convicted of rape by the Court of First Instance of
Samar, 1 and sentenced to suffer the capital punishment. His case came up before this
Court on review.
On December 14, 1966, Lope E. Adriano, a member of the Bar, was appointed by this
Court as Estebia's counsel de oficio. In the notice of his appointment, Adriano was
required to prepare and file his brief within thirty days from notice. He was advised that
to enable him to examine the case, the record would be at his disposal. Adriano
received this notice on December 20, 1966. On January 19, 1967, Adriano sought for
a 30-day extension to file appellant's brief in mimeographed form. On February 18,
Adriano again moved for a 20-day extension (his second). This was followed by a third
filed on March 8, for fifteen days. And a fourth on March 27, also for fifteen days. He
moved for a "last" extension of ten days on April 11. On April 21, he even sought a
special extension of five days. All these motions for extension were granted. The brief
was due on April 26, 1967. But no brief was filed.
On September 25, 1967, Adriano was ordered to show cause within ten days from
notice thereof why disciplinary action should not be taken against him for failure to file
appellant's brief despite the lapse of the time therefor. Adriano did not bother to give
any explanation.
For failing to comply with the September 25, 1967 resolution, this Court, on October 3,
1968, resolved to impose upon him a fine of P500 payable to this Court within fifteen
days from notice with a warning that upon further non-compliance with the said
resolution of September 25, 1967 within the same period of fifteen days, "more drastic
disciplinary action will be taken against him." Still, counsel paid no heed.
Finally, on December 5, 1968, this Court ordered Adriano to show cause within ten
days from notice thereof why he should not be suspended from the practice of law "for
gross misconduct and violation of his oath of office as attorney." By express order of
this Court, the resolution was personally served upon him on December 18, 1968. He
ignored the resolution.
Upon the facts just narrated, we now pass judgment.
1. By specific authority, this Court may assign an attorney to render professional aid to
a destitute appellant in a criminal case who is unable to employ an attorney.
Correspondingly, a duty is imposed upon the lawyer so assigned "to render the required
service." 2 A lawyer so appointed "as counsel for an indigent prisoner", our Canons of
Professional Ethics demand, "should always exert his best efforts" in the indigent's
behalf. 3
No excuse at all has been offered for non-presentation of appellant's brief. And yet,
between December 20, 1966, when he received notice of his appointment, and
December 5, 1968, when the last show cause order was issued by this Court, more
than sufficient time was afforded counsel to prepare and file his brief de oficio. The
death sentence below imposed was upon a plea of guilty. The record of the proceedings
leading to the lower court's sentence consists of but 31 pages. Counsel had the record
since January 19, 1967. In fact, in his third motion for extension of time, he manifested
that the drafting of apellant's brief "is more than half-way through" and that "additional
time is needed to review, effectuate the necessary corrections, put in final form and
print the said brief." In his motion for fourth extension, he intimated that the preparation
of the brief "is almost through" and that "additional time is needed to redraft and rehash
some significant portions of said brief and have the same stencilled and mimeographed
upon completion of a definitive text." His motion for last (fifth) extension of time came
with the excuse that he "suddenly got sick (influenza) in the course of redrafting and
rehashing some significant portions of said brief, which ailment hampered and
interrupted his work thereon for sometime." Finally, in his "Special Extension of Time"
to file brief, he claimed that he needed only five days from April 21, 1967 to put said
brief in final form and have the same stencilled and mimeographed.lawphi1.nêt
In the face of the fact that no brief has ever been filed, counsel's statements in his
motions for extension have gone down to the level of empty and meaningless words;
at best, have dubious claim to veracity.
It is true that he is a court-appointed counsel. But we do say that as such counsel de
oficio, he has as high a duty to the accused as one employed and paid by defendant
himself. Because, as in the case of the latter, he must exercise his best efforts and
professional ability in behalf of the person assigned to his care. His is to render effective
assistance. The accused defendant expects of him due diligence, not mere perfunctory
representation. We do not accept the paradox that responsibility is less where the
defended party is poor. It has been said that courts should "have no hesitancy in
demanding high standards of duty of attorneys appointed to defend indigent persons
charged with crime." 4 For, indeed, a lawyer who is a vanguard in the bastion of justice
is expected to have a bigger dose of social conscience and a little less of self interest.
Because of this, a lawyer should remain ever conscious of his duties to the indigent he
defends.
Worth remembering is the 1905 case of In the matter of Jose Robles Lahesa. 5 He was
counsel de oficio before the Supreme Court in two cases: one for robo en cuadrilla and
the other for homicide. He failed to take any action in behalf of the defendants in both
eases. This Court imposed upon him a fine of P200. Significant is the pronouncement
we there made that: "This court should exact from its officers and subordinates the most
scrupulous performance of their official duties, especially when negligence in the
performance of those duties necessarily result in delays in the prosecution of criminal
cases and the detention of accused persons pending appeal." The validity of the
foregoing observation remains to the present day. 6 It applies to the present case.
Here, appellant was without brief since December 20, 1966. The effect of this long delay
need not be essayed. We, therefore, find that Attorney Lope E. Adriano has violated
his oath that he will conduct himself as a lawyer according to the best of his "knowledge
and discretion".
2. An attorney's duty of prime importance is "[t]o observe and maintain the respect due
to the courts of justice and judicial officers. The first Canon of the Code of Ethics enjoins
a lawyer "to maintain towards the Courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its supreme
importance." By the oath of office, the lawyer undertook to "obey the laws as well as
the legal orders of the duly constituted authorities." In People vs. Carillo, 8 this Court's
pointed observation was that as an officer of the court, it is a lawyer's "sworn and moral
duty to help build and not destroy unnecessarily that high esteem and regard towards
the courts so essential to the proper administration of justice."
Here, we have a clear case of an attorney whose acts exhibit willful dis-obedience of
lawful orders of this Court. A cause sufficient is thus present for suspension or
disbarment. 9 Counsel has received no less than three resolutions of this Court requiring
compliance of its orders. To be recalled is that on September 25, 1967, this Court
directed him, in ten days from notice, to show cause why disciplinary action should not
be taken against him for his failure to file appellant's brief despite the lapse of the time
therefor. Nothing was done by counsel for over a year. To impress upon counsel the
gravity of his repeated failure to obey this Court's orders, on October 3,1968, a fine of
P500 was clamped upon him. He was directed to pay that fine in ten days. He was in
that order also required to file his brief in fifteen days. He was warned that more drastic
disciplinary action would be taken upon his failure to do either. Still he remained
unmoved. Then, this Court issued the peremptory order of December 5, 1968
commanding him to show cause within ten days from notice thereof why he should not
be suspended from the practice of law for gross misconduct and violation of his oath of
office. The Court made it certain that this order would reach him. He personally
acknowledged receipt thereof. He has not paid the fine. He has done nothing.
This is 1969. No brief has as yet been filed. And this, inspite of the fact that as early as
March 27, 1967, when he moved for a fourth extension of time to file his brief de oficio,
he represented to this Court that all that was needed was to redraft and to rehash some
significant portions of the brief which was almost through and to have the same
stencilled and mimeographed upon completion of a definitive text.
Disrespect is here present. Contumacy is as patent. Disciplinary action is in order.
Controlling here is the 1961 decision In the Matter of Atty. Filoteo Dianala Jo. 10 There,
as here, counsel failed to file appellant's brief (in a criminal case) despite extensions of
time granted him by this Court. Likewise, this Court issued a show-cause order why
disciplinary action should not be taken against him. The explanation was considered
unsatisfactory. This Court imposed a fine of P50 payable in ten days from notice.
Attorney Dianala Jo did not pay that fine. Came the subsequent resolution of this Court
advising him to pay the fine, otherwise, he would be arrested and confined to jam. This
warning was not heeded. On November 18, 1960, the Court resolved to give him ten
days from notice within which to explain why he should not be suspended from the
practice of law. Despite receipt of this notice, he did not care to explain his behaviour
which this Court considered as "consumacy and unwillingness to comply with the lawful
orders of this Court of which he is an officer or to conduct himself as a lawyer should,
in violation of his oath of office." He was suspended from the practice of law for three
months.
In the present case, counsel's pattern of conduct, it would seem to us, reveals a
propensity on the part of counsel to benumb appreciation of his obligation as counsel
de oficio and of the courtesy and respect that should be accorded this Court.
For the reasons given, we vote to suspend Attorney Lope E. Adriano from the practice
of law throughout the Philippines for a period of one (1) year.
Let a copy of this resolution be attached to the personal record, in this Court, of Lope
E. Adriano as member of the Bar. So ordered.
G.R. No. L-23815 June 28, 1974
ADELINO H. LEDESMA, petitioner,
vs.
HON. RAFAEL C. CLIMACO, Presiding Judge of the Court of First Instance of
Negros Occidental, Branch I, Silay City, respondent.
Adelino H. Ledesma in his own behalf.
Hon. Rafael C. Climaco in his own behalf.
FERNANDO, J.:p
What is assailed in this certiorari proceeding is an order of respondent Judge denying
a motion filed by petitioner to be allowed to withdraw as counsel de oficio.1 One of the
grounds for such a motion was his allegation that with his appointment as Election
Registrar by the Commission on Elections, he was not in a position to devote full time
to the defense of the two accused. The denial by respondent Judge of such a plea,
notwithstanding the conformity of the defendants, was due "its principal effect [being]
to delay this case."2 It was likewise noted that the prosecution had already rested and
that petitioner was previously counsel de parte, his designation in the former category
being precisely to protect him in his new position without prejudicing the accused. It
cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel
could ordinarily be characterized as a grave abuse of discretion correctible by certiorari.
There is, however, the overriding concern for the right to counsel of the accused that
must be taken seriously into consideration. In appropriate cases, it should tilt the
balance. This is not one of them. What is easily discernible was the obvious reluctance
of petitioner to comply with the responsibilities incumbent on the counsel de oficio.
Then, too, even on the assumption that he continues in his position, his volume of work
is likely to be very much less at present. There is not now the slightest pretext for him
to shirk an obligation a member of the bar, who expects to remain in good standing,
should fulfill. The petition is clearly without merit.
According to the undisputed facts, petitioner, on October 13, 1964, was appointed
Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then
and there, he commenced to discharge its duties. As he was counsel de parte for one
of the accused in a case pending in the sala of respondent Judge, he filed a motion to
withdraw as such. Not only did respondent Judge deny such motion, but he also
appointed him counsel de oficio for the two defendants. Subsequently, on November
3, 1964, petitioner filed an urgent motion to be allowed to withdraw as counsel de oficio,
premised on the policy of the Commission on Elections to require full time service as
well as on the volume or pressure of work of petitioner, which could prevent him from
handling adequately the defense. Respondent Judge, in the challenged order of
November 6, 1964, denied said motion. A motion for reconsideration having proved
futile, he instituted this certiorari proceeding.3
As noted at the outset, the petition must fail.
1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to
withdraw as counsel de oficio speaks for itself. It began with a reminder that a crime
was allegedly committed on February 17, 1962, with the proceedings having started in
the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his
order of October 16, 1964 which reads thus: "In view of the objection of the prosecution
to the motion for postponement of October 15, 1964 (alleging that counsel for the
accused cannot continue appearing in this case without the express authority of the
Commission on Elections); and since according to the prosecution there are two
witnesses who are ready to take the stand, after which the government would rest, the
motion for postponement is denied. When counsel for the accused assumed office as
Election Registrar on October 13, 1964, he knew since October 2, 1964 that the trial
would be resumed today. Nevertheless, in order not to prejudice the civil service status
of counsel for the accused, he is hereby designated counsel de oficio for the accused.
The defense obtained postponements on May 17, 1963, June 13, 1963, June 14, 1963,
October 28, 1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8,
1964 July 26, 1964, and September 7, 1964."4 Reference was then made to another
order of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma, alleging
indisposition, the continuation of the trial of this case is hereby transferred to March 9,
1964 at 8:30 in the morning. The defense is reminded that at its instance, this case has
been postponed at least eight (8) times, and that the government witnesses have to
come all the way from Manapala."5 After which, it was noted in such order that there
was no incompatibility between the duty of petitioner to the accused and to the court
and the performance of his task as an election registrar of the Commission on Elections
and that the ends of justice "would be served by allowing and requiring Mr. Ledesma
to continue as counsel de oficio, since the prosecution has already rested its case."6
2. What is readily apparent therefore, is that petitioner was less than duly mindful of his
obligation as counsel de oficio. He ought to have known that membership in the bar is
a privilege burdened with conditions. It could be that for some lawyers, especially the
neophytes in the profession, being appointed counsel de oficio is an irksome chore. For
those holding such belief, it may come as a surprise that counsel of repute and of
eminence welcome such an opportunity. It makes even more manifest that law is
indeed a profession dedicated to the ideal of service and not a mere trade. It is
understandable then why a high degree of fidelity to duty is required of one so
designated. A recent statement of the doctrine is found in People v. Daban:7 "There is
need anew in this disciplinary proceeding to lay stress on the fundamental postulate
that membership in the bar carries with it a responsibility to live up to its exacting
standard. The law is a profession, not a trade or a craft. Those enrolled in its ranks are
called upon to aid in the performance of one of the basic purposes of the State, the
administration of justice. To avoid any frustration thereof, especially in the case of an
indigent defendant, a lawyer may be required to act as counsel de oficio. The fact that
his services are rendered without remuneration should not occasion a diminution in his
zeal. Rather the contrary. This is not, of course, to ignore that other pressing matters
do compete for his attention. After all, he has his practice to attend to. That
circumstance possesses a high degree of relevance since a lawyer has to live; certainly
he cannot afford either to neglect his paying cases. Nonetheless, what is incumbent
upon him as counsel de oficio must be fulfilled."8
So it has been from the 1905 decision of In re Robles Lahesa,9 where respondent
was de oficio counsel, the opinion penned by Justice Carson making clear: "This Court
should exact from its officers and subordinates the most scrupulous performance of
their official duties, especially when negligence in the performance of those duties
necessarily results in delays in the prosecution of criminal cases ...."10 Justice Sanchez
in People v. Estebia11 reiterated such a view in these words: "It is true that he is a
court-appointed counsel. But we do say that as such counsel de oficio, he has as high
a duty to the accused as one employed and paid by defendant himself. Because, as in
the case of the latter, he must exercise his best efforts and professional ability in behalf
of the person assigned to his care. He is to render effective assistance. The accused-
defendant expects of him due diligence, not mere perfunctory representation. For,
indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger
dose of social conscience and a little less of self-interest."12
The weakness of the petition is thus quite evident.
3. If respondent Judge were required to answer the petition, it was only due to the
apprehension that considering the frame of mind of a counsel loath and reluctant to
fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel
could in effect be rendered nugatory. Its importance was rightfully stressed by Chief
Justice Moran in People v. Holgado in these words: "In criminal cases there can be no
fair hearing unless the accused be given an opportunity to be heard by counsel. The
right to be heard would be of little avail if it does not include the right to be heard by
counsel. Even the most intelligent or educated man may have no skill in the science of
law, particularly in the rules of procedure, and; without counsel, he may be convicted
not because he is guilty but because he does not know how to establish his innocence.
And this can happen more easily to persons who are ignorant or uneducated. It is for
this reason that the right to be assisted by counsel is deemed so important that it has
become a constitutional right and it is so implemented that under rules of procedure it
is not enough for the Court to apprise an accused of his right to have an attorney, it is
not enough to ask him whether he desires the aid of an attorney, but it is essential that
the court should assign one de oficio for him if he so desires and he is poor or grant
him a reasonable time to procure an attorney of his
own."13 So it was under the previous Organic Acts.14 The present Constitution is even
more emphatic. For, in addition to reiterating that the accused "shall enjoy the right to
be heard by himself and counsel,"15 there is this new provision: "Any person under
investigation for the commission of an offense shall have the right to remain silent and
to counsel, and to be informed of such right. No force, violence, threat, intimidation, or
any other means which vitiates the free will shall be used against him. Any confession
obtained in violation of this section shall be inadmissible in evidence."16
Thus is made manifest the indispensable role of a member of the Bar in the defense of
an accused. Such a consideration could have sufficed for petitioner not being allowed
to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm
for the task entrusted to him, to put matters mildly. He did point though to his
responsibility as an election registrar. Assuming his good faith, no such excuse could
be availed now. There is not likely at present, and in the immediate future, an exorbitant
demand on his time. It may likewise be assumed, considering what has been set forth
above, that petitioner would exert himself sufficiently to perform his task as defense
counsel with competence, if not with zeal, if only to erase doubts as to his fitness to
remain a member of the profession in good standing. The admonition is ever timely for
those enrolled in the ranks of legal practitioners that there are times, and this is one of
them, when duty to court and to client takes precedence over the promptings of self-
interest.
WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.
Barredo, J., took no part.
A.C. No. 7399 August 25, 2009
ANTERO J. POBRE, Complainant,
vs.
Sen. MIRIAM DEFENSOR-SANTIAGO, Respondent.
DECISION
VELASCO, JR., J.:
In his sworn letter/complaint dated December 22, 2006, with enclosures, Antero J.
Pobre invites the Court’s attention to the following excerpts of Senator Miriam Defensor-
Santiago’s speech delivered on the Senate floor:
x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal.
I am humiliated, debased, degraded. And I am not only that, I feel like throwing up to
be living my middle years in a country of this nature. I am nauseated. I spit on the face
of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no
longer interested in the position [of Chief Justice] if I was to be surrounded by idiots. I
would rather be in another environment but not in the Supreme Court of idiots x x x.
To Pobre, the foregoing statements reflected a total disrespect on the part of the
speaker towards then Chief Justice Artemio Panganiban and the other members of the
Court and constituted direct contempt of court. Accordingly, Pobre asks that disbarment
proceedings or other disciplinary actions be taken against the lady senator.
In her comment on the complaint dated April 25, 2007, Senator Santiago, through
counsel, does not deny making the aforequoted statements. She, however, explained
that those statements were covered by the constitutional provision on parliamentary
immunity, being part of a speech she delivered in the discharge of her duty as member
of Congress or its committee. The purpose of her speech, according to her, was to
bring out in the open controversial anomalies in governance with a view to future
remedial legislation. She averred that she wanted to expose what she believed "to be
an unjust act of the Judicial Bar Council [JBC]," which, after sending out public
invitations for nomination to the soon to-be vacated position of Chief Justice, would
eventually inform applicants that only incumbent justices of the Supreme Court would
qualify for nomination. She felt that the JBC should have at least given an advanced
advisory that non-sitting members of the Court, like her, would not be considered for
the position of Chief Justice.
The immunity Senator Santiago claims is rooted primarily on the provision of Article VI,
Section 11 of the Constitution, which provides: "A Senator or Member of the House of
Representative shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in session. No member
shall be questioned nor be held liable in any other place for any speech or debate
in the Congress or in any committee thereof." Explaining the import of the
underscored portion of the provision, the Court, in Osmeña, Jr. v. Pendatun, said:
Our Constitution enshrines parliamentary immunity which is a fundamental privilege
cherished in every legislative assembly of the democratic world. As old as the English
Parliament, its purpose "is to enable and encourage a representative of the public to
discharge his public trust with firmness and success" for "it is indispensably necessary
that he should enjoy the fullest liberty of speech and that he should be protected from
resentment of every one, however, powerful, to whom the exercise of that liberty may
occasion offense."1
As American jurisprudence puts it, this legislative privilege is founded upon long
experience and arises as a means of perpetuating inviolate the functioning process of
the legislative department. Without parliamentary immunity, parliament, or its
equivalent, would degenerate into a polite and ineffective debating forum. Legislators
are immune from deterrents to the uninhibited discharge of their legislative duties, not
for their private indulgence, but for the public good. The privilege would be of little value
if they could be subjected to the cost and inconvenience and distractions of a trial upon
a conclusion of the pleader, or to the hazard of a judgment against them based upon a
judge’s speculation as to the motives.2
This Court is aware of the need and has in fact been in the forefront in upholding the
institution of parliamentary immunity and promotion of free speech. Neither has the
Court lost sight of the importance of the legislative and oversight functions of the
Congress that enable this representative body to look diligently into every affair of
government, investigate and denounce anomalies, and talk about how the country and
its citizens are being served. Courts do not interfere with the legislature or its members
in the manner they perform their functions in the legislative floor or in committee rooms.
Any claim of an unworthy purpose or of the falsity and mala fides of the statement
uttered by the member of the Congress does not destroy the privilege.3 The disciplinary
authority of the assembly4 and the voters, not the courts, can properly discourage or
correct such abuses committed in the name of parliamentary immunity.5
For the above reasons, the plea of Senator Santiago for the dismissal of the complaint
for disbarment or disciplinary action is well taken. Indeed, her privilege speech is not
actionable criminally or in a disciplinary proceeding under the Rules of Court. It is felt,
however, that this could not be the last word on the matter.
The Court wishes to express its deep concern about the language Senator Santiago, a
member of the Bar, used in her speech and its effect on the administration of justice.
To the Court, the lady senator has undoubtedly crossed the limits of decency and good
professional conduct. It is at once apparent that her statements in question were
intemperate and highly improper in substance. To reiterate, she was quoted as stating
that she wanted "to spit on the face of Chief Justice Artemio Panganiban and his
cohorts in the Supreme Court," and calling the Court a "Supreme Court of idiots."
The lady senator alluded to In Re: Vicente Sotto.6 We draw her attention to the ensuing
passage in Sotto that she should have taken to heart in the first place:
x x x [I]f the people lose their confidence in the honesty and integrity of this Court and
believe that they cannot expect justice therefrom, they might be driven to take the law
into their own hands, and disorder and perhaps chaos would be the result.1avvphi1
No lawyer who has taken an oath to maintain the respect due to the courts should be
allowed to erode the people’s faith in the judiciary. In this case, the lady senator clearly
violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional Responsibility,
which respectively provide:
Canon 8, Rule 8.01.––A lawyer shall not, in his professional dealings, use language
which is abusive, offensive or otherwise improper.
Canon 11.––A lawyer shall observe and maintain the respect due to the courts and to
the judicial officers and should insist on similar conduct by others.
Senator/Atty. Santiago is a cut higher than most lawyers. Her achievements speak for
themselves. She was a former Regional Trial Court judge, a law professor, an oft-cited
authority on constitutional and international law, an author of numerous law textbooks,
and an elected senator of the land. Needless to stress, Senator Santiago, as a member
of the Bar and officer of the court, like any other, is duty-bound to uphold the dignity
and authority of this Court and to maintain the respect due its members. Lawyers in
public service are keepers of public faith and are burdened with the higher degree of
social responsibility, perhaps higher than their brethren in private practice.7 Senator
Santiago should have known, as any perceptive individual, the impact her statements
would make on the people’s faith in the integrity of the courts.
As Senator Santiago alleged, she delivered her privilege speech as a prelude to crafting
remedial legislation on the JBC. This allegation strikes the Court as an afterthought in
light of the insulting tenor of what she said. We quote the passage once more:
x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am
suicidal. I am humiliated, debased, degraded. And I am not only that, I feel like throwing
up to be living my middle years in a country of this nature. I am nauseated. I spit on the
face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am
no longer interested in the position [of Chief Justice] if I was to be surrounded by
idiots. I would rather be in another environment but not in the Supreme Court of idiots
x x x. (Emphasis ours.)
A careful re-reading of her utterances would readily show that her statements were
expressions of personal anger and frustration at not being considered for the post of
Chief Justice. In a sense, therefore, her remarks were outside the pale of her official
parliamentary functions. Even parliamentary immunity must not be allowed to be used
as a vehicle to ridicule, demean, and destroy the reputation of the Court and its
magistrates, nor as armor for personal wrath and disgust. Authorities are agreed that
parliamentary immunity is not an individual privilege accorded the individual members
of the Parliament or Congress for their personal benefit, but rather a privilege for the
benefit of the people and the institution that represents them.
To be sure, Senator Santiago could have given vent to her anger without indulging in
insulting rhetoric and offensive personalities.
Lest it be overlooked, Senator Santiago’s outburst was directly traceable to what she
considered as an "unjust act" the JBC had taken in connection with her application for
the position of Chief Justice. But while the JBC functions under the Court’s supervision,
its individual members, save perhaps for the Chief Justice who sits as the JBC’s ex-
officio chairperson,8 have no official duty to nominate candidates for appointment to the
position of Chief Justice. The Court is, thus, at a loss to understand Senator Santiago’s
wholesale and indiscriminate assault on the members of the Court and her choice of
critical and defamatory words against all of them.
At any event, equally important as the speech and debate clause of Art. VI, Sec. 11 of
the Constitution is Sec. 5(5) of Art. VIII of the Constitution that provides:
Section 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of the
law, the Integrated Bar, and legal assistance to the underprivileged. (Emphasis ours.)
The Court, besides being authorized to promulgate rules concerning pleading, practice,
and procedure in all courts, exercises specific authority to promulgate rules governing
the Integrated Bar with the end in view that the integration of the Bar will, among other
things:
(4) Shield the judiciary, which traditionally cannot defend itself except within its own
forum, from the assaults that politics and self interest may level at it, and assist it to
maintain its integrity, impartiality and independence;
xxxx
(11) Enforce rigid ethical standards x x x.9
In Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda,10 we reiterated our
pronouncement in Rheem of the Philippines v. Ferrer11 that the duty of attorneys to the
courts can only be maintained by rendering no service involving any disrespect to the
judicial office which they are bound to uphold. The Court wrote in Rheem of the
Philippines:
x x x As explicit is the first canon of legal ethics which pronounces that "[i]t is the duty
of a lawyer to maintain towards the Courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its supreme
importance." That same canon, as a corollary, makes it peculiarly incumbent upon
lawyers to support the courts against "unjust criticism and clamor." And more. The
attorney’s oath solemnly binds him to a conduct that should be "with all good fidelity x
x x to the courts."
Also, in Sorreda, the Court revisited its holding in Surigao Mineral Reservation Board
v. Cloribel12 that:
A lawyer is an officer of the courts; he is, "like the court itself, an instrument or agency
to advance the ends of justice." His duty is to uphold the dignity and authority of the
courts to which he owes fidelity, "not to promote distrust in the administration of justice."
Faith in the courts, a lawyer should seek to preserve. For, to undermine the judicial
edifice "is disastrous to the continuity of government and to the attainment of the
liberties of the people." Thus has it been said of a lawyer that "[a]s an officer of the
court, it is his sworn and moral duty to help build and not destroy unnecessarily that
high esteem and regard towards the courts so essential to the proper administration of
justice."13
The lady senator belongs to the legal profession bound by the exacting injunction of a
strict Code. Society has entrusted that profession with the administration of the law and
dispensation of justice. Generally speaking, a lawyer holding a government office may
not be disciplined as a member of the Bar for misconduct committed while in the
discharge of official duties, unless said misconduct also constitutes a violation of his/her
oath as a lawyer.14
Lawyers may be disciplined even for any conduct committed in their private capacity,
as long as their misconduct reflects their want of probity or good demeanor,15 a good
character being an essential qualification for the admission to the practice of law and
for continuance of such privilege. When the Code of Professional Responsibility or the
Rules of Court speaks of "conduct" or "misconduct," the reference is not confined to
one’s behavior exhibited in connection with the performance of lawyers’ professional
duties, but also covers any misconduct, which––albeit unrelated to the actual practice
of their profession––would show them to be unfit for the office and unworthy of the
privileges which their license and the law invest in them.16
This Court, in its unceasing quest to promote the people’s faith in courts and trust in
the rule of law, has consistently exercised its disciplinary authority on lawyers who, for
malevolent purpose or personal malice, attempt to obstruct the orderly administration
of justice, trifle with the integrity of courts, and embarrass or, worse, malign the men
and women who compose them. We have done it in the case of former Senator Vicente
Sotto in Sotto, in the case of Atty. Noel Sorreda in Sorreda, and in the case of Atty.
Francisco B. Cruz in Tacordan v. Ang17 who repeatedly insulted and threatened the
Court in a most insolent manner.
The Court is not hesitant to impose some form of disciplinary sanctions on Senator/Atty.
Santiago for what otherwise would have constituted an act of utter disrespect on her
part towards the Court and its members. The factual and legal circumstances of this
case, however, deter the Court from doing so, even without any sign of remorse from
her. Basic constitutional consideration dictates this kind of disposition.
We, however, would be remiss in our duty if we let the Senator’s offensive and
disrespectful language that definitely tended to denigrate the institution pass by. It is
imperative on our part to re-instill in Senator/Atty. Santiago her duty to respect courts
of justice, especially this Tribunal, and remind her anew that the parliamentary non-
accountability thus granted to members of Congress is not to protect them against
prosecutions for their own benefit, but to enable them, as the people’s
representatives, to perform the functions of their office without fear of being made
responsible before the courts or other forums outside the congressional hall.18 It is
intended to protect members of Congress against government pressure and
intimidation aimed at influencing the decision-making prerogatives of Congress and its
members.
The Rules of the Senate itself contains a provision on Unparliamentary Acts and
Language that enjoins a Senator from using, under any circumstance, "offensive or
improper language against another Senator or against any public institution."19 But
as to Senator Santiago’s unparliamentary remarks, the Senate President had not
apparently called her to order, let alone referred the matter to the Senate Ethics
Committee for appropriate disciplinary action, as the Rules dictates under such
circumstance.20 The lady senator clearly violated the rules of her own chamber. It is
unfortunate that her peers bent backwards and avoided imposing their own rules on
her.
Finally, the lady senator questions Pobre’s motives in filing his complaint, stating that
disciplinary proceedings must be undertaken solely for the public welfare. We cannot
agree with her more. We cannot overstress that the senator’s use of intemperate
language to demean and denigrate the highest court of the land is a clear violation of
the duty of respect lawyers owe to the courts.21
Finally, the Senator asserts that complainant Pobre has failed to prove that she in fact
made the statements in question. Suffice it to say in this regard that, although she has
not categorically denied making such statements, she has unequivocally said making
them as part of her privilege speech. Her implied admission is good enough for the
Court.
WHEREFORE, the letter-complaint of Antero J. Pobre against Senator/Atty. Miriam
Defensor-Santiago is, conformably to Art. VI, Sec. 11 of the Constitution, DISMISSED.
SO ORDERED.
Mandaluyong
A.C. No. 7547 September 4, 2009
GREGORY U. CHAN, Complainant,
vs.
NLRC COMMISSIONER ROMEO L. GO and ATTY. JOSE RAULITO E.
PARAS, Respondents.
DECISION
YNARES-SANTIAGO, J.:
In a verifiedComplaint1 dated June 5, 2007, complainant Gregory U. Chan prayed for
the disbarment or imposition of proper disciplinary sanctions upon respondents
Commissioner Romeo Go of the National Labor Relations Commission (NLRC) and
Atty. Jose Raulito E. Paras for perpetrating acts unbecoming and degrading to the legal
profession, in violation of the Code of Professional Responsibility,2 Canons of
Professional Ethics,3 and the Rules of Court.4
Complainant alleged that respondents are influence peddlers who pride themselves in
being able to direct the outcome of cases pending before the NLRC; that respondents
belittled and denigrated the nobility of the legal profession by indicating that decisions
of the NLRC are merely drafted by humble secretaries or clerks who write in
accordance to their mandate; and that respondents attempted to extort money from
him.
The present controversy stemmed from an illegal dismissal case5 filed by Susan Que
Tiu against complainant and his companies. On July 18, 2003, the labor arbiter6 ruled
in favor of Tiu and ordered her employers to pay backwages, separation pay, unpaid
commissions, and 10% attorney’s fees.7 Pending resolution of their appeal before
the NLRC, complainant alleged that respondents Go and Paras attempted to extort
money from him in behalf of Tiu. He narrated that respondent Go arranged for meetings
at expensive restaurants to wit:
First Meeting on September 16, 2003 at Yuraken Japanese Restaurant, Diamond
Hotel, Manila
Complainant alleged that it was during this dinner when respondents
were first introduced to him, his wife Jenny, his brother Glenn, and
the latter’s mother-in-law Mrs. Ban Ha; that respondent Go claimed
that he is a very powerful "high ranking" commissioner at the NLRC;
that respondents were personally overseeing the developments of
the labor case although it was pending before another division; that
it was merely respondent Go’s secretary or clerk who would be
drafting the decision of the said case; and that respondents told him
to simply give in to Tiu’s demands.8
Second Meeting on September 26, 2003 at Akiga Japanese Restaurant,
Complainant alleged that respondents brought with them a certain
Mr. Alfredo Lim, a former schoolmate of respondent Go and a
godfather of Tiu; that Lim demanded the settlement of Tiu’s claims;
that he illustrated he is not a bad employer Tiu painted him to be as
the latter even invited him to her wedding; that respondent Go offered
him the services of respondent Paras as legal counsel; and that
respondents asked him to give them pertinent documents relating to
the labor case in their next meeting.9
Third Meeting on October 20, 2003 at Korean Village Restaurant, Manila
Complainant alleged that his group brought their company
accountant Ms. Leah Pascual, while respondents brought Atty.
Jessie Andres who was introduced to be connected with then
Senator Noli De Castro; that he showed the group the company
documents proving payment to Tiu of her sales commission; that
respondents did not bother expressing interest in examining the
documents; that respondent Go left the dinner early for another
business commitment; and that the remaining people instead
discussed his possible support for Sen. De Castro’s campaign.10
Fourth Meeting on December 2, 2003at Akiga Japanese Restaurant, Mandaluyong
Complainant alleged that he did not personally attend the meeting to
avoid a confrontation with Tiu; that Jenny, Glenn, and Pascual met
with respondents, Lim, Tiu, and her husband; that respondent Go
dismissed the documents presented by Jenny and claimed that it
was his tactic for Tiu to submit a sur-rejoinder with photo-
attachments11 showing MCC Industrial Sales, Corp. and Sanyo Seiki
Industrial Sales, Corp. conducting business in one office; that
respondent Go goaded Jenny to give in to Tiu’s demands as the latter
was suffering from cancer; that Jenny refused the demands,
prompting her to lose her appetite and walk out to regain her
composure; and that respondent and his companions simply enjoyed
their free sumptuous meals.12
 Fifth Meeting on February 24, 2004 at California Pizza Kitchen, Shangri-La Plaza
Mall, Mandaluyong
Complainant alleged that his wife Jenny again met with respondent
Go, Mr. Lim, Ms. Que Tiu and her husband; that Tiu lowered the
settlement amount to P450,000.00; that Jenny insisted that Tiu’s
claim should not exceed P198,000.00; and that respondent Go
prevented Jenny from walking out of their meeting with assurances
that he will further convince Tiu.13
Sixth Meeting on March 3, 2004 at Palm Court Café, Diamond Hotel, Manila
Complainant alleged that he, together with his wife Jenny, and
brother Glenn met with respondents Paras and Go and his wife;
and that respondent Go assured them that it’s going to be their last
meeting and Tiu will just settle for P300,000.00.14
Seventh Meeting on October 4, 2004 at Una Mas, Greenhills
Complainant alleged that respondent Paras asked for another dinner
appointment to which he sent his brother Glenn to attend; that
respondent Paras disclosed during the meeting that the matter was
no longer in their hands as they decided not to push through with the
deal with Tiu; that Glenn was shocked at respondent’s fraudulent
duplicity that he left the restaurant in a huff after paying the bill.15
As proof of these meetings, complainant attached receipts16 for the meals ordered at
the above-mentioned establishments and affidavits of Jenny Chan,17 Leah
Pascual,18 and Glenn Chan,19 recounting the matters that transpired therein.
On September 10, 2004, the NLRC affirmed the Labor Arbiter’s Decision, but removed
the award of separation pay and ordered complainant to reinstate Tiu to her former
position without loss of seniority rights and privileges.20 On July 12, 2005, the NLRC
denied the parties’ Motions for Reconsideration and sustained its earlier Resolution.21
On June 5, 2007, or simultaneously with the filing of the present administrative
complaint, complainant filed a case for Grave Misconduct22 against respondents Go
and Paras with the Office of the Ombudsman, alleging the same set of facts in the
administrative case.
Previously, complainant also filed an Estafa case23 against Susan Que Tiu, Ramon
Givertz, and Zed Metal and Construction Corporation. However, it was dismissed by
the Office of the City Prosecutor of Manila in a Resolution24 dated May 22, 2006, for
insufficiency of evidence.1avvphi1
Thereafter, in April 2007, respondent Paras filed a complaint against complainant Chan
for Grave Oral Slander, Serious Slander by Deed, Grave Threats, and Alarms and
Scandals25 with the Office of the City Prosecutor of Mandaluyong. He alleged that
without provocation, complainant suddenly pushed his left shoulder and hurled insults
and invectives when his group bumped onto him on March 31, 2007 at Fish and Co.
restaurant in Shangri-La Mall at Mandaluyong City.
On July 9, 2007, complainant filed a Manifestation26 stating that he received death
threats27 about two weeks after filing the present complaint.
On July 23, 2007, the Court of Appeals affirmed the Resolutions of the NLRC, with
modification that the total monetary award should be P737,757.41.28 Complainant and
his companies thus filed a Petition for Review on Certiorari with this Court which is still
pending resolution. 29
In his Comment,30 respondent Paras alleged that the present complaint, like the
Ombudsman case for Grave Misconduct, was filed by complainant to gain leverage
against him for the criminal case (I.S. No. 07-71604-D) he filed against the latter. Paras
denied conspiring with Go in the commission of the acts complained of. He likewise
denied knowing Tiu or the labor case. As for the enumerated meetings, respondent
Paras alleged that he was not present on September 16, 2003, December 2, 2003, and
February 24, 2004; that he merely fetched respondent Go at the meeting on September
26, 2003; that he was present during the October 20, 2003 meeting, but deemed the
same to be social dinner rather than a conciliation/mediation for settlement; that during
the March 3, 2004 meeting, he merely accompanied respondent Go and his wife
because they previously came from an earlier dinner; that it was complainant’s brother
Glenn who asked for an appointment on October 4, 2004 and offered to secure his
services as their counsel for the labor case against Tiu; and that days later, Glenn even
asked for his services regarding a collection case which he declined because it was his
law firm’s policy not to accept simple collection cases.
Respondent Paras also alleged that complainant’s charge of violation of Rule 6.02,
Canon 6 of the Code of Professional Responsibility is misplaced as he was not a lawyer
in the government service at the time material to the acts complained of.
Meanwhile, respondent Go labelled as blatant lies the allegations of Chan in his
complaint. He alleged that he met Chan, Jenny, and Glenn, through his mother’s close
friends Yek Ti L. Chua and Ban Ha; that he came to know of the labor case of Susan
Que Tiu during a casual bridge session with the latter’s godfather Alfredo Lim; that it
was complainant who organized the meetings and persisted in asking his help
regarding the said labor case; that he refused to help complainant because he would
not want to influence his colleagues in the NLRC to reverse their judgments; that he did
not impress upon complainant and his family that he is engaged in influence peddling;
that when he relayed to Lim complainant’s intention to amicably settle the case, Lim
agreed to be introduced to complainant; that he never introduced respondent Paras as
his associate; that he only assisted the parties during the conciliation meetings but
never coerced complainant to give in to the demands of Lim; and that he did not extort
money from complainant.
To substantiate his claim, Go submitted affidavits of Yek Ti L. Chua;31 Evangeline C.
Apanay32 and Marina R. Taculao, 33 both of whom are administrative personnel
assigned at his office in the NLRC.
The duty of the Court towards members of the bar is not only limited to the
administration of discipline to those found culpable of misconduct but also to the
protection of the reputation of those frivolously or maliciously charged. In disbarment
proceedings, the burden of proof is upon the complainant and this Court will exercise
its disciplinary power only if the complainant establishes his case by clear, convincing
and satisfactory evidence.34
After a careful study of the instant case, we find no sufficient evidence to support
complainant’s claim. Except for complainant’s bare allegations, there is no proof that
respondents engaged in influence peddling, extortion, or in any unlawful, dishonest,
immoral, or deceitful conduct. It is axiomatic that he who alleges the same has the onus
of validating it.351avvph!1
We note that the labor case of Tiu has already been decided in the latter’s favor prior
the alleged meetings. Even after the said meetings, the NLRC still affirmed the decision
of the labor arbiter which was adverse to herein complainant and his companies. If
respondent Go really agreed to influence the outcome of the case, then the results
would have been otherwise.
In addition, the receipts presented by complainant do not necessarily prove the
presence of respondents in said meetings. They only show that certain persons went
to the aforenamed restaurants to eat and meet. However, it could not be said with
certainty that respondents were among them – based only on the receipts presented.
Moreover, the alleged representations by respondent Go regarding the drafting of
NLRC decisions were refuted by the affidavits executed by Apanay and Taculao. Also,
no proof was presented in support of the allegation regarding the belittling or
denigration of the legal profession and the NLRC.1avvphi1
Significantly, the present complaint was filed only after the lapse of almost four years
since the alleged extortion was made or two years since the resolution of the labor case
by the NLRC. Complainant did not offer any reason for the belated filing of the case
thus giving the impression that it was filed as a leverage against the case for Grave
Oral Slander, Serious Slander by Deed, Grave Threats, and Alarms and Scandals (I.S.
No. 07-71604-D) filed by Paras against complainant.
Also, the ruling of the labor arbiter was favorable to Tiu; hence, there was no need for
respondents to get in touch with complainant to settle the case in Tiu’s behalf. In
contrast, complainant who was the defeated party in the labor case has more reason
to seek avenues to convince Tiu to accept a lower settlement amount. This Court is
thus convinced that it was the complainant who arranged to meet with respondent Go
and not the contrary as he averred.
We cannot lend credence to complainant’s allegation that he or his group met with
respondents six or seven times. Complainant and his group were allegedly angered,
insulted, and offended by respondents yet they still agreed to foot the bills for the meals.
Even after the denial by the NLRC of their motion for reconsideration, with nothing more
to discuss, complainants still allegedly met with respondents. These actions are not in
accord with human behavior, logic, and common sense. At this time, complainant would
have known that respondents could not deliver on their alleged promises to influence
the outcome of the case in his favor; that they were only trying to extort money from
him, and abusing him for free meals. As such, he should have stopped meeting them,
or immediately filed criminal and/or administrative charges against them, or at the least,
refused to foot the bill for their meals.
This Court agrees with respondent Paras that complainant’s charge of violation of Rule
6.02, Canon 6 of the Code of Professional Responsibility is misplaced because he was
not a government lawyer at the time material to the acts complained of. This fact is
certified36 by the Training and Administrative Manager37 of Lepanto Consolidated
Mining Co. where respondent Paras was employed as Assistant Manager, then as
Manager for Legal Services and Government Affairs from July 31, 2000 to March 31,
2004.
WHEREFORE, the complaint against respondents Atty. Jose Raulito E. Paras and
NLRC Commissioner Romeo Go is DISMISSED for lack of merit.
SO ORDERED.
A.M. No. 08-6-352-RTC August 19, 2009
QUERY OF ATTY. KAREN M. SILVERIO-BUFFE, FORMER Clerk of Court -
BRANCH 81, ROMBLON, ROMBLON - ON THE PROHIBITION FROM ENGAGING
IN THE PRIVATE PRACTICE OF LAW.
DECISION
BRION, J.:
This administrative matter started as a letter-query dated March 4, 2008 of Atty.
Karen M. Silverio-Buffe (Atty. Buffe) addressed to the Office of the Court
Administrator, which query the latter referred to the Court for consideration. In the
course of its action on the matter, the Court discovered that the query was beyond
pure policy interpretation and referred to the actual situation of Atty. Buffe, and,
hence, was a matter that required concrete action on the factual situation presented.
The query, as originally framed, related to Section 7(b)(2) of Republic Act (R.A.) No.
6713, as amended (or the Code of Conduct and Ethical Standards for Public Officials
and Employees). This provision places a limitation on public officials and employees
during their incumbency, and those already separated from government employment
for a period of one (1) year after separation, in engaging in the private practice of their
profession. Section 7(b)(2) of R.A. No. 6713 provides:
SECTION 7. Prohibited Acts and Transactions. – In addition to acts and omissions
of public officials and employees now prescribed in the Constitution and existing laws,
the following shall constitute prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:
xxx
(b) Outside employment and other activities related thereto. – Public officials and
employees during their incumbency shall not:
xxx
(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided, that such practice will not conflict or tend to
conflict with their official functions; or
xxx
These prohibitions shall continue to apply for a period of one (1) year after
resignation, retirement, or separation from public office, except in the case of
subparagraph (b) (2) above, but the professional concerned cannot practice his
profession in connection with any matter before the office he used to be with, in which
case the one-year prohibition shall likewise apply.
In her letter-query, Atty. Buffe posed these questions: "Why may an incumbent
engage in private practice under (b)(2), assuming the same does not conflict or tend
to conflict with his official duties, but a non-incumbent like myself cannot, as is
apparently prohibited by the last paragraph of Sec. 7? Why is the former allowed, who
is still occupying the very public position that he is liable to exploit, but a non-
incumbent like myself – who is no longer in a position of possible abuse/exploitation –
cannot?"1
The query arose because Atty. Buffe previously worked as Clerk of Court VI of the
Regional Trial Court (RTC), Branch 81 of Romblon; she resigned from her position
effective February 1, 2008. Thereafter (and within the one-year period of prohibition
mentioned in the above-quoted provision), she engaged in the private practice of law
by appearing as private counsel in several cases before RTC-Branch 81 of Romblon.
Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives preferential treatment
to an incumbent public employee, who may engage in the private practice of his
profession so long as this practice does not conflict or tend to conflict with his official
functions. In contrast, a public official or employee who has retired, resigned, or has
been separated from government service like her, is prohibited from engaging in
private practice on any matter before the office where she used to work, for a period
of one (1) year from the date of her separation from government employment.
Atty. Buffe further alleged that the intention of the above prohibition is to remove the
exercise of clout, influence or privity to insider information, which the incumbent public
employee may use in the private practice of his profession. However, this situation did
not obtain in her case, since she had already resigned as Clerk of Court of RTC-
Branch 18 of Romblon. She advanced the view that she could engage in the private
practice of law before RTC-Branch 81 of Romblon, so long as her appearance as
legal counsel shall not conflict or tend to conflict with her former duties as former
Clerk of Court of that Branch.
Then Deputy Court Administrator (now Court Administrator) Jose P. Perez made the
following observations when the matter was referred to him:
The general intent of the law, as defined in its title is "to uphold the time-honored
principle of public office being a public trust." Section 4 thereof provides for the norms
of conduct of public officials and employees, among others: (a) commitment to public
interest; (b) professionalism; and (c) justness and sincerity. Of particular significance
is the statement under professionalism that "[t]hey [public officials and employees]
shall endeavor to discourage wrong perceptions of their roles as dispensers or
peddlers of undue patronage.
Thus, it may be well to say that the prohibition was intended to avoid any impropriety
or the appearance of impropriety which may occur in any transaction between the
retired government employee and his former colleagues, subordinates or superiors
brought about by familiarity, moral ascendancy or undue influence, as the case may
be.21avvphi1
Subsequently, in a Minute Resolution dated July 15, 2008, we resolved to refer this
case to the Office of the Chief Attorney (OCAT) for evaluation, report and
recommendation.3 The OCAT took the view that:
The premise of the query is erroneous. She interprets Section 7 (b) (2) as a blanket
authority for an incumbent clerk of court to practice law. Clearly, there is a misreading
of that provision of law.4 and further observed:
The confusion apparently lies in the use of the term "such practice" after the phrase
"provided that." It may indeed be misinterpreted as modifying the phrase "engage in
the private practice of their profession" should be prefatory sentence that public
officials "during their incumbency shall not" be disregarded. However, read in its
entirety, "such practice" may only refer to practice "authorized by the Constitution or
law" or the exception to the prohibition against the practice of profession. The term
"law" was intended by the legislature to include "a memorandum or a circular or an
administrative order issued pursuant to the authority of law."
xxx
The interpretation that Section 7 (b) (2) generally prohibits incumbent public officials
and employees from engaging in the practice of law, which is declared therein a
prohibited and unlawful act, accords with the constitutional policy on accountability of
public officers stated in Article XI of the Constitution …
xxx
The policy thus requires public officials and employees to devote full time public
service so that in case of conflict between personal and public interest, the latter
should take precedence over the former.5[Footnotes omitted]
With respect to lawyers in the judiciary, the OCAT pointed to Section 5, Canon 3 of
the Code of Conduct for Court Personnel – the rule that deals with outside
employment by an incumbent judicial employee and which limits such outside
employment to one that "does not require the practice of law."6 The prohibition to
practice law with respect to any matter where they have intervened while in the
government service is reiterated in Rule 6.03, Canon 6 of the Code of Professional
Responsibility, which governs the conduct of lawyers in the government service.7
In view of the OCAT findings and recommendations, we issued
an En Banc Resolution dated November 11, 2008 directing the Court Administrator to
draft and submit to the Court a circular on the practice of profession during
employment and within one year from resignation, retirement from or cessation of
employment in the Judiciary. We likewise required the Executive Judge of the RTC of
Romblon to (i) verify if Atty. Buffe had appeared as counsel during her incumbency as
clerk of court and after her resignation in February 2008, and (ii) submit to the Court a
report on his verification.8
In compliance with this our Resolution, Executive Judge Ramiro R. Geronimo of RTC-
Branch 81 of Romblon reported the following appearances made by Atty. Buffe:
(1) Civil Case No. V-1564, entitled Oscar Madrigal Moreno, Jr. et al. versus
Leonardo M. Macalam, et al. on February 19, 2008, March 4, 2008, April 10,
2008 and July 9, 2008 as counsel for the plaintiffs;
(2) Civil Case No. V-1620, entitled Melchor M. Manal versus Zosimo Malasa,
et al., on (sic) February, 2008, as counsel for the plaintiff;
(3) Civil Case No. V-1396, entitled Solomon Y. Mayor versus Jose J. Mayor,
on February 21, 2008, as counsel for the plaintiff; and
(4) Civil Case No. V-1639, entitled Philippine National Bank versus Sps.
Mariano and Olivia Silverio, on April 11, 2008 and July 9, 2008, as counsel
for the defendants.
Atty. Buffe herself was furnished a copy of our November 11,
2008 En Banc Resolution and she filed a Manifestation (received by the Court on
February 2, 2009) acknowledging receipt of our November 11, 2008 Resolution. She
likewise stated that her appearances are part of Branch 81 records. As well, she
informed the Court that she had previously taken the following judicial remedies in
regard to the above query:
1. SCA No. 089119028 (Annex C), filed with Branch 54 of the RTC Manila,
which had been dismissed without prejudice on July 23, 2008 (Annex D) – a
recourse taken when undersigned was still a private practitioner;
2. SCA No. 08120423 (Annex A), filed with Branch 17 of the RTC of Manila,
which had been also dismissed (with or without prejudice) on December 4,
2008 (Annex B) – a recourse taken when undersigned was already a public
prosecutor appearing before the same Branch 81, after she took her oath of
office as such on August 15, 2008.[Emphasis supplied]
She also made known her intent to elevate the dismissal of the above cases "so that
eventually, the Honorable Supreme Court may put to rest the legal issue/s presented
in the above petitions which is, why is it that R.A. No. 6713, Sec. 7 (b)(2) and last par.
thereof, apparently contains an express prohibition (valid or invalid) on the private
practice of undersigned’s law profession, before Branch 81, while on the other hand
not containing a similar, express prohibition in regard to undersigned’s practice of
profession, before the same court, as a public prosecutor – within the supposedly
restricted 1-year period?"
OUR ACTION AND RULING
Preliminary Considerations
As we stated at the outset, this administrative matter confronts us, not merely with the
task of determining how the Court will respond to the query, both with respect to the
substance and form (as the Court does not give interpretative opinions9 but can issue
circulars and regulations relating to pleading, practice and procedure in all
courts10 and in the exercise of its administrative supervision over all courts and
personnel thereof11), but also with the task of responding to admitted violations of
Section 7 (b)(2) of R.A. No. 6713 and to multiple recourses on the same subject.
After our directive to the Office of the Court Administrator to issue a circular on the
subject of the query for the guidance of all personnel in the Judiciary, we consider this
aspect of the present administrative matter a finished task, subject only to
confirmatory closure when the OCA reports the completion of the undertaking to us.
Atty. Buffe’s admitted appearance, before the very same branch she served and
immediately after her resignation, is a violation that we cannot close our eyes to and
that she cannot run away from under the cover of the letter-query she filed and her
petition for declaratory relief, whose dismissal she manifested she would pursue up to
our level. We note that at the time she filed her letter-query (on March 4, 2008), Atty.
Buffe had already appeared before Branch 81 in at least three (3) cases. The terms of
Section 7 (b)(2) of R.A. No. 6713 did not deter her in any way and her misgivings
about the fairness of the law cannot excuse any resulting violation she committed. In
other words, she took the risk of appearing before her own Branch and should suffer
the consequences of the risk she took.
Nor can she hide behind the two declaratory relief petitions she filed, both of which
were dismissed, and her intent to elevate the dismissal to this Court for resolution.
The first, filed before the RTC, Branch 54, Manila, was dismissed on July 23, 2008
because the "court declined to exercise the power to declare rights as prayed for in
the petition, as any decision that may be rendered will be inutile and will not generally
terminate the uncertainty or controversy."12 The second, filed with the RTC, Branch
17, Manila, was dismissed for being an inappropriate remedy after the dismissal
ordered by the RTC, Branch 54, Manila, on December 4, 2008.13 Under these
circumstances, we see nothing to deter us from ruling on Atty. Buffe’s actions, as no
actual court case other than the present administrative case, is now actually pending
on the issue she raised. On the contrary, we see from Atty. Buffe’s recourse to this
Court and the filing of the two declaratory petitions the intent to shop for a favorable
answer to her query. We shall duly consider this circumstance in our action on the
case.
A last matter to consider before we proceed to the merits of Atty. Buffe’s actions
relates to possible objections on procedural due process grounds, as we have not
made any formal directive to Atty. Buffe to explain why she should not be penalized
for her appearance before Branch 81 soon after her resignation from that Branch. The
essence of due process is the grant of the opportunity to be heard; what it abhors is
the lack of the opportunity to be heard.14 The records of this case show that Atty.
Buffe has been amply heard with respect to her actions. She was notified, and she
even responded to our November 11, 2008 directive for the Executive Judge of the
RTC of Romblon to report on Atty. Buffe’s appearances before Branch 81; she
expressly manifested that these appearances were part of the Branch records. Her
legal positions on these appearances have also been expressed before this
Court; first, in her original letter-query, and subsequently, in her Manifestation. Thus,
no due process consideration needs to deter us from considering the legal
consequences of her appearances in her previous Branch within a year from her
resignation.
The Governing Law: Section 7 of R.A. No. 6713
Section 7 of R.A. No. 6713 generally provides for the prohibited acts and transactions
of public officials and employees. Subsection (b)(2) prohibits them from engaging in
the private practice of their profession during their incumbency. As an exception, a
public official or employee can engage in the practice of his or her profession under
the following conditions: first, the private practice is authorized by the Constitution or
by the law; and second, the practice will not conflict, or tend to conflict, with his or her
official functions.
The Section 7 prohibitions continue to apply for a period of one year after the public
official or employee’s resignation, retirement, or separation from public office, except
for the private practice of profession under subsection (b)(2), which can already be
undertaken even within the one-year prohibition period. As an exception to this
exception, the one-year prohibited period applies with respect to any matter before
the office the public officer or employee used to work with.
The Section 7 prohibitions are predicated on the principle that public office is a public
trust; and serve to remove any impropriety, real or imagined, which may occur in
government transactions between a former government official or employee and his
or her former colleagues, subordinates or superiors. The prohibitions also promote
the observance and the efficient use of every moment of the prescribed office hours
to serve the public.15
Parenthetically, in the case of court employees, Section 7(b)(2) of R.A. No. 6713 is
not the only prohibition to contend with; Section 5, Canon 3 of the Code of Conduct
for Court Personnel also applies. The latter provision provides the definitive rule on
the "outside employment" that an incumbent court official or court employee may
undertake in addition to his official duties:
Outside employment may be allowed by the head of office provided it complies with
all of the following requirements:
(a) The outside employment is not with a person or entity that practices law
before the courts or conducts business with the Judiciary;
(b) The outside employment can be performed outside of normal working
hours and is not incompatible with the performance of the court personnel’s
duties and responsibilities;
(c) That outside employment does not require the practice of law; Provided,
however, that court personnel may render services as professor, lecturer, or
resource person in law schools, review or continuing education centers or
similar institutions;
(d) The outside employment does not require or induce the court personnel
to disclose confidential information acquired while performing officials duties;
(e) The outside employment shall not be with the legislative or executive
branch of government, unless specifically authorized by the Supreme Court.
Where a conflict of interest exists, may reasonably appear to exist, or where the
outside employment reflects adversely on the integrity of the Judiciary, the court
personnel shall not accept outside employment. [Emphasis supplied]
In both the above discussed aspect of R.A. No. 6713 and the quoted Canon 3, the
practice of law is covered; the practice of law is a practice of profession, while Canon
3 specifically mentions any outside employment requiring the practice of law.
In Cayetano v. Monsod,16 we defined the practice of law as any activity, in and out of
court, that requires the application of law, legal procedure, knowledge, training and
experience. Moreover, we ruled that to engage in the practice of law is to perform
those acts which are characteristics of the profession; to practice law is to give notice
or render any kind of service, which device or service requires the use in any degree
of legal knowledge or skill.17 Under both provisions, a common objective is to avoid
any conflict of interest on the part of the employee who may wittingly or unwittingly
use confidential information acquired from his employment, or use his or her
familiarity with court personnel still with the previous office.
After separation from the service, Section 5, Canon 3 of the Code of Conduct for
Court Personnel ceases to apply as it applies specifically to incumbents, but Section 7
and its subsection (b)(2) of R.A. No. 6713 continue to apply to the extent discussed
above. Atty. Buffe’s situation falls under Section 7.
Atty. Buffe’s Situation
A distinctive feature of this administrative matter is Atty. Buffe’s admission that she
immediately engaged in private practice of law within the one-year period of
prohibition stated in Section 7(b)(2) of R.A. No. 6713. We find it noteworthy, too, that
she is aware of this provision and only objects to its application to her situation; she
perceives it to be unfair that she cannot practice before her old office – Branch 81 –
for a year immediately after resignation, as she believes that her only limitation is in
matters where a conflict of interest exists between her appearance as counsel and
her former duties as Clerk of Court. She believes that Section 7 (b)(2) gives
preferential treatment to incumbent public officials and employees as against those
already separated from government employment.
Atty. Buffe apparently misreads the law. As the OCAT aptly stated, she interprets
Section 7 (b)(2) as a blanket authority for an incumbent clerk of court to practice law.
We reiterate what we have explained above, that the general rule under Section 7
(b)(2) is to bar public officials and employees from the practice of their professions; it
is unlawful under this general rule for clerks of court to practice their profession. By
way of exception, they can practice their profession if the Constitution or the law
allows them, but no conflict of interest must exist between their current duties and the
practice of their profession. As we also mentioned above, no chance exists for
lawyers in the Judiciary to practice their profession, as they are in fact expressly
prohibited by Section 5, Canon 3 of the Code of Conduct for Court Personnel from
doing so. Under both the general rule and the exceptions, therefore, Atty. Buffe’s
basic premise is misplaced.
As we discussed above, a clerk of court can already engage in the practice of law
immediately after her separation from the service and without any period limitation
that applies to other prohibitions under Section 7 of R.A. No. 6713. The clerk of
court’s limitation is that she cannot practice her profession within one year before the
office where he or she used to work with. In a comparison between a resigned, retired
or separated official or employee, on the one hand, and an incumbent official or
employee, on the other, the former has the advantage because the limitation is only
with respect to the office he or she used to work with and only for a period of one
year. The incumbent cannot practice at all, save only where specifically allowed by
the Constitution and the law and only in areas where no conflict of interests exists.
This analysis again disproves Atty. Buffe’s basic premises.
A worrisome aspect of Atty. Buffe’s approach to Section 7 (b)(2) is her awareness of
the law and her readiness to risk its violation because of the unfairness she perceives
in the law. We find it disturbing that she first violated the law before making any
inquiry. She also justifies her position by referring to the practice of other government
lawyers known to her who, after separation from their judicial employment,
immediately engaged in the private practice of law and appeared as private counsels
before the RTC branches where they were previously employed. Again we find this a
cavalier attitude on Atty. Buffe’s part and, to our mind, only emphasizes her own
willful or intentional disregard of Section 7 (b)(2) of R.A. No. 6713.
By acting in a manner that R.A. No. 6713 brands as "unlawful," Atty. Buffe
contravened Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which
provides:
CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS
OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL
PROCESSES
xxx
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
As indicated by the use of the mandatory word "shall," this provision must be strictly
complied with. Atty. Buffe failed to do this, perhaps not with an evil intent, considering
the misgivings she had about Section 7 (b)(2)’s unfairness. Unlawful conduct under
Rule 1.01 of Canon 1, however, does not necessarily require the element of
criminality, although the Rule is broad enough to include it.18 Likewise, the presence
of evil intent on the part of the lawyer is not essential to bring his or her act or
omission within the terms of Rule 1.01, when it specifically prohibits lawyers from
engaging in unlawful conduct.19 Thus, we find Atty. Buffe liable under this quoted
Rule.
We also find that Atty. Buffe also failed to live up to her lawyer’s oath and thereby
violated Canon 7 of the Code of Professional Responsibility when she blatantly and
unlawfully practised law within the prohibited period by appearing before the RTC
Branch she had just left. Canon 7 states:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE
DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR. [Emphasis supplied]
By her open disregard of R.A. No. 6713, she thereby followed the footsteps of the
models she cited and wanted to replicate – the former court officials who immediately
waded into practice in the very same court they came from. She, like they, disgraced
the dignity of the legal profession by openly disobeying and disrespecting the
law.20 By her irresponsible conduct, she also eroded public confidence in the law and
in lawyers.21 Her offense is not in any way mitigated by her transparent attempt to
cover up her transgressions by writing the Court a letter-query, which she followed up
with unmeritorious petitions for declaratory relief, all of them dealing with the same
Section 7 (b)(2) issue, in the hope perhaps that at some point she would find a ruling
favorable to her cause. These are acts whose implications do not promote public
confidence in the integrity of the legal profession.22
Considering Atty. Buffe’s ready admission of violating Section 7(b)(2), the principle of
res ipsa loquitur finds application, making her administratively liable for violation of
Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility.23 In
several cases, the Court has disciplined lawyers without further inquiry or resort to
any formal investigation where the facts on record sufficiently provided the basis for
the determination of their administrative liability.
In Prudential Bank v. Castro,24 the Court disbarred a lawyer without need of any
further investigation after considering his actions based on records showing his
unethical misconduct; the misconduct not only cast dishonor on the image of both the
Bench and the Bar, but was also inimical to public interest and welfare. In this regard,
the Court took judicial notice of several cases handled by the errant lawyer and his
cohorts that revealed their modus operandi in circumventing the payment of the
proper judicial fees for the astronomical sums they claimed in their cases.25 The Court
held that those cases sufficiently provided the basis for the determination of
respondents' administrative liability, without need for further inquiry into the matter
under the principle of res ipsa loquitur.26
Also on the basis of this principle, we ruled in Richards v. Asoy,27 that no evidentiary
hearing is required before the respondent may be disciplined for professional
misconduct already established by the facts on record.
We applied the principle of res ipsa loquitur once more in In re: Wenceslao
Laureta28 where we punished a lawyer for grave professional misconduct solely
based on his answer to a show-cause order for contempt and without going into a
trial-type hearing. We ruled then that due process is satisfied as long as the
opportunity to be heard is given to the person to be disciplined.29
Likewise in Zaldivar v. Gonzales,30 the respondent was disciplined and punished for
contempt for his slurs regarding the Court’s alleged partiality, incompetence and lack
of integrity on the basis of his answer in a show-cause order for contempt. The Court
took note that the respondent did not deny making the negative imputations against
the Court through the media and even acknowledged the correctness of his degrading
statements. Through a per curiam decision, we justified imposing upon him the
penalty of suspension in the following tenor:
The power to punish for contempt of court does not exhaust the scope of disciplinary
authority of the Court over lawyers. 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 lawyer 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. Any act on his part which visibly tends to obstruct,
pervert, or impede and degrade the administration of justice constitutes both
professional misconduct calling for the exercise of disciplinary action against him, and
contumacious conduct warranting application of the contempt power.31
These cases clearly show that the absence of any formal charge against and/or
formal investigation of an errant lawyer do not preclude the Court from immediately
exercising its disciplining authority, as long as the errant lawyer or judge has been
given the opportunity to be heard. As we stated earlier, Atty. Buffe has been afforded
the opportunity to be heard on the present matter through her letter-query and
Manifestation filed before this Court.
A member of the bar may be penalized, even disbarred or suspended from his office
as an attorney, for violation of the lawyer’s oath and/or for breach of the ethics of the
legal profession as embodied in the Code of Professional Responsibility.32 The
appropriate penalty on an errant lawyer depends on the exercise of sound judicial
discretion based on the surrounding facts.33
In this case, we cannot discern any mitigating factors we can apply, save OCAT’s
observation that Atty Buffe’s letter-query may really reflect a misapprehension of the
parameters of the prohibition on the practice of the law profession under Section 7 (b)
(2) of R.A. No. 6713. Ignorance of the law, however, is no excuse, particularly on a
matter as sensitive as practice of the legal profession soon after one’s separation
from the service. If Atty. Buffe is correct in the examples she cited, it is time to ring the
bell and to blow the whistle signaling that we cannot allow this practice to
continue.1avvphi1
As we observed earlier,34 Atty. Buffe had no qualms about the simultaneous use of
various fora in expressing her misgivings about the perceived unfairness of Section 7
of R.A. 6713. She formally lodged a query with the Office of the Court Administrator,
and soon after filed her successive petitions for declaratory relief. Effectively, she
exposed these fora to the possibility of embarrassment and confusion through their
possibly differing views on the issue she posed. Although this is not strictly the forum-
shopping that the Rules of Court prohibit, what she has done is something that we
cannot help but consider with disfavor because of the potential damage and
embarrassment to the Judiciary that it could have spawned. This is a point against
Atty. Buffe that cancels out the leniency we might have exercised because of the
OCAT’s observation about her ignorance of and misgivings on the extent of the
prohibition after separation from the service.
Under the circumstances, we find that her actions merit a penalty of fine of
₱10,000.00, together with a stern warning to deter her from repeating her
transgression and committing other acts of professional misconduct.35 This penalty
reflects as well the Court’s sentiments on how seriously the retired, resigned or
separated officers and employees of the Judiciary should regard and observe the
prohibition against the practice of law with the office that they used to work with.
WHEREFORE, premises considered, we find Atty. Karen M. Silverio-Buffe GUILTY of
professional misconduct for violating Rule 1.01 of Canon 1 and Canon 7 of the Code
of Professional Responsibility. She is hereby FINED in the amount of Ten Thousand
Pesos (₱10,000.00), and STERNLY WARNED that a repetition of this violation and
the commission of other acts of professional misconduct shall be dealt with more
severely.
Let this Decision be noted in Atty. Buffe’s record as a member of the Bar.
SO ORDERED.