Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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 nonlitigation 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 decisionmaking 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 groupcontext 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' so vereignty. (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.
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.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Griño-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not
appear to me that there has been an adequate showing that the challenged determination by the Commission
on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections
should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended
by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court
in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY
the petition.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to
require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary
restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the
Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to
prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide
for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established
jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification,
that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional
requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core
issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of
the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law
for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of
constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that
he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this
Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or
application of knowledge as distinguished from mere possession of knowledge; it connotes
an active, habitual, repeated or customary action.1 To "practice" law, or any profession for that matter, means,
to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide,
cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot
be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business
executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a
governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner,
127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the public as a lawyer and
demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis
supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared,
enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the
public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644)
such as when one sends a circular announcing the establishment of a law office for the general practice
of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a
notary public, and files a manifestation with the Supreme Court informing it of his intention to practice
law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14
SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active and
continued practice of the legal profession and that his professional services are available to the public
for compensation, as a service of his livelihood or in consideration of his said services. (People v.
Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of
legal knowledge and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in Legal and
Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one
who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that
extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S.
462) If compensation is expected, all advice to clients and all action taken for them in matters
connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356359)
3. Application of law legal principle practice or procedure which calls for legal knowledge, training and
experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyerclient relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but
involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot
be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p.
30).3
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent
Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN
(10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that
if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at
least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly considered
activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion
or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of
law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As
observed by the Solicitor General in People vs. Villanueva:4
Essentially, the word private practice of law implies that one must have presented himself to be in
the activeand continued practice of the legal profession and that his professional services are available
to the public for a compensation, as a source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the
position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to
his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are
certain points on which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply
because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the appointee's credentials is made on
the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion
would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority
to choosebetween two claimants to the same office who both possessed the required qualifications. It was that
kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required
qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the
Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding
notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is
that what we would be examining is not the wisdom of his election but whether or not he was qualified to be
elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too
sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From
the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not
even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of
some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under
the definition as they deal with or give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another business and
he interprets and applies some law only as an incident of such business. That covers every company
organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not affected by some law or government
regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does
not even have to be part of a business concern to be considered a practitioner. He can be so deemed when,
on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and
application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of
livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service
Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or
out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision
goes on to say that "because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the
practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his
activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The
possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled
ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been
engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been
engaged in business and finance, in which areas he has distinguished himself, but as an executive and
economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in
his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose
principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in
Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together
with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved
that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law.
He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as
Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote
to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for public
office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law
(with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the
matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so
gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he
viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a constitutional
Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to
high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave
abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior
qualifications in terms of executive ability, proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His integrity and competence are not
questioned by the petitioner. What is before us is compliance with a specific requirement written into the
Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the
practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching
the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not
engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have
been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to
the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation
is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or
operating a farm with no active involvement in the law, whether in Government or private practice, except that
in one joyful moment in the distant past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice
of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental,
intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires
committed participation in something which is the result of one's decisive choice. It means that one is occupied
and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the tenyear period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on
Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears
that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar
examinations when he worked in his father's law firm. Even then his law practice must have been extremely
limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of
Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar
there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the
following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin American
Department; Division Chief, South Asia and Middle East, International Finance Corporation
3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco Securities Corporation,
Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated
companies
5. 1976-1978: Finaciera Manila — Chief Executive Officer
6. 1978-1986: Guevent Group of Companies — Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission — Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the
lawenough attention or a certain degree of commitment and participation as would support in all sincerity and
candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has
lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice
and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice
of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work,
blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as
having a familiar and customary well-defined meaning. Every resident of this country who has reached the age
of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not
necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer,
fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as
such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied
with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also services
rendered out of court, and it includes the giving of advice or the rendering of any services requiring the
use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of
which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago
Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock
Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice
of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to
the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any
person, firm or corporation when the giving of such advice or rendition of such service requires the use
of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344
Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to the
work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:
xxx
xxx
xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked whether or
not he ever prepared contracts for the parties in real-estate transactions where he was not the
procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had
prepared contracts for the parties during the twenty-one years of his business, he said: "I have no
Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he
did not recall making the statement to several parties that he had prepared contracts in a large number
of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember
saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to
the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't
believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts
and deeds for parties where he was not the broker, he finally answered: "I have done about everything
that is on the books as far as real estate is concerned."
xxx
xxx
xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right to do any
legal work in connection with real-estate transactions, especially in drawing of real-estate contracts,
deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices
over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d
773)
xxx
xxx
xxx
... An attorney, in the most general sense, is a person designated or employed by another to act in his
stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or
defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and nonprofessional agents are properly styled "attorney's in fact;" but the single word is much used as
meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney
at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a
court of law, legally qualified to prosecute and defend actions in such court on the retainer of clients.
"The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the
business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for
his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster,
means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to
practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to
exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E.
522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we
stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx
xxx
xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession
of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan.
864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as
customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such
services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of
the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the
public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644)
such as when one sends a circular announcing the establishment of a law office for the general practice
of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a
notary public, and files a manifestation with the Supreme Court informing it of his intention to practice
law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14
SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx
xxx
xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the
use of such legal knowledge is incidental and consists of isolated activities which do not fall under the
denomination of practice of law. Admission to the practice of law was not required for membership in the
Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal
activities which may have been assigned to Mr. Monsod while a member may be likened to isolated
transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing
business in the Philippines. As in the practice of law, doing business also should be active and continuous.
Isolated business transactions or occasional, incidental and casual transactions are not within the context of
doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA
288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may
possess the background, competence, integrity, and dedication, to qualify for such high offices as President,
Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification
of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has
ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less
than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming
the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not
appear to me that there has been an adequate showing that the challenged determination by the Commission
on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections
should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended
by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court
in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY
the petition.
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to
require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary
restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the
Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to
prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide
for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established
jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification,
that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional
requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core
issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of
the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law
for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of
constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that
he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this
Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or
application of knowledge as distinguished from mere possession of knowledge; it connotes
an active, habitual, repeated or customary action.1 To "practice" law, or any profession for that matter, means,
to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide,
cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot
be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business
executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a
governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner,
127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the public as a lawyer and
demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis
supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared,
enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the
public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644)
such as when one sends a circular announcing the establishment of a law office for the general practice
of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a
notary public, and files a manifestation with the Supreme Court informing it of his intention to practice
law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14
SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active and
continued practice of the legal profession and that his professional services are available to the public
for compensation, as a service of his livelihood or in consideration of his said services. (People v.
Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of
legal knowledge and skill is within the term "practice of law" (Ernani Paño, Bar Reviewer in Legal and
Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one
who renders an opinion as to the proper interpretation of a statute, and receives pay for it, is to that
extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S.
462) If compensation is expected, all advice to clients and all action taken for them in matters
connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356359)
3. Application of law legal principle practice or procedure which calls for legal knowledge, training and
experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyerclient relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but
involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot
be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p.
30).3
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent
Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN
(10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that
if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at
least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly considered
activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion
or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of
law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As
observed by the Solicitor General in People vs. Villanueva:4
Essentially, the word private practice of law implies that one must have presented himself to be in
the activeand continued practice of the legal profession and that his professional services are available
to the public for a compensation, as a source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the
position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to
his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are
certain points on which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply
because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the appointee's credentials is made on
the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion
would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority
to choosebetween two claimants to the same office who both possessed the required qualifications. It was that
kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required
qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the
Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding
notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is
that what we would be examining is not the wisdom of his election but whether or not he was qualified to be
elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too
sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From
the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not
even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of
some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under
the definition as they deal with or give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another business and
he interprets and applies some law only as an incident of such business. That covers every company
organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not affected by some law or government
regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does
not even have to be part of a business concern to be considered a practitioner. He can be so deemed when,
on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and
application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of
livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service
Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . . in
or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision
goes on to say that "because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the
practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his
activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The
possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled
ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been
engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been
engaged in business and finance, in which areas he has distinguished himself, but as an executive and
economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in
his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose
principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in
Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together
with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved
that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law.
He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as
Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote
to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for public
office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law
(with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the
matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so
gross as to amount to grave abuse of discretion; one of official leave with no instructions left behind on how he
viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a constitutional
Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to
high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave
abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior
qualifications in terms of executive ability, proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His integrity and competence are not
questioned by the petitioner. What is before us is compliance with a specific requirement written into the
Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the
practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching
the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not
engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have
been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to
the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation
is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or
operating a farm with no active involvement in the law, whether in Government or private practice, except that
in one joyful moment in the distant past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice
of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental,
intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires
committed participation in something which is the result of one's decisive choice. It means that one is occupied
and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the tenyear period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on
Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears
that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar
examinations when he worked in his father's law firm. Even then his law practice must have been extremely
limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of
Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar
there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the
following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin American
Department; Division Chief, South Asia and Middle East, International Finance Corporation
3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco Securities Corporation,
Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated
companies
5. 1976-1978: Finaciera Manila — Chief Executive Officer
6. 1978-1986: Guevent Group of Companies — Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission — Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the
lawenough attention or a certain degree of commitment and participation as would support in all sincerity and
candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has
lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice
and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice
of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work,
blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as
having a familiar and customary well-defined meaning. Every resident of this country who has reached the age
of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not
necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer,
fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as
such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied
with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also services
rendered out of court, and it includes the giving of advice or the rendering of any services requiring the
use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of
which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago
Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v. People's Stock
Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice
of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to
the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any
person, firm or corporation when the giving of such advice or rendition of such service requires the use
of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344
Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to the
work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:
xxx
xxx
xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked whether or
not he ever prepared contracts for the parties in real-estate transactions where he was not the
procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had
prepared contracts for the parties during the twenty-one years of his business, he said: "I have no
Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he
did not recall making the statement to several parties that he had prepared contracts in a large number
of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember
saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to
the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't
believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts
and deeds for parties where he was not the broker, he finally answered: "I have done about everything
that is on the books as far as real estate is concerned."
xxx
xxx
xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right to do any
legal work in connection with real-estate transactions, especially in drawing of real-estate contracts,
deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices
over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d
773)
xxx
xxx
xxx
... An attorney, in the most general sense, is a person designated or employed by another to act in his
stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or
defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and nonprofessional agents are properly styled "attorney's in fact;" but the single word is much used as
meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney
at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a
court of law, legally qualified to prosecute and defend actions in such court on the retainer of clients.
"The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the
business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for
his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster,
means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to
practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to
exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E.
522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we
stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx
xxx
xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession
of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan.
864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as
customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such
services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of
the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the
public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644)
such as when one sends a circular announcing the establishment of a law office for the general practice
of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a
notary public, and files a manifestation with the Supreme Court informing it of his intention to practice
law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14
SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the
use of such legal knowledge is incidental and consists of isolated activities which do not fall under the
denomination of practice of law. Admission to the practice of law was not required for membership in the
Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal
activities which may have been assigned to Mr. Monsod while a member may be likened to isolated
transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing
business in the Philippines. As in the practice of law, doing business also should be active and continuous.
Isolated business transactions or occasional, incidental and casual transactions are not within the context of
doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA
288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may
possess the background, competence, integrity, and dedication, to qualify for such high offices as President,
Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification
of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has
ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less
than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming
the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 89591-96 August 13, 1990
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HON. BONIFACIO SANZ MACEDA, Presiding Judge of Branch 12, Regional Trial Court of Antique,
and AVELINO T. JAVELLANA, respondents.
The Solicitor General for petitioner.
PADILLA, J.:
In the morning of 11 February 1986, the late ex-Governor of Antique, Evelio Javier, was gunned down in the
plaza of San Jose, Antique.
Immediately thereafter, the authorities conducted an investigation, and as a result thereof, a complaint against
John Paloy and Vicente Vegafria was filed with the Office of the Provincial Prosecutor.
During the preliminary investigation, private respondent Avelino T. Javellana appeared as counsel for John
Paloy and Vicente Vegafria, until Federico Carluto, Jr., executed an affidavit, 1 dated 16 June 1986, and Evelyn
Magare and Fritz Xavier their sworn statements, 2 dated 19 February 1986 and 7 March 1986, respectively,
implicating private respondent in the killing of the late Evelio Javier.
On 29 October 1986, the then Senior State Prosecutor Tirso D.C. Velasco, now RTC Judge of Quezon City,
filed with the RTC of Antique, six (6) separate informations, 3 all dated 13 October 1986, charging private
respondent Avelino T. Javellana together with John Paloy, Vicente Vegafria, Eduardo Iran alias "Boy
Muslim", alias "Muklo" Rudolfo Pacificador Alias "Ding", Arturo F. Pacificador and several John Does, with the
crime of murder, frustrated murder and for four (4) counts of attempted murder. 4
Meanwhile, on 23 September 1986 and 27 October 1986, Romeo Nagales and Jose Delumen executed their
respective sworn statements, 5 admitting their participation in the kiling of Evelio Javier, and implicating other
persons in the commission of the crime.
On the basis of their sworn statements, the prosecution, through Senior State Prosecutor Aurelio C. Trampe,
amended the aforesaid informations by including therein the following persons as accused, namely: Ramon
Hortillano alias "Ramie", Henry Salaber alias "Henry", Eleazar Edemne alias "Toto", Arleen
Limoso alias "Arleen", Romeo Nagales alias "Reming", Rolando C. Bernardino alias Lando Jose De
Lumen alias "Marlon", Jose Delumen alias "Winfield", Oscar
Tianzon alias "Oca", alias "Nono", alias Akong alias "Nonoy", alias "Tatang" and alias "Dolfo". 6
On motion of Senior State Prosecutor Aurelio C. Trampe, the said criminal cases were consolidated in Branch
12 of the RTC of Antique, presided over by respondent Judge.
Of the nineteen (19) accused, only six (6) had been apprehended and/or surrendered, namely: John Paloy,
Vicente Vegafria Rolando Bernardino, Jesus Garcia y Amorsolo alias "Nono Picoy" Jose
Delumen alias "Winfield" and Romeo Nagales alias "Reming". All the others were at large, including herein
private respondent Avelino Javellana. 7 Hence, trial proceeded only as against the said six (6) accused.
On 9 May 1989, the prosecution moved to discharge the accused Jose Delumen and Romeo Nagales,
claiming that their testimonies were absolutely necessary against accused Rolando Bernardino as well as the
other accused, including private respondent who was then at-large.
On 11 May 1989, the court a quo granted the motion to discharge Romeo Nagales but denied it as regards
Jose Delumen, the latter having admitted a prior conviction for the crime of robbery.
However, despite the discharge of Rome Nagales, the prosecution rested its case without presenting him his
state witness and reserved its right to present him as a witness against the other accused who were then atlarge.
On 12 May 1989, private respondent was arrested by the Constabulary Security Group (CSG) in Parañaque,
Metro Manila. On 15 May 1989, the Integrated Bar of the Philippines (IBP), Iloilo Chapter, through its
President, Atty. J.T. Barrera, enterred its appearance as counsel for private respondent with a motion that the
IBP, Iloilo Chapter be allowed to as assume custody of the private respondent as his jailer and/or in the
alternative, to confine him at the Military Stockade at Camp Delgado and/or at the Iloilo Provincial Jail. 8
When private respondent was brought before the trial court on 7 June 1989, Atty. J.T. Barrera manifested and
moved that his motion of 15 May 1989 be heard. During the hearing, Assistant Provincial Prosecutor John
Turalba opposed the motion. The issue was heatedly argued by the prosecution and the defense. Whereupon,
private respondent pleaded that he be allowed to approach the bench together with all the counsel, which
respondent Judge reluctantly granted. Private respondent informed the court that there exists a real and grave
danger to his life if he were to be confined in the Antique Provincial Jail. He then narrated an incident when he,
as the then counsel for John Paloy and Vicente Vegafria prior to his inclusion as one of the respondents, was
refused the right to visit and confer with his clients by a drunk jail guard at the Antique Provincial Jail; that the
said guard was toying with his armalite rifle while standing at the gate of the provincial jail and did not allow him
to enter; that said guard aimed and pointed his armalite rifle twice at him; and that because of his complaint,
the guard was suspended but has long been back on duty of the provincial jail. After hearing the narration,
Assistant Provincial Prosecutor John Turalba withdrew his objection. 9
Hence, on the same date, 7 June 1989, respondent Judge issued an order, 10 the pertinent part of which reads:
. . . , without jurisdiction on the part of Prosecutor John Turalba, accused Javellana is hereby
ordered confined at PC, Stockade, Bugante Point San Jose, Antique in the custody of the
PC/INP Provincial Commander who is directed to take charge of the custody of said accused
and to bring him back to court whenever required.
On 2 August 1989, the Provincial Commander, Col. Teodulo Abayata wrote respondent Judge:
I am in receipt of instruction from CPC to turn over Atty. Avelino Javellana to the Provincial Jail
effective immediately and for me to give feedback NLT today 2 August 1989.
Since his custody under the Provincial Commander was through the order of that Honorable
Court, request that another order be issued for me to be able to comply (sic) the instructions
from my superior officers. 11
On the same date, 2 August 1989, respondent Judge issued an order 12 granting the request of Col. Abayata,
and ordered the private respondent to be confined as a detention prisoner at the Binirayan Rehabilitation
Center, San Jose, Antique, subject to the conditions set forth therein.
Upon receipt of the order on the same day, private respondent filed an urgent ex-parte motion for
reconsideration, 13alleging that the Binirayan Rehabilitation Center, aside from being a little bit far and unsafe,
has conditions which may not work well for his health; that he underwent retrograde operation less than a year
ago and up to the present he is still taking medication for maintenance; that he has a history of heart treatment
and very often he takes maintenance pills and he is confronted by his unstable blood presure; that the location
of the rehabilitation center and the absence of facilities there may cause adverse effects on his health
condition; and praying that he be confined in the Provincial Jail of Iloilo where he can be nearer to better
hospital facilities.
When the aforesaid motion for private respondent was called for hearing in the afternoon of 2 August 1989,
respondent Judge required the presence of Assistant Provincial Prosecutor John Turalba. The latter appeared
and reiterated the earlier objection of the Senior State Prosecutor to the confinement of private respondent in
any place other than the Provincial Jail of Antique.
After the hearing, respondent Judge issued an order, 14 reconsidering and setting aside the earlier order, and
directed that —
. . . the accused, should in the meantime, be committed to the Angel Salazar Memorial Hospital
and subjected to a physical check-up at the expense of the accused Javellana. The head of the
said hospital is directed to submit his report soonest on the physical condition of accused
Javellana.
Meantime, while the check-up is being undertaken, the Station Commander of San Jose,
Antique is directed to take custody and provide adequate security for accused Javellana in order
to prevent his escape and to continue such custody until further orders from the court. . . .
On 3 August 1989, the head of the hospital issued a certification on the result of the physical check-up
conducted on private respondent, thus:
As per order of your Honor, dated August 2, 1989, Atty. Avelino T. Javellana was examined by
Dr. Felipe Rosendo Muzones and his ECG examination showed that everything is within normal
limits. However, Dr. Muzones contends that the same is not the only determinant factor as far
as the condition of the heart is concerned. Hence, he recommends that blood chemistry
examination is necessary. We are sad to inform your Honor that we do not have necessary
chemicals for this type of examination at
present. 15
In view of the aforesaid certification, the private respondent filed on the same day an Urgent Ex-Parte
Motion, 16praying that he be allowed further medical examination at the Iloilo Mission Hospital in Iloilo City
under at least two (2) police escorts. When the motion was called in open court in the afternoon, the private
respondent and the Assistant Provincial Prosecutor appeared, and both argued for and against the motion.
Thereafter, the respondent Judge issued an order, 17 the pertinent part of which reads, as follows:
It is the considered view of the Court that whether the blood chemistry examination is necessary
or not, the fact still remains that the examination conducted on the heart of movant is incomplete
and the court will not leave to chance the condition of the heart of movant who stands charged
of a serious crime in these cases. The Court believes that the best interest of justice may be
served should the accused be given time to be subjected to a more complete and exhaustive
physical examination particularly his heart condition, especially considering the information
given in open court by movant that his brother died at a tender age of thirty-three (33) of
coronary thrombosis and their family has a history of heart ailment and according to specialist
doctor, movant himself is prone to coronary thrombosis.
xxx xxx xxx
WHEREFORE, in view of all the foregoing, the Station Commander of San Jose, Antique is
hereby directed to assign two (2) guards to whom custody of movant Javellana is entrusted by
the Court to escort the movant Avelino Javellana to Iloilo Mission Hospital, Iloilo City for a
complete medical check-up, particularly on the heart of Mr. Javellana. . . .
However, before private respondent and his two (2) police escorts could leave for Iloilo City, P/Col. Magsinpoc,
Station Commander of San Jose, Antique, verbally conveyed to respondent Judge an "unforseen emergency"
necessitating the "response of all personnel of his Command" and requesting authority to recall the police
escorts. In view thereof, respondent Judge was constrained to issue on the same day, 3 August 1989, another
order, 18granting the request of the Station Commander, and directed the Provincial Probation Officer of
Antique to take custody of private respondent and to escort him to Iloilo City for medical check-up and bring
him back to court not later than 8:30 A.M. on Monday, 7 August 1989. Thus, the Provincial Probation Officer
brought the private respondent to the Iloilo Mission Hospital and left him there for a 3-day medical check-up,
and thereafter brought him back to court at 8:30 o'clock in the morning of 7 August 1989.
When the cases were called in the morning of 7 August 1989, Attys. Amelia K. del Rosario, Arturo Alinio and
J.T. Barrera entered their appearance as counsel for private respondent, and argued that the custody of
private respondent be entrusted to the IBP, Iloilo Chapter, headed by Atty. J.T. Barrera. However, Senior State
Prosecutor Aurelio C. Trampe moved that the resolution of the incident be held in abeyance until the hearing,
in the afternoon.
On the other hand, Atty. Jose A. Alegario entered his appearance as counsel for the then recently arrested
accused Oscar Tianzon, who manifested that his client was ready for arraignment. Accordingly, the said
accused was arraigned. He pleaded "not guilty."
Thereafter, the respondent Judge issued an order, 19 terminating the custody of the Provincial Probation
Officer, and, in the meantime, gave the custody of private respondent to his lawyers, as officers of the court,
ordering the confinement of accused Oscar Tianzon with the Antique Provincial Jail Warden and setting the
continuation of the hearing to 8 August 1989.
After the hearing in the afternoon, the respondent Judge issued another order, 20 deputizing private
respondent's lawyers as deputies of the court and ordered the confinement of private respondent at the San
Jose residence of Atty. Deogracias del Rosario, who happened to be the Clerk of Court of the RTC of Antique.
On 8 August 1989, respondent Judge issued an order, 21 terminating the deputization of private respondent's
lawyers and ordered them to turn over the custody of private respondent to the Clerk of Court and ExOficioProvincial Sheriff of the RTC of Antique, Atty. Deogracias del Rosario, directing the latter to hold and
detain private respondent in his residence at San Jose, Antique and not to allow him liberty to roam around but
to hold him as a detention prisoner thereat.
Meanwhile, on 21 June 1989, Atty. J.T. Barrera filed a motion for admission to bail on behalf of private
respondent. 22 On 4 July 1989, Senior State Prosecutor Aurelio Trampe filed his opposition 23 thereto, alleging
that private respondent was charged with the crime of murder, frustrated murder and attempted murders and
that the evidence of guilt is strong; hence, he is not entitled to bail as a matter of right.
On 26 June 1989, private respondent was arraigned, and thereafter, private respondent's petition for bail was
set for hearing on 7, 11 and 28 August 1989 to 1 September 1989, as agreed upon by the prosecution and the
defense. 24
On 7 August 1989, Senior State Prosecutor Aurelio C. Trampe filed a motion 25 dated 3 August 1989 to
discharge accused Oscar Tianzon to be utilized as a state witness, alleging that there is an absolute necessity
for his testimony against all the accused; that there is no other direct evidence available for the proper
prosecution of the offenses except the testimony of said accused, which can be substantially corroborated in
its material points by other evidence; that the accused Tianzon does not appear to be the most guilty among
the accused, as he acted merely as a lookout and did not actually participate in the assassination of the
deceased Evelio Javier, and that he has not been previously convicted of any offense involving moral
turpitude. The hearing of the motion was set on 9 August 1989 at 2:00 o'clock in the afternoon.
The scheduled hearing on the aforesaid motion of the prosecution was, however, cancelled and the hearing
thereof was reset to 23 August 1989.
At the hearing on 23 August 1989, the prosecution adduced its evidence in support of the motion; however,
respondent Judge deferred the resolution of the motion. Thereupon, the prosecution moved that the
presentation of its evidence in opposition to private respondent's petition for bail, which was set for hearing on
28 August 1989 and 1 September 1989, be likewise deferred on the ground that accused Oscar Tianzon is a
material witness against private respondent and that his testimony is necessary for the purpose of determining
private respondent's qualification for bail, i.e., whether the evidence of guilt is strong.
On 28 August 1989, petitioner filed the instant petition for CERTIORARI, to annul and set aside the orders
dated 3, 7 and 8 August 1989, claiming that said orders were issued with grave abuse of discretion and
PROHIBITION to enjoin the respondent Judge from hearing private respondent's petition for bail until he has
resolved the motion to discharge accused Oscar Tianzon, and praying that a writ of preliminary injunction
and/or temporary restraining order be issued.
As prayed for, the Court issued on 31 August 1989 a temporary restraining order, 26 ordering the respondent
Judge to cease and desist from continuing the hearing on respondent-accused Avelino Javellana's petition for
bail until after the respondent Judge has resolved the motion to discharge Oscar Tianzon as state witness.
When private respondent's petition for bail was heard on 28 August 1989, respondent Judge was apprised of
the filing of the petition before this Court; hence, the hearing was reset to 1 September 1989.
At the afternoon hearing on 1 September 1989, the prosecution furnished respondent Judge and the defense,
copies of the restraining order issued by this Court. The respondent Judge, however, advised the parties that
the motion to discharge accused Oscar Tianzon has already been resolved in the morning and that copies of
the resolution would be available at any time then. 27 Thereafter, respondent Judge released the
resolution, 28 dated 1 September 1989, denying the prosecution's motion to discharge accused Oscar Tianzon
to be utilized as a state witness. He ruled, among others, as follows:
The court searched the records for evidence to corroborate the material points in the aforesaid
testimony of Tianzon against Javellana but found none to corroborate his statement pointing to
Javellana as the gun supplier and the plotter. Neither has the prosecution presented evidence
during the hearing to determine Tianzon's qualification tending to corroborate the implication of
Javellana nor did the prosecution indicate to the court where such corroboration can be found
by the court.
On the contrary, the court notes a clash of the statements of Tianzon in the question and
answer No. 45 of his affidavit with the testimonies of the previous witnesses for the prosecution
because question and answer No. 45 specifies the names of the passengers of the two (2)
nissan jeeps but the same does not mention either accused John Paloy or Vicente Vegafria as
one of the passengers of the same jeeps while the testimonies of previous witnesses for the
prosecution proclaim that they (Paloy and Vegafria) were among the passengers of the such
jeeps who alighted therefrom at the Plaza where the late Governor Evelio Javier was killed.
Not only that. The court finds no absolute necessity to date of Tianzon's testimony because the
court earlier on May 11, 1989 dis charged accused Romeo Nagales on motion of the Prosecutor
to be utilized as a state witness. But, instead of utilizing Nagales as a state witness, as
promised by the Prosecutor, the prosecution did not present him up to this writing but
proceeded to formally offer its evidence and thereafter rested its case.
What is more, when the prosecution asked for the discharge of state witness Nagales, it
assured the court that:
That in the instant cases, there is an absolute necessity for the testimonies of
accused Jose Delumen and Romeo Nagales as against accused Arturo
Pacificador, Rodolfo Pacificador, Avelino Javellana, Eduardo Iran, Ramon
Hortillano, Henry Salaver, Arlene Limoso, Rolando Bernardino, Oscar Tianzon,
Eleazar Edemne alias "Nono", Alias Akong and Alias Tatang, Alias Dolfo, as
shown in their sworn statements, copies hereto attached as Annexes "A" and "B"
and form part hereof;
That there is no other direct evidence available for the proper prosecution of the
offenses committed by the accused named in the next preceding paragraph
except the testimonies of said Delumen and Nagales which can be substantially
corroborated in its material points by other evidence.
But neither did the prosecutor use state witness Nagales against accused Rolando Bernardino
nor did the prosecution use his testimony against Jose Delumen and Jesus Garcia.
Consequently, there being no evidence against accused Delumen and Garcia, on motion of
their respective counsel, the cases against these two (2) accused were dismissed.
These situation disturbs, let alone alarms, the court in the conduct of the prosecution in these
cases. The failure of the prosecution to adduce any evidence against Delumen and Garcia
appears to lend credence to the charge of accused Javellana that the prosecution in these
cases has adopted a "scandalous dual theory of the prosecution."
Upon receipt of the resolution, the prosecution through Senior State Prosecutor Aurelio C. Trampe,
immediately filed a motion to inhibit 29 the respondent Judge, dated 24 August 1989, on the ground of manifest
partiality to private respondent, and set it for hearing on 16 October 1989. Thereupon, the prosecution moved
to defer the presentation of its evidence in opposition to private respondent's petition for bail. Despite the
opposition of the prosecution, the respondent Judge reset the hearing on 14, 15 September 1989 to 4, 5 and 6
October 1989.
Afterwards, the prosecution filed a motion for reconsideration 30 of the order of 1 September 1989 which denied
the prosecution's motion to discharge accused Oscar Tianzon.
On 4 September 1989, the Senior State Prosecutor also filed a motion 31 to reset the hearings on 14, 15
September 1989 and 4, 5, 6 October 1989 on the petition for bail, on the grounds that the motion to inhibit
should first be resolved and also because of the pendency of the motion for reconsideration of the order of 1
September 1989.
At the hearing on 14 September 1989, only Assistant Provincial Prosecutor John Turalba appeared for the
prosecution. He manifested that he was appearing only to reiterate the Senior State Prosecutor's motion for
deferment of the scheduled hearings on private respondent's petition for bail. Private respondent opposed the
motion. The respondent Judge denied the motion, and directed the prosecution to present its evidence in
opposition to the private respondent's petition for bail. The Assistant Provincial Prosecutor moved for
reconsideration, claiming that his position is subservient to that of the Senior State Prosecutor who is the duly
designated principal prosecutor and as a matter of conviction, he cannot proceed with the trial as well as with
the subsequent trials which were covered by the motion of 4 September 1989, and that, moreover, to proceed
would render moot and academic the petition for certiorari before this Court. Respondent Judge denied the
motion for reconsideration, and, again, directed the prosecution to present its evidence. At this juncture, the
Assistant Provincial Prosecutor manifested that he was not participating in the proceedings and begged to be
allowed to leave the courtroom, which the respondent Judge refused.
Nevertheless, Assistant Provincial Prosecutor John Turalba walked out and, while walking towards the door,
respondent Judge ordered the Sheriff to arrest him. Thereafter, respondent Judge issued an order finding
Assistant Provincial Prosecutor John Turalba in contempt of court; declaring the prosecution to have waived its
right to present evidence in opposition to private respondent's petition for bail; and considering the said petition
for bail submitted for resolution. 32 The respondent Judge imposed upon the Assistant Provincial Prosecutor
the penalty of ten (10) days imprisonment. 33
Hence, the petitioner filed with this Court a Supplemental Petition to annul and set aside the orders of 1
September 1989 as well as the order of 14 September 1989; and to inhibit respondent Judge from further
taking cognizance of Criminal Cases Nos. 3350 to 3355; and praying that a writ of preliminary mandatory
injunction be issued directing respondent Judge to promptly order the release of Assistant Provincial
Prosecutor John Turalba from custody on the cognizance of the Provincial Prosecutor.
As prayed for, the Court issued on 22 September 1989 a writ of preliminary mandatory injunction. 34 However,
when the respondent Judge received it on 26 September 1989, Assistant Provincial Prosecutor John Turalba
had already been released on 25 September 1989 having served his sentence.
Petitioner contends that the respondent Judge committed a grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the following orders, to wit:
(a) the order of 3 August 1989, placing custody of private respondent with the Antique Provincial Probation
Officer;
(b) the order of 7 August 1989, transferring the custody of private respondent to his own lawyers;
(c) the Order of 8 August 1989, entrusting the custody of private respondent with the Clerk of Court and exoficioProvincial Sheriff, Deogracias del Rosario; and
(d) the Order of 1 September 1989, which denied the prosecution's motion to discharge Oscar Tianzon to be
utilized as a state witness.
Petitioner further contends that respondent Judge committed a grave abuse of discretion amounting to lack or
excess of jurisdiction when he insisted on continuously hearing private respondent's petition for bail and in
ordering the arrest and commitment of Assistant Provincial Prosecutor John Turalba in the Provincial Jail.
It has been repeatedly held that there is grave abuse of discretion justifying the issuance of a writ
of certiorari where there is a capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction; where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or
personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined, or
to act at all in contemplation of law. 35
In claiming that respondent Judge committed grave abuse of discretion in issuing the orders of 3 August 1989,
7 August 1989 and 8 August 1989, petitioner argues that there was no compelling reason for the respondent
Judge to order, with undue haste, the medical "check up" of private respondent at the Iloilo Mission Center
notwithstanding the absence of any police escort or other law enforcer to ensure that private respondent would
not take flight as he had previously done; that while all the other accused were confined in the Provincial Jail of
Antique, the respondent Judge merely "entrusted" the custody of private respondent to his lawyers, and then to
the Clerk of Court of the RTC of Antique, who is the son of one of private respondent's lawyers; and that
respondent Judge has not advanced a valid and legal rationale for the "accommodations" afforded private
respondent who, in law, occupies no better position and no preferential rights over those of his co-accused.
The respondent Judge, however, has, to our mind, sufficiently explained in the order of 7 August 1989 the
reasons behind the issuance of the aforesaid orders. He said:
The Court is aware of certain reasons why accused Javellana should not be placed in the
Provincial Jail. This was the subject of a discussion in open court before the Presiding Judge of
this court between the lawyers of Javellana and Javellana, himself and Asst. Provincial
Prosecutor John I-C. Turalba who, after hearing the particular reason given by Javellana
withdrew his opposition to the placing of Javellana other than in the Provincial Jail of Antique
and acceded that custody of Javellana be placed at the hands of the Provincial Commander of
Antique.
Recently, particulary on August 2, 1989 as well as on August 3, 1989, the court had difficulty in
securing the safety of accused Javellana. The court was left with no other choice but to entrust
his custody to the Provincial Probation Officer to escort him to Iloilo City for a medical check-up.
It is the perception of the court that there are movements going ground, by whom is unknown
yet to the court, to compel the incarceration of accused Javellana in the Provincial Jail. The
court abhors this situation and the court will not be intimidated by anyone. It is the perception of
this court that even its lawful orders have somehow been subverted. The court's perception of
the circumstances presently obtaining on the custody and place of detention of Javellana is a
hot agenda and of grave importance, particularly his safety and well being during detention in
order that the court can try him on the charges against him.
After serious deliberation, it is the considered view of the court that his detention be placed
somewhere else. The court hereby appoints Attys. Del Rosario, Barrera and Alinio as deputies
of the court and as such to take custody of accused Javellana meantime that the motion to fix
bail is going on and for them to bring the accused to court whenever his presence is needed.
As earlier noted, the court perceives a movement to compel detention of the accused in the
Provincial Jail of Antique. This disturbs the court. This even lends credence to the information
by Javellana that there is indeed danger to his life if he is placed in the Provincial Jail of Antique.
This perception of the court is premised on what appears to be a subversion of the order of the
court placing custody of accused Javellana with the Provincial Commander of Antique. The
court, however, allowed, on motion of the Provincial Commander, that Javellana be transferred
to the Binirayan Rehabilitation Center. But, on motion of Javellana for reasons of health, as the
same center is too far away and no adequate (sic) transport facilities at certain time of the day
and night are available to convey accused should an emergency occur, accused was ordered
confined at the Angel Salazar Memorial Hospital in San Jose, Antique for check-up. Because of
the incomplete results of the examination, order was issued for his complete check-up in a
hospital in Iloilo. The court ordered the Station Commander of San Jose, Antique to provide
police escorts and security to prevent escape of accused in conducting check-up. Before the
accused and his escorts could depart, on August 3, 1989 for Iloilo City, the INP Station
Commander of San Jose begged the Presiding Judge of this Court to allow him to recall the
security personnel he has assigned and ordered to conduct accused Javellana to Iloilo City. It
left the court with no choice and no enforcers. The court, however, had to be assured on the
physical condition of accused Javellana that he will be able to face trial against him.
Accordingly, the court ordered the Provincial Probation Officer, to whom the custody of accused
Javellana was entrusted, to escort the latter to Iloilo City for the medical check-up. The
Probation Officer earlier this morning manifested that there was opportunity for accused
Javellana to escape but despite such opportunity he came back to court today to face the trial
against him. This, to the mind of the court is to be considered in his favor.
The aforesaid movements directed to compel the court to place Javellana in the Provincial Jail,
is (sic) to the mind of the court, as (sic) indication that should (sic) be place there, something
may happen to him and this court will not allow that thing to happen. And as it is the considered
view of the court that justice maybe better served to deputize, as the lawyers of accused
Javellana have been deputized, as deputies of the court. As such they are now drawn from the
status of private individuals but are now the deputies of the court. In the matter of facilities,
accused Javellana is to be confined at the San Jose residence of Atty. Deogracias Del Rosario,
the son of Atty. Amelia del Rosario who happens to be the Clerk of Court of the Regional Trial
Court of Antique.
There may be truth to the Prosecutor's contention that there will be nothing to prevent the other
accused from following suit in asking that their custody likewise (sic) be transferred to their
respective lawyers.
But, such is only to request. The grant or denial thereof is a matter altogether different.
In the present incident it is the findings (sic) of the court that indeed the life of Javellana will be
imperilled if confined elsewhere other than the place above directed.
Considering the foregoing, the Court finds and so holds that respondent Judge did not commit grave abuse of
discretion, i.e., that he did not act "arbitrarily", "capriciously" or "despotically" amounting to lack or excess of
jurisdiction in issuing the questioned orders of 3, 7 and 8 August 1989.
Coming now to the 1 September 1989 order of respondent Judge, denying the prosecution's motion to
discharge accused Oscar Tianzon, the Court reiterates the rule that, for a writ of certiorari to issue, it must not
only be shown that the board, tribunal or officer acted without jurisdiction, or with grave abuse of discretion, but
also that there is no appeal or other plain, speedy and adequate remedy in the ordinary course of law. 36 Thus,
before filing a petition for certiorari in a higher court, the attention of the lower court should generally be first
called to its supposed error and its correction should be sought. The reason for the rule is that issues which the
lower courts are bound to decide should not summarily be taken from them and submitted to an appellate court
without first giving such lower courts the opportunity to dispose of the same with due deliberation. 37 In other
words, all available remedies in the lower court must first be exhausted before filing a petition for certiorari in
the higher courts.
In the case at bar, the petitioner had filed a motion for reconsideration of the order of 1 September 1989 which
is still pending resolution by respondent Judge. A petition for certiorari may not be granted where there is an
appeal or other adequate remedy, like a motion for reconsideration, which is still pending in the court
below, 38 as in the present case.
The Court, however, holds that respondent Judge committed grave abuse of discretion amounting to lack or
excess of jurisdiction when he insisted in continuously hearing private respondent's petition for bail and in
ordering the arrest and commitment of the Assistant Provincial Prosecutor.
It is well to recall that in the restraining order issued on 31 August 1989, this Court ordered the respondent
Judge to cease and desist from continuing the hearing on private respondent's petition for bail until after he
had resolved the motion for discharge of Oscar Tianzon as state witness. Although the aforesaid motion had
already been denied in the order of 1 September 1989, nevertheless, the prosecution had filed a motion to
reconsider the said order which is still pending resolution. Hence, the said motion has not yet been resolved
with finality. When respondent Judge, therefore, denied the prosecution's motion for deferment of the
scheduled hearings on private respondent's petition for bail and in proceeding to hear the said motion, by
ordering the prosecution to present its evidence — which precipitated the walk-out of the Assistant Provincial
Prosecutor and his consequent arrest and commitment to the Provincial Jail — he (respondent judge) was
acting in violation of the restraining order issued by this Court. Had the respondent Judge granted the
prosecution's motion for deferment, or at least, cancelled the hearings on 14 and 15 September 1989, and
instead, resolved the prosecution's motion for reconsideration of the order of 1 September 1989, this
unfortunate incident could have been avoided.
Although the matter of adjournment and postponement of trials is within the sound discretion of the court, such
discretion should always be predicated on the consideration that more than the mere convenience of the courts
or of the parties in the case, the ends of justice and fairness should be served thereby. 39 After all,
postponements and continuances are part and parcel of our procedural system of dispensing justice. 40
Besides, contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence, a
defiance of the court. 41 And, while courts are inherently empowered to punish for contempt to the end that they
may enforce their authority, preserve their integrity, maintain their dignity, and insure the effectiveness of the
administration of justice, 42 nevertheless, such power should be exercised on the preservative and not on the
vindictive principle, for the power to punish for contempt, being drastic and extraordinary in its nature, should
not be resorted to unless necessary in the interest of justicen 43
A perusal of the transcript of the hearing held on 14 September 1989 shows that Assistant Provincial
Prosecutor John Turalba had not made any statement that could be considered as "contumacious" or an
affront to the dignity of the court. And, while the act of Assistant Provincial Prosecutor Turalba of "walking out"
does not meet our approval — as he should have stayed after the respondent Judge had denied his motion for
permission to leave the courtroom — yet, the respondent Judge, in ordering the incarceration of Assistant
Provincial Prosecutor Turalba, acted beyond the permissible limits of his power to punish for contempt.
And now to the question on whether or not respondent Judge should be disqualified from further hearing Crim.
Cases Nos. 3350-3355, Section 1, Rule 137 of the Rules of Court provides:
SECTION 1. Disqualification of judges.— No judge or judicial officer shall sit in any case in
which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or
in which he is related to either party within the sixth degree of consanguinity or affinity, or to
counsel within the fourth degree, computed according to the rules of the civil law, or in which he
has been executor, administrator, guardian, trustee or counsel, or in which he has presided in
any inferior court when his ruling or decision is the subject of review, without the written consent
of all parties in interest, signed by them and entered upon the records.
A judge, may in the exercise of his sound discretion, disqualify himself from sitting in a case, for
just or valid reasons other than those mentioned above.
In the case at bar, the reason relied upon for the inhibition or disqualification of respondent Judge, i.e. manifest
partiality to private respondent, is not based on any of the grounds enumerated in the first paragraph of Section
1, Rule 137 which per se disqualifies a judge from sitting in a case, but on the second paragraph thereof. The
settled rule is that the judge is left to decide for himself whether he will desist, for just or valid reasons, from
sitting in a case. Respondent Judge has not as yet decided whether or not he will inhibit himself from further
hearing Criminal Cases Nos. 3350-3355 in the face of the prosecution's motion to disqualify or inhibit him. It
would be premature for the Court at this stage to rule on the matter.
WHEREFORE, the petition for certiorari is GRANTED insofar as the order of 14 September 1989 is concerned,
and the said order is hereby ANNULLED and SET ASIDE. Without costs.
SO ORDERED.
Melencio-Herrera (Chairman), Paras and Regalado, JJ., concur.
Sarmiento, J., is on leave.
FIRST DIVISION
[A.M. No. P-99-1287. January 26, 2001]
OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. ATTY. MISAEL M. LADAGA, Branch Clerk of
Court, Regional Trial Court, Branch 133, Makati City, respondent.
RESOLUTION
KAPUNAN, J.:
In a Letter, dated August 31, 1998, respondent Atty. Misael M. Ladaga, Branch Clerk of Court of the Regional Trial
Court of Makati, Branch 133, requested the Court Administrator, Justice Alfredo L. Benipayo, for authority to appear as pro
bono counsel of his cousin, Narcisa Naldoza Ladaga, in Criminal Case No. 84885, entitled People vs. Narcisa Naldoza
Ladaga for Falsification of Public Document pending before the Metropolitan Trial Court of Quezon City, Branch
40.[1] While respondents letter-request was pending action, Lisa Payoyo Andres, the private complainant in Criminal Case
No. 84885, sent a letter to the Court Administrator, dated September 2, 1998, requesting for a certification with regard to
respondents authority to appear as counsel for the accused in the said criminal case. [2] On September 7, 1998, the Office of
the Court Administrator referred the matter to respondent for comment.[3]
In his Comment,[4] dated September 14, 1998, respondent admitted that he had appeared in Criminal Case No. 84885
without prior authorization. He reasoned out that the factual circumstances surrounding the criminal case compelled him to
handle the defense of his cousin who did not have enough resources to hire the services of a counsel de parte; while, on the
other hand, private complainant was a member of a powerful family who was out to get even with his cousin. Furthermore,
he rationalized that his appearance in the criminal case did not prejudice his office nor the interest of the public since he did
not take advantage of his position. In any case, his appearances in court were covered by leave application approved by the
presiding judge.
On December 8, 1998, the Court issued a resolution denying respondents request for authorization to appear as counsel
and directing the Office of the Court Administrator to file formal charges against him for appearing in court without the
required authorization from the Court.[5] On January 25, 1999, the Court Administrator filed the instant administrative
complaint against respondent for violating Sec. 7(b)(2) of Republic Act No. 6713, otherwise known as the Code of Conduct
and Ethical Standards for Public Officials and Employees, which provides:
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 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;
In our Resolution, dated February 9, 1999, we required respondent to comment on the administrative complaint.
In his Comment, respondent explained that he and Ms. Ladaga are close blood cousins who belong to a powerless
family from the impoverished town of Bacauag, Surigao del Norte. From childhood until he finished his law degree, Ms.
Ladaga had always supported and guided him while he looked up to her as a mentor and an adviser. Because of their close
relationship, Ms. Ladaga sought respondents help and advice when she was charged in Criminal Case No. 84885 for
falsification by the private complainant, Lisa Payoyo Andres, whose only purpose in filing the said criminal case was to
seek vengeance on her cousin. He explained that his cousins discord with Ms. Andres started when the latters husband,
SPO4 Pedro Andres, left the conjugal home to cohabit with Ms. Ladaga. During the course of their illicit affair, SPO4
Andres and Ms. Ladaga begot three (3) children. The birth certificate of their eldest child is the subject of the falsification
charge against Ms. Ladaga. Respondent stated that since he is the only lawyer in their family, he felt it to be his duty to
accept Ms. Ladagas plea to be her counsel since she did not have enough funds to pay for the services of a
lawyer. Respondent also pointed out that in his seven (7) years of untainted government service, initially with the
Commission on Human Rights and now with the judiciary, he had performed his duties with honesty and integrity and that
it was only in this particular case that he had been administratively charged for extending a helping hand to a close relative
by giving a free legal assistance for humanitarian purpose. He never took advantage of his position as branch clerk of court
since the questioned appearances were made in the Metropolitan Trial Court of Quezon City and not in Makati where he is
holding office. He stressed that during the hearings of the criminal case, he was on leave as shown by his approved leave
applications attached to his comment.
In our Resolution, dated June 22, 1999, we noted respondents comment and referred the administrative matter to the
Executive Judge of the Regional Trial Court of Makati, Judge Josefina Guevarra-Salonga, for investigation, report and
recommendation.
In her Report, dated September 29, 1999, Judge Salonga made the following findings and recommendation:
There is no question that Atty. Misael Ladaga appeared as counsel for and in behalf of his cousin, Narcisa Naldoza
Ladaga, an accused in Criminal Case No. 84-885 for Falsification of Public Documents before the METC of Quezon
City. It is also denied that the appearance of said respondent in said case was without the previous permission of the
Court.
An examination of the records shows that during the occasions that the respondent appeared as such counsel before the
METC of Quezon City, he was on official leave of absence. Moreover, his Presiding Judge, Judge Napoleon Inoturan was
aware of the case he was handling. That the respondent appeared as pro bono counsel likewise cannot be denied. His
cousin-client Narcisa Ladaga herself positively declared that the respondent did not receive a single centavo from
her. Helpless as she was and respondent being the only lawyer in the family, he agreed to represent her out of his
compassion and high regard for her.
It may not be amiss to point out, this is the first time that respondent ever handled a case for a member of his family who
is like a big sister to him. He appeared for free and for the purpose of settling the case amicably. Furthermore, his
Presiding Judge was aware of his appearance as counsel for his cousin. On top of this, during all the years that he has been
in government service, he has maintained his integrity and independence.
RECOMMENDATION
In the light of the foregoing, it appearing that the respondent appeared as counsel for his cousin without first securing
permission from the court, and considering that this is his first time to do it coupled with the fact that said appearance was
not for a fee and was with the knowledge of his Presiding Judge, it is hereby respectfully recommended that he be
REPRIMANDED with a stern warning that any repetition of such act would be dealt with more severely.[6]
We agree with the recommendation of the investigating judge.
Respondent is charged under Sec. 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and
Employees which prohibits civil servants from engaging in the private practice of their profession. A similar prohibition is
found under Sec. 35, Rule 138 of the Revised Rules of Court which disallows certain attorneys from engaging in the private
practice of their profession. The said section reads:
SEC. 35. Certain attorneys not to practice.- No judge or other official or employee of the superior courts or of the Office
of the Solicitor General, shall engage in private practice as a member of the bar or give professional advise to clients.
However, it should be clarified that private practice of a profession, specifically the law profession in this case, which
is prohibited, does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature
habitually or customarily holding ones self to the public as a lawyer.
In the case of People vs. Villanueva,[7] we explained the meaning of the term private practice prohibited by the said
section, to wit:
We believe that the isolated appearance of City Attorney Fule did not constitute private practice, within the meaning and
contemplation of the Rules. Practice is more than an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan.
864, 42 LRA, N.S. 768) Practice of law to fall within the prohibition of statute has been interpreted as customarily or
habitually holding ones self out to the public, as a lawyer and demanding payment for such services (State vs. Bryan, 4
S.E. 522, 98 N.C. 644, 647). The appearance as counsel on one occasion, is not conclusive as determinative of
engagement in the private practice of law. The following observation of the Solicitor General is noteworthy:
Essentially, the word private practice of law implies that one must have presented himself to be in the active and
continued practice of the legal profession and that his professional services are available to the public for a
compensation, as a source of his livelihood or in consideration of his said services.
For one thing, it has never been refuted that City Attorney Fule had been given permission by his immediate superior, the
Secretary of Justice, to represent the complainant in the case at bar, who is a relative.[8]
Based on the foregoing, it is evident that the isolated instances when respondent appeared as pro bono counsel of his
cousin in Criminal Case No. 84885 does not constitute the private practice of the law profession contemplated by law.
Nonetheless, while respondents isolated court appearances did not amount to a private practice of law, he failed to
obtain a written permission therefor from the head of the Department, which is this Court as required by Section 12, Rule
XVIII of the Revised Civil Service Rules, thus:
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. [9]
Respondent entered his appearance and attended court proceedings on numerous occasions, i.e., May 4-15, 1998, June
18, 1998, July 13, 1998 and August 5, 1998, as borne out by his own admission. It is true that he filed leave applications
corresponding to the dates he appeared in court. However, he failed to obtain a prior permission from the head of the
Department. The presiding judge of the court to which respondent is assigned is not the head of the Department
contemplated by law.
WHEREFORE, in view of the foregoing, respondent Atty. Misael M. Ladaga is hereby REPRIMANDED with a stern
warning that any repetition of such act would be dealt with more severely.
SO ORDERED.
Bar Matter No. 1153
Quoted hereunder, for your information, is a resolution of the Court En Banc dated March 9, 2010
"B.M. No. 1153 (Re: Letter of Atty. Estelito P. Mendoza Proposing Reforms in the Bar Examinations Through
Amendments to Rule 138 of the Rules of Court). - The Court Resolved to APPROVE the proposed amendments
to Sections 5 and 6 of Rule 138, to wit:
SEC. 5.Additional Requirement for Other Applicants. — All applicants for admission other than those referred
to in the two preceding sections shall, before being admitted to the examination, satisfactorily show that they
have successfully completed all the prescribed courses for the degree of Bachelor of Laws or its equivalent
degree, in a law school or university officially recognized by the Philippine Government or by the proper
authority in the foreign jurisdiction where the degree has been granted.
No applicant who obtained the Bachelor of Laws degree in this jurisdiction shall be admitted to the bar
examination unless he or she has satisfactorily completed the following course in a law school or university
duly recognized by the government: civil law, commercial law, remedial law, criminal law, public and private
international law, political law, labor and social legislation, medical jurisprudence, taxation and legal ethics.
A Filipino citizen who graduated from a foreign law school shall be admitted to the bar examination only upon
submission to the Supreme Court of certifications showing: (a) completion of all courses leading to the degree
of Bachelor of Laws or its equivalent degree; (b) recognition or accreditation of the law school by the proper
authority; and (c) completion of all the fourth year subjects in the Bachelor of Laws academic program in a law
school duly recognized by the Philippine Government.
SEC. 6.Pre-Law. — An applicant for admission to the bar examination shall present a certificate issued by the
proper government agency that, before commencing the study of law, he or she had pursued and satisfactorily
completed in an authorized and recognized university or college, requiring for admission thereto the
completion of a four-year high school course, the course of study prescribed therein for a bachelor's degree in
arts or sciences.
A Filipino citizen who completed and obtained his or her Bachelor of Laws degree or its equivalent in a foreign
law school must present proof of having completed a separate bachelor's degree course.
The Clerk of Court, through the Office of the Bar Confidant, is hereby directed to CIRCULARIZE this resolution
among all law schools in the country."
THIRD DIVISION
[A.M. 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.
DECISION
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. Ordoez, 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 service, or be appropriately disciplined (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, layout, 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, 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.
N BANC
[A.C. No. 4838. July 29, 2003]
EMILIO GRANDE, complainant, vs. ATTY. EVANGELINE DE SILVA, respondent.
DECISION
YNARES-SANTIAGO, J.:
Complainant Emilio Grande was the private offended party in Criminal Cases Nos. 96-1346 to 96-1353, filed
with the Regional Trial Court of Marikina City, Branch 273, for Estafa and Violation of Batas Pambansa Bilang 22,
entitled People of the Philippines, Plaintiff versus Sergio Natividad, Accused. During the proceedings,
respondent Atty. Evangeline de Silva, counsel for the accused, tendered to complainant Check No. 0023638 in
the amount of P144,768.00, drawn against her account with the Philippine National Bank, as settlement of the
civil aspect of the case against her client. Complainant refused to accept the check, but respondent assured him
that the same will be paid upon its presentment to her drawee bank. She manifested that as a lawyer, she would
not issue a check which is not sufficiently funded. Thus, respondent was prevailed upon by complainant to accept
the check. Consequently, he desisted from participating as a complaining witness in the criminal case, which led
to the dismissal of the same and the release of the accused, Sergio Natividad.
When complainant deposited the check, the same was returned unpaid by the drawee bank for the reason:
Account Closed. On June 19, 1997, complainant wrote a letter to respondent demanding that she pay the face
value of the check.[1] However, his demand was ignored by respondent; hence, he instituted a criminal complaint
against her for Estafa and Violation of Batas Pambansa Bilang 22 with the Office of the City Prosecutor of
Marikina, which was docketed as I.S. No. 97-1036. On September 22, 1997, the Marikina City Prosecutor filed
the necessary information for violation of Batas Pambansa Bilang 22 against respondent Atty. Evangeline de
Silva.[2]
On November 10, 1997, complainant filed the instant administrative complaint for disbarment of respondent
for deceit and violation of the Lawyers Oath.[3]
In a Resolution dated February 2, 1998 sent to respondents given address at Carmelo Compound, Newton
Avenue, Mayamot, Antipolo City, she was required to comment on the complaint within ten (10) days from
notice.[4] However, it was returned unserved with the notation Moved.[5] The Assistant National Secretary of the
IBP submitted the latest address of respondent as 274 M.H. Del Pilar Street, Pasig City.[6]
On June 20, 2001, another resolution requiring respondent to comment on the administrative complaint filed
against her was served at the aforesaid address. This was again returned unserved with the notation:
Refused. Thus, the case was referred to the IBP Commission on Bar Discipline (IBP-CBD) for investigation,
report and recommendation.[7]
In a Report dated December 6, 2001, Investigating Commissioner Florimond C. Rous found respondent
guilty of deceit, gross misconduct and violation of the Lawyers Oath. Thus, he recommended that respondent
be suspended from the practice of law for two (2) years.
On October 19, 2002, the IBP Board of Governors passed Resolution No. XV-2002-554 which adopted the
recommendation of the Investigating Commissioner that respondent be suspended from the practice of law for
two (2) years.
We fully agree with the findings and recommendation of the IBP Board of Governors.
The record shows that respondent prevailed upon complainant to accept her personal check by way of
settlement for the civil liability of her client, Sergio Natividad, with the assurance that the check will have sufficient
funds when presented for payment. In doing so, she deceived complainant into withdrawing his complaint against
her client in exchange for a check which she drew against a closed account.
It is clear that the breach of trust committed by respondent in issuing a bouncing check amounted to deceit
and constituted a violation of her oath, for which she should be accordingly penalized.[8] Such an act constitutes
gross misconduct and the penalties for such malfeasance is prescribed by Rule 138, Section 27of the Rules of
Court, to wit:
SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefore. A member of the bar may be
disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross
misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or
for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience
appearing as attorney for a party without authority to do so.
The nature of the office of an attorney requires that a lawyer shall be a person of good moral character. Since
this qualification is a condition precedent to a license to enter upon the practice of law, the maintenance thereof
is equally essential during the continuance of the practice and the exercise of the privilege. Gross misconduct
which puts the lawyers moral character in serious doubt may render her unfit to continue in the practice of law.[9]
The loss of moral character of a lawyer for any reason whatsoever shall warrant her suspension or
disbarment,[10] because it is important that members of the legal brotherhood must conform to the highest
standards of morality.[11] Any wrongdoing which indicates moral unfitness for the profession, whether it be
professional or non-professional, justifies disciplinary action. Thus, a lawyer may be disciplined for evading
payment of a debt validly incurred. Such conduct is unbecoming and does not speak well of a member of the
bar, for a lawyers professional and personal conduct must at all times be kept beyond reproach and above
suspicion.[12]
Moreover, the attitude of respondent in deliberately refusing to accept the notices served on her betrays a
deplorably willful character or disposition which stains the nobility of the legal profession.[13] Her conduct not only
underscores her utter lack of respect for authority; it also brings to the fore a darker and more sinister character
flaw in her psyche which renders highly questionable her moral fitness to continue in the practice of law: a
defiance for law and order which is at the very core of her profession.
Such defiance is anathema to those who seek a career in the administration of justice because obedience to
the dictates of the law and justice is demanded of every lawyer. How else would respondent even endeavor to
serve justice and uphold the law when she disdains to follow even simple directives? Indeed, the first and
foremost command of the Code of Professional Responsibility could not be any clearer:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LEGAL PROCESSES.
Needless to state, respondents persistent refusal to comply with lawful orders directed at her with not even
an explanation for doing so is contumacious conduct which merits no compassion. The duty of a lawyer is to
uphold the integrity and dignity of the legal profession at all times. She can only do this by faithfully performing
her duties to society, to the bar, to the courts and to her clients.[14] We can not tolerate any misconduct that tends
to besmirch the fair name of an honorable profession.
WHEREFORE, in view of the foregoing, respondent ATTY. EVANGELINE DE SILVA is SUSPENDED from
the practice of law for a period of Two (2) Years, effective upon receipt hereof.Let copies of this Decision be
entered in her record as attorney and be furnished the Integrated Bar of the Philippines and all courts in the
country for their information and guidance.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
BAR MATTER No. 914 October 1, 1999
RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,
vs.
VICENTE D. CHING, applicant.
RESOLUTION
KAPUNAN, J.:
Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father validly elect
Philippine citizenship fourteen (14) years after he has reached the age of majority? This is the question sought
to be resolved in the present case involving the application for admission to the Philippine Bar of Vicente D.
Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen, and Prescila A. Dulay, a
Filipino, was born in Francia West, Tubao, La Union on 11 April 1964. Since his birth, Ching has resided in the
Philippines.
On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the St. Louis University in
Baguio City, filed an application to take the 1998 Bar Examinations. In a Resolution of this Court, dated 1
September 1998, he was allowed to take the Bar Examinations, subject to the condition that he must submit to
the Court proof of his Philippine citizenship.
In compliance with the above resolution, Ching submitted on 18 November 1998, the following documents:
1. Certification, dated 9 June 1986, issued by the Board of Accountancy of the Professional
Regulations Commission showing that Ching is a certified public accountant;
2. Voter Certification, dated 14 June 1997, issued by Elizabeth B. Cerezo, Election Officer of the
Commission on Elections (COMELEC) in Tubao La Union showing that Ching is a registered
voter of the said place; and
3. Certification, dated 12 October 1998, also issued by Elizabeth B. Cerezo, showing that Ching
was elected as a member of the Sangguniang Bayan of Tubao, La Union during the 12 May
1992 synchronized elections.
On 5 April 1999, the results of the 1998 Bar Examinations were released and Ching was one of the successful
Bar examinees. The oath-taking of the successful Bar examinees was scheduled on 5 May 1999. However,
because of the questionable status of Ching's citizenship, he was not allowed to take his oath. Pursuant to the
resolution of this Court, dated 20 April 1999, he was required to submit further proof of his citizenship. In the
same resolution, the Office of the Solicitor General (OSG) was required to file a comment on Ching's petition
for admission to the bar and on the documents evidencing his Philippine citizenship.
The OSG filed its comment on 8 July 1999, stating that Ching, being the "legitimate child of a Chinese father
and a Filipino mother born under the 1935 Constitution was a Chinese citizen and continued to be so, unless
upon reaching the age of majority he elected Philippine citizenship" 1 in strict compliance with the provisions of
Commonwealth Act No. 625 entitled "An Act Providing for the Manner in which the Option to Elect Philippine
Citizenship shall be Declared by a Person Whose Mother is a Filipino Citizen." The OSG adds that "(w)hat he
acquired at best was only an inchoate Philippine citizenship which he could perfect by election upon reaching
the age of majority." 2 In this regard, the OSG clarifies that "two (2) conditions must concur in order that the
election of Philippine citizenship may be effective, namely: (a) the mother of the person making the election
must be a citizen of the Philippines; and (b) said election must be made upon reaching the age of
majority." 3 The OSG then explains the meaning of the phrase "upon reaching the age of majority:"
The clause "upon reaching the age of majority" has been construed to mean a reasonable time
after reaching the age of majority which had been interpreted by the Secretary of Justice to be
three (3) years (VELAYO, supra at p. 51 citing Op., Sec. of Justice No. 70, s. 1940, Feb. 27,
1940). Said period may be extended under certain circumstances, as when a (sic) person
concerned has always considered himself a Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955;
3, 12, 46, 86 and 97, s. 1953). But in Cuenco, it was held that an election done after over seven
(7) years was not made within a reasonable time.
In conclusion, the OSG points out that Ching has not formally elected Philippine citizenship and, if ever he
does, it would already be beyond the "reasonable time" allowed by present jurisprudence. However, due to the
peculiar circumstances surrounding Ching's case, the OSG recommends the relaxation of the standing rule on
the construction of the phrase "reasonable period" and the allowance of Ching to elect Philippine citizenship in
accordance with C.A. No. 625 prior to taking his oath as a member of the Philippine Bar.
On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of Election of Philippine
Citizenship and his Oath of Allegiance, both dated 15 July 1999. In his Manifestation, Ching states:
1. I have always considered myself as a Filipino;
2. I was registered as a Filipino and consistently declared myself as one in my school records
and other official documents;
3. I am practicing a profession (Certified Public Accountant) reserved for Filipino citizens;
4. I participated in electoral process[es] since the time I was eligible to vote;
5. I had served the people of Tubao, La Union as a member of the Sangguniang Bayan from
1992 to 1995;
6. I elected Philippine citizenship on July 15, 1999 in accordance with Commonwealth Act No.
625;
7. My election was expressed in a statement signed and sworn to by me before a notary public;
8. I accompanied my election of Philippine citizenship with the oath of allegiance to the
Constitution and the Government of the Philippines;
9. I filed my election of Philippine citizenship and my oath of allegiance to (sic) the Civil
Registrar of Tubao La Union, and
10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.
Since Ching has already elected Philippine citizenship on 15 July 1999, the question raised is whether he has
elected Philippine citizenship within a "reasonable time." In the affirmative, whether his citizenship by election
retroacted to the time he took the bar examination.
When Ching was born in 1964, the governing charter was the 1935 Constitution. Under Article IV, Section 1(3)
of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino mother and an alien father
followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine
citizenship. 4 This right to elect Philippine citizenship was recognized in the 1973 Constitution when it provided
that "(t)hose who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred
and thirty-five" are citizens of the Philippines. 5 Likewise, this recognition by the 1973 Constitution was carried
over to the 1987 Constitution which states that "(t)hose born before January 17, 1973 of Filipino mothers, who
elect Philippine citizenship upon reaching the age of majority" are Philippine citizens. 6 It should be noted,
however, that the 1973 and 1987 Constitutional provisions on the election of Philippine citizenship should not
be understood as having a curative effect on any irregularity in the acquisition of citizenship for those covered
by the 1935 Constitution. 7 If the citizenship of a person was subject to challenge under the old charter, it
remains subject to challenge under the new charter even if the judicial challenge had not been commenced
before the effectivity of the new Constitution. 8
C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution, prescribes the
procedure that should be followed in order to make a valid election of Philippine citizenship. Under Section 1
thereof, legitimate children born of Filipino mothers may elect Philippine citizenship by expressing such
intention "in a statement to be signed and sworn to by the party concerned before any officer authorized to
administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid
statement with the oath of allegiance to the Constitution and the Government of the Philippines."
However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the election of
Philippine citizenship should be made. The 1935 Charter only provides that the election should be made "upon
reaching the age of majority." The age of majority then commenced upon reaching twenty-one (21) years. 9 In
the opinions of the Secretary of Justice on cases involving the validity of election of Philippine citizenship, this
dilemma was resolved by basing the time period on the decisions of this Court prior to the effectivity of the
1935 Constitution. In these decisions, the proper period for electing Philippine citizenship was, in turn, based
on the pronouncements of the Department of State of the United States Government to the effect that the
election should be made within a "reasonable time" after attaining the age of majority. 10 The phrase
"reasonable time" has been interpreted to mean that the election should be made within three (3) years from
reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3) year period is not an
inflexible rule. We said:
It is true that this clause has been construed to mean a reasonable period after reaching the
age of majority, and that the Secretary of Justice has ruled that three (3) years is the reasonable
time to elect Philippine citizenship under the constitutional provision adverted to above, which
period may be extended under certain circumstances, as when the person concerned has
always considered himself a Filipino. 13
However, we cautioned in Cuenco that the extension of the option to elect Philippine citizenship is not
indefinite:
Regardless of the foregoing, petitioner was born on February 16, 1923. He became of age on
February 16, 1944. His election of citizenship was made on May 15, 1951, when he was over
twenty-eight (28) years of age, or over seven (7) years after he had reached the age of majority.
It is clear that said election has not been made "upon reaching the age of majority." 14
In the present case, Ching, having been born on 11 April 1964, was already thirty-five (35) years old when he
complied with the requirements of C.A. No. 625 on 15 June 1999, or over fourteen (14) years after he had
reached the age of majority. Based on the interpretation of the phrase "upon reaching the age of majority,"
Ching's election was clearly beyond, by any reasonable yardstick, the allowable period within which to exercise
the privilege. It should be stated, in this connection, that the special circumstances invoked by Ching, i.e., his
continuous and uninterrupted stay in the Philippines and his being a certified public accountant, a registered
voter and a former elected public official, cannot vest in him Philippine citizenship as the law specifically lays
down the requirements for acquisition of Philippine citizenship by election.
Definitely, the so-called special circumstances cannot constitute what Ching erroneously labels as informal
election of citizenship. Ching cannot find a refuge in the case of In re: Florencio Mallare, 15 the pertinent portion
of which reads:
And even assuming arguendo that Ana Mallare were (sic) legally married to an alien, Esteban's
exercise of the right of suffrage when he came of age, constitutes a positive act of election of
Philippine citizenship. It has been established that Esteban Mallare was a registered voter as of
April 14, 1928, and that as early as 1925 (when he was about 22 years old), Esteban was
already participating in the elections and campaigning for certain candidate[s]. These acts are
sufficient to show his preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining therein are very different from
those in the present case, thus, negating its applicability. First, Esteban Mallare was born before the effectivity
of the 1935 Constitution and the enactment of C.A. No. 625. Hence, the requirements and procedures
prescribed under the 1935 Constitution and C.A. No. 625 for electing Philippine citizenship would not be
applicable to him. Second, the ruling in Mallare was an obiter since, as correctly pointed out by the OSG, it was
not necessary for Esteban Mallare to elect Philippine citizenship because he was already a Filipino, he being a
natural child of a Filipino mother. In this regard, the Court stated:
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no
other act would be necessary to confer on him all the rights and privileges attached to Philippine
citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine
Islands, 42 Phil. 543, Serra vs. Republic, L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be
taken on the erroneous belief that he is a non-filipino divest him of the citizenship privileges to
which he is rightfully entitled. 17
The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral Tribunal of the House of
Representatives, 18 where we held:
We have jurisprudence that defines "election" as both a formal and an informal process.
In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of
the right of suffrage and the participation in election exercises constitute a positive act of
election of Philippine citizenship. In the exact pronouncement of the Court, we held:
Esteban's exercise of the right of suffrage when he came of age constitutes a
positive act of Philippine citizenship. (p. 52: emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has established his life here in
the Philippines.
For those in the peculiar situation of the respondent who cannot be excepted to have elected
Philippine citizenship as they were already citizens, we apply the In Re Mallare rule.
xxx xxx xxx
The filing of sworn statement or formal declaration is a requirement for those who still have to
elect citizenship. For those already Filipinos when the time to elect came up, there are acts of
deliberate choice which cannot be less binding. Entering a profession open only to Filipinos,
serving in public office where citizenship is a qualification, voting during election time, running
for public office, and other categorical acts of similar nature are themselves formal
manifestations for these persons.
An election of Philippine citizenship presupposes that the person electing is an alien. Or his
status is doubtful because he is a national of two countries. There is no doubt in this case about
Mr. Ong's being a Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of the private respondent would
not only have been superfluous but it would also have resulted in an absurdity. How can a
Filipino citizen elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the plight of Ching. However, even if we consider the special
circumstances in the life of Ching like his having lived in the Philippines all his life and his consistent belief that
he is a Filipino, controlling statutes and jurisprudence constrain us to disagree with the recommendation of the
OSG. Consequently, we hold that Ching failed to validly elect Philippine citizenship. The span of fourteen (14)
years that lapsed from the time he reached the age of majority until he finally expressed his intention to elect
Philippine citizenship is clearly way beyond the contemplation of the requirement of electing "upon reaching
the age of majority." Moreover, Ching has offered no reason why he delayed his election of Philippine
citizenship. The prescribed procedure in electing Philippine citizenship is certainly not a tedious and
painstaking process. All that is required of the elector is to execute an affidavit of election of Philippine
citizenship and, thereafter, file the same with the nearest civil registry. Ching's unreasonable and unexplained
delay in making his election cannot be simply glossed over.
Philippine citizenship can never be treated like a commodity that can be claimed when needed and suppressed
when convenient. 20 One who is privileged to elect Philippine citizenship has only an inchoate right to such
citizenship. As such, he should avail of the right with fervor, enthusiasm and promptitude. Sadly, in this case,
Ching slept on his opportunity to elect Philippine citizenship and, as a result. this golden privilege slipped away
from his grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's application for admission to
the Philippine Bar.
SO ORDERED.
EN BANC
[B.M. No. 1154. June 8, 2004]
IN THE MATTER OF THE DISQUALIFICATION OF BAR EXAMINEE HARON S. MELING IN THE 2002 BAR
EXAMINATIONS AND FOR DISCIPLINARY ACTION AS MEMBER OF THE PHILIPPINE SHARIA
BAR,
ATTY. FROILAN R. MELENDREZ, petitioner,
RESOLUTION
TINGA, J.:
The Court is here confronted with a Petition that seeks twin reliefs, one of which is ripe while the other has
been rendered moot by a supervening event.
The antecedents follow.
On October 14, 2002, Atty. Froilan R. Melendrez (Melendrez) filed with the Office of the Bar Confidant (OBC)
a Petition[1] to disqualify Haron S. Meling (Meling) from taking the 2002 Bar Examinations and to impose on him
the appropriate disciplinary penalty as a member of the Philippine Sharia Bar.
In the Petition, Melendrez alleges that Meling did not disclose in his Petition to take the 2002 Bar
Examinations that he has three (3) pending criminal cases before the Municipal Trial Court in Cities
(MTCC), Cotabato City, namely: Criminal Cases Noa. 15685 and 15686, both for Grave Oral Defamation, and
Criminal Case No. 15687 for Less Serious Physical Injuries.
The above-mentioned cases arose from an incident which occurred on May 21, 2001, when Meling allegedly
uttered defamatory words against Melendrez and his wife in front of media practitioners and other people. Meling
also purportedly attacked and hit the face of Melendrez wife causing the injuries to the latter.
Furthermore, Melendrez alleges that Meling has been using the title Attorney in his communications, as
Secretary to the Mayor of Cotabato City, despite the fact that he is not a member of the Bar. Attached to
the Petition is an indorsement letter which shows that Meling used the appellation and appears on its face to
have been received by the Sangguniang Panglungsod of Cotabato City on November 27, 2001.
Pursuant to this Courts Resolution[2] dated December 3, 2002, Meling filed his Answer with the OBC.
In his Answer,[3] Meling explains that he did not disclose the criminal cases filed against him by Melendrez
because retired Judge Corocoy Moson, their former professor, advised him to settle his misunderstanding with
Melendrez. Believing in good faith that the case would be settled because the said Judge has moral ascendancy
over them, he being their former professor in the College of Law, Meling considered the three cases that actually
arose from a single incident and involving the same parties as closed and terminated. Moreover, Meling denies
the charges and adds that the acts complained of do not involve moral turpitude.
As regards the use of the title Attorney, Meling admits that some of his communications really contained the
word Attorney as they were, according to him, typed by the office clerk.
In its Report and Recommendation[4] dated December 8, 2003, the OBC disposed of the charge of nondisclosure against Meling in this wise:
The reasons of Meling in not disclosing the criminal cases filed against him in his petition to take the Bar Examinations
are ludicrous. He should have known that only the court of competent jurisdiction can dismiss cases, not a retired judge
nor a law professor. In fact, the cases filed against Meling are still pending. Furthermore, granting arguendo that these
cases were already dismissed, he is still required to disclose the same for the Court to ascertain his good moral
character. Petitions to take the Bar Examinations are made under oath, and should not be taken lightly by an applicant.
The merit of the cases against Meling is not material in this case. What matters is his act of concealing them which
constitutes dishonesty.
In Bar Matter 1209, the Court stated, thus:
It has been held that good moral character is what a person really is, as distinguished from good reputation or from the
opinion generally entertained of him, the estimate in which he is held by the public in the place where he is known. Moral
character is not a subjective term but one which corresponds to objective reality. The standard of personal and
professional integrity is not satisfied by such conduct as it merely enables a person to escape the penalty of criminal
law. Good moral character includes at least common honesty.
The non-disclosure of Meling of the criminal cases filed against him makes him also answerable under Rule 7.01 of the
Code of Professional Responsibility which states that a lawyer shall be answerable for knowingly making a false
statement or suppressing a material fact in connection with his application for admission to the bar.[5]
As regards Melings use of the title Attorney, the OBC had this to say:
Anent the issue of the use of the appellation Attorney in his letters, the explanation of Meling is not acceptable. Aware
that he is not a member of the Bar, there was no valid reason why he signed as attorney whoever may have typed the
letters.
Although there is no showing that Meling is engaged in the practice of law, the fact is, he is signing his communications
as Atty. Haron S. Meling knowing fully well that he is not entitled thereto. As held by the Court in Bar Matter 1209, the
unauthorized use of the appellation attorney may render a person liable for indirect contempt of court.[6]
Consequently, the OBC recommended that Meling not be allowed to take the Lawyers Oath and sign the
Roll of Attorneys in the event that he passes the Bar Examinations. Further, it recommended that Melings
membership in the Sharia Bar be suspended until further orders from the Court.[7]
We fully concur with the findings and recommendation of the OBC. Meling, however, did not pass the 2003
Bar Examinations. This renders the Petition, insofar as it seeks to prevent Meling from taking the Lawyers Oath
and signing the Roll of Attorneys, moot and academic.
On the other hand, the prayer in the same Petition for the Court to impose the appropriate sanctions upon
him as a member of the Sharia Bar is ripe for resolution and has to be acted upon.
Practice of law, whether under the regular or the Sharia Court, is not a matter of right but merely a privilege
bestowed upon individuals who are not only learned in the law but who are also known to possess good moral
character.[8] The requirement of good moral character is not only a condition precedent to admission to the
practice of law, its continued possession is also essential for remaining in the practice of law. [9]
The standard form issued in connection with the application to take the 2002 Bar Examinations requires the
applicant to aver that he or she has not been charged with any act or omission punishable by law, rule or
regulation before a fiscal, judge, officer or administrative body, or indicted for, or accused or convicted by any
court or tribunal of, any offense or crime involving moral turpitude; nor is there any pending case or charge
against him/her. Despite the declaration required by the form, Meling did not reveal that he has three pending
criminal cases. His deliberate silence constitutes concealment, done under oath at that.
The disclosure requirement is imposed by the Court to determine whether there is satisfactory evidence of
good moral character of the applicant.[10] The nature of whatever cases are pending against the applicant would
aid the Court in determining whether he is endowed with the moral fitness demanded of a lawyer. By concealing
the existence of such cases, the applicant then flunks the test of fitness even if the cases are ultimately proven
to be unwarranted or insufficient to impugn or affect the good moral character of the applicant.
Melings concealment of the fact that there are three (3) pending criminal cases against him speaks of his
lack of the requisite good moral character and results in the forfeiture of the privilege bestowed upon him as a
member of the Sharia Bar.
Moreover, his use of the appellation Attorney, knowing fully well that he is not entitled to its use, cannot go
unchecked. In Alawi v. Alauya,[11] the Court had the occasion to discuss the impropriety of the use of the title
Attorney by members of the Sharia Bar who are not likewise members of the Philippine Bar. The respondent
therein, an executive clerk of court of the 4thJudicial Sharia District in Marawi City, used the title Attorney in
several correspondence in connection with the rescission of a contract entered into by him in his private
capacity. The Courtdeclared that:
persons who pass the Sharia Bar are not full-fledged members of the Philippine Bar, hence, may only practice law before
Sharia courts. While one who has been admitted to the Sharia Bar, and one who has been admitted to the Philippine Bar,
may both be considered counselors, in the sense that they give counsel or advice in a professional capacity, only the latter
is an attorney. The title 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.[12]
The judiciary has no place for dishonest officers of the court, such as Meling in this case. The solemn task
of administering justice demands that those who are privileged to be part of service therein, from the highest
official to the lowliest employee, must not only be competent and dedicated, but likewise live and practice the
virtues of honesty and integrity. Anything short of this standard would diminish the public's faith in the Judiciary
and constitutes infidelity to the constitutional tenet that a public office is a public trust.
In Leda v. Tabang, supra, the respondent concealed the fact of his marriage in his application to take the
Bar examinations and made conflicting submissions before the Court. As a result, we found the respondent
grossly unfit and unworthy to continue in the practice of law and suspended him therefrom until further orders
from the Court.
WHEREFORE, the Petition is GRANTED insofar as it seeks the imposition of appropriate sanctions upon
Haron S. Meling as a member of the Philippine Sharia Bar. Accordingly, the membership of Haron S. Meling in
the Philippine Sharia Bar is hereby SUSPENDED until further orders from the Court, the suspension to take
effect immediately. Insofar as the Petitionseeks to prevent Haron S. Meling from taking the Lawyers Oath and
signing the Roll of Attorneys as a member of the Philippine Bar, the same is DISMISSED for having become
moot and academic.
Copies of this Decision shall be circulated to all the Sharia Courts in the country for their information and
guidance.
SO ORDERED.
EN BANC
[A.C. No. 4148. July 30, 1998]
REMEDIOS RAMIREZ TAPUCAR, complainant, vs. ATTY. LAURO L. TAPUCAR, respondent.
DECISION
PER CURIAM:
In a letter-complaint dated November 22, 1993, complainant Remedios Ramirez Tapucar sought the
disbarment of her husband, Atty. Lauro L. Tapucar, on the ground of continuing grossly immoral conduct for
cohabiting with a certain Elena (Helen) Pea under scandalous circumstances.[1]
Prior to this complaint, respondent was already administratively charged four times for conduct unbecoming
an officer of the court. in Administrative Matter No. 1740, resolved on April 11, 1980, respondent, at that time the
Judge of Butuan City, was meted the penalty of six months suspension without pay,[2] while in Administrative
Matter Nos. 1720, 1911 and 2300-CFI, which were consolidated,[3] this Court on January 31, 1981 ordered the
separation from service of respondent.[4]
Now he faces disbarment.
The records reveal the following facts:
From the Report and Recommendation of the Commission on Bar Discipline, it appears that complainant
and respondent were married on October 29, 1953 at the Sacred Heart Roman Catholic Church in Quezon
City. They established their residence in Antipolo, Rizal, were eight of their eleven children were born. In 1962
respondent relocated his family to Dadiangas, Cotabato (Now General Santos City), where his last three children
were born and where he practiced his profession until his appointment as a CFI Judge in Butuan City on January
30, 1976.
In August, 1976, shortly after being appointed as CFI Judge, respondent began cohabiting with a certain
Elena (Helen) Pea, in Nasipit, Agusan Del Norte. On December 28, 1977 Elena gave birth to their first child,
named Ofelia Sembrano Pea.
In view of this cohabitation, a certain Atty. Tranquilino Calo filed an administrative complaint against
respondent for immorality. After investigation, the penalty of suspension from office for a period of six months
without pay was meted by this Court upon respondent.[5]
Despite this penalty, respondent still continued to cohabit with Elena, giving rise to another charge of
immorality and other administrative cases, such as conduct unbecoming an officer of the court, and grossly
immoral conduct. These cases were consolidated and after investigation, this Court ordered his dismissal and
separation from the service.[6]
But his dismissal as a judge did not impel respondent to mend his ways. He continued living with Elena,
which resulted in the birth on September 20, 1989, of their second child named Laella Pea Tapucar. Moreover,
he completely abandoned complainant and his children by her.
Respondent later moved from Nasipit, Agusan del Norte back to Antipolo, Rizal, bringing along Elena and
their two children. And on March 5, 1992, respondent contracted marriage with Elena in a ceremony solemnized
by Metropolitan Trial Court Judge Isagani A. Geronimo of Antipolo, Rizal. This was done while the respondents
marriage to complainant subsists, as nothing on record shows the dissolution thereof.
Complainant, in the meanwhile, had migrated to United States of America upon her retirement from the
government service in 1990. However, her children, who remained in Antipolo, kept her posted of the misery
they allegedly suffered because of their fathers acts, including deception and intrigues against them. Thus,
despite having previously withdrawn a similar case which she filed in 1976, complainant was forced to file the
present petition for disbarment under the compulsion of the material impulse to shield and protect her children
from the despotic and cruel acts of their own father. Complainant secured the assistance of her eldest daughter,
Atty. Ma. Susana Tapucar-Baua, to represent her in this case.
Consistent with Section 20, Rule 139-B of the Rules of Court, the matter was referred to the Commission
on Bar Discipline of the Integrated Bar of the Philippines for investigation, report and recommendation. After
conducting a thorough investigation, the Commission through Commissioner Victor C. Fernandez recommended
that respondent be disbarred, and his name be stricken off the roll of attorneys. Mainly, this was premised on
the ground that, notwithstanding sanctions previously imposed upon him by the Honorable Supreme Court,
respondent continued the illicit liaison with Elena.[7]
In his report Commissioner Fernandez noted that, instead of contradicting the charges against him,
respondent displayed arrogance, and even made a mockery of the law and the Court, as when he said:
I have been ordered suspended by Supreme Court for two months without pay in 1980 for having a mistress,
the same girl Ms. Elena (Helen) Pea, now my wife. Being ordered separated in later administrative case
constitute double jeopardy. If now disbarred for marrying Ms. Elena Pea will constitute triple jeopardy. If thats
the law so be it.[8]
Based on said report, the Board of Governors of the Integrated Bar of the Philippines, passed on May 17,
1997, a Resolution adopting the Commissioners recommendation, as follows:
RESOLUTION NO. XII-97-97
Adm. Case No. 4148
Remedios Ramirez Tapucar vs. Atty. Lauro L. Tapucar
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner in the above-titled case, herein made part of the
Resolution/Decision as Annex A; and, finding the recommendation therein to be fully supported by the
evidence on record and the applicable laws and rules, Respondent Atty. Lauro L. Tapucar is hereby
DISBARRED and that his name be stricken off the roll of attorneys.
We find the Report and Recommendation of Commissioner Fernandez, as approved and adopted by the
Board of Governors of IBP, more than sufficient to justify and support the foregoing Resolution, herein considered
as the recommendation to this Court by said Board pursuant to Rule 139-B, Sec. 12(b), of the Rules of Court.* We
are in agreement that respondents actuations merit the penalty of disbarment.
Well settled is the rule that good moral character is not only a condition precedent for admission to the legal
profession, but it must also remain intact in order to maintain ones good standing in that exclusive and honored
fraternity.[9] There is perhaps no profession after that of the sacred ministry in which a high-toned morality is
more imperative than that of law.[10] The Code of Professional Responsibility mandates that:
Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor
should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal
profession.*
As this Court often reminds members of the Bar, they must live up to the standards and norms expected of
the legal profession, by upholding the ideals and tenets embodied in the Code of Professional Responsibility
always. Lawyers must maintain a high standards of legal proficiency, as well as morality including honesty,
integrity and fair dealing. For they are at all times subject to the scrutinizing eye of public opinion and community
approbation. Needless to state, those whose conduct both public and private fails this scrutiny would have to be
disciplined and, after appropriate proceedings, penalized accordingly.
Moreover, it should be recalled that respondent here was once a member of the judiciary, a fact that
aggravates this professional infractions. For having occupied that place of honor in the Bench, he knew a judges
actuations ought to be free from any appearance of impropriety. [11] For a judge is the visible representation of
the law, more importantly, of justice. Ordinary citizens consider him as a source of strength that fortifies their will
to obey the law.[12] Indeed, a judge should avoid the slightest infraction of the law in all of his actuations, lest it
be a demoralizing example to others.[13] Surely, respondent could not have forgotten the Code of Judicial
Conduct entirely as to lose its moral imperatives.[14]
Like a judge who is held to a high standard of integrity and ethical conduct, [15] an attorney-at-law is also
invested with public trust. Judges and lawyers serve in the administration of justice. Admittedly, as officers of the
court, lawyers must ensure the faith and confidence of the public that justice is administered with dignity and
civility. A high degree or moral integrity is expected of a lawyer in the community where he resides. He must
maintain due regard for public decency in an orderly society.
A lawyer is expected at all times to uphold the integrity and dignity of the legal profession by faithfully
performing his duties to society, to the bar, to the courts and to his clients.[16]Exacted from him, as a member of
the profession charged with the responsibility to stand as a shield in the defense of what is right, are such positive
qualities of decency, truthfulness and responsibility that have been compendiously described as moral character.
To achieve such end, every lawyer needs to strive at all times to honor and maintain the dignity of his profession,
and thus improve not only the public regard for the Bar but also the administration of justice.
On these considerations, the Court may disbar or suspend a lawyer for misconduct, whether in his
professional or private capacity, which shows him to be wanting in moral character, in honesty, probity, and good
demeanor, thus proving unworthy to continue as an officer of the court.[17]
The power to disbar, however, is one to be exercised with great caution, and only in a clear case of
misconduct which seriously affects the standing and character of the lawyer as an officer of the Court of and
member of the bar.[18] For disbarment proceedings are intended to afford the parties thereto full opportunity to
vindicate their cause before disciplinary action is taken, to assure the general public that those who are tasked
with the duty of administering justice are competent, honorable, trustworthy men and women in whom the Courts
and the clients may repose full confidence.
In the case of Obusan vs. Obusan, Jr.,[19] a complaint for disbarment was filed against a member of the bar
by his wife. She was able to prove that he had abandoned his wife and their son; and that he had adulterous
relations with a married but separated woman. Respondent was not able to overcome the evidence presented
by his wife that he was guilty of grossly immoral conduct. In another case,[20] a lawyer was disbarred when he
abandoned his lawful wife and cohabited with another woman who had borne him a child. The Court held that
respondent failed to maintain the highest degree of morality expected and required of a member of a bar.
In the present case, the record shows that despite previous sanctions imposed upon by this Court,
respondent continued his illicit liaison with a woman other than lawfully-wedded wife.The report of the
Commissioner assigned to investigate thoroughly the complaint found respondent far from contrite; on the
contrary, he exhibited a cavalier attitude, even arrogance; in the face of charges against him. The IBP Board of
Governors, tasked to determine whether he still merited the privileges extended to a member of the legal
profession, resolved the matter against him. For indeed, evidence of grossly immoral conduct abounds against
him and could not be explained away. Keeping a mistress, entering into another marriage while a prior one still
subsists, as well as abandoning and/or mistreating complainant and their children, show his disregard of family
obligations, morality and decency, the law and the lawyers oath. Such gross misbehavior over a long period of
time clearly shows a serious flaw in respondents character, his moral indifference to scandal in the community,
and his outright defiance of established norms. All these could not but put the legal profession in disrepute and
place the integrity of the administration of justice in peril, hence the need for strict but appropriate disciplinary
action.
IN VIEW THEREOF, respondent Atty. Lauro L. Tapucar is hereby DISBARRED. The Clerk of Court is
directed to strike out his name from the Roll of Attorneys.
SO ORDERED.
Republic of the Philippines
Supreme Court
Manila
EN BANC
MAELOTISEA S. GARRIDO,
Complainant,
-
versus -
ATTYS. ANGEL E. GARRIDO and
ROMANA P. VALENCIA,
Respondents.
A.C. No. 6593
Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,

ABAD,
VILLARAMA, JR.,
PEREZ, and

MENDOZA, JJ.
Promulgated:
______________
x-----------------------------------------------------------------------------------------x
DECISION
PER CURIAM:
Maelotisea Sipin Garrido filed a complaint-affidavit[1] and a supplemental affidavit[2] for disbarment against the
respondents Atty. Angel E. Garrido (Atty. Garrido) and Atty. Romana P.Valencia (Atty. Valencia) before the Integrated Bar
of the Philippines (IBP) Committee on Discipline charging them with gross immorality. The complaint-affidavit states:
1.
That I am the legal wife of Atty. Angel E. Garrido by virtue of our marriage on June 23, 1962 at San
Marcelino Church, Ermita, Manila which was solemnized by Msgr. Daniel Cortes x x x
2.
3.
4.
5.
That our marriage blossomed into having us blessed with six (6) children, namely, Mat Elizabeth,
Arnel Angelito, Madeleine Eloiza, Arnel Angelo, Arnel Victorino and Madonna Angeline, all surnamed
Garrido;
xxxx
That on May, 1991, during my light moments with our children, one of my daughters, Madeleine
confided to me that sometime on the later part of 1987, an unknown caller talked with her claiming that
the former is a child of my husband. I ignored it and dismissed it as a mere joke. But when May
Elizabeth, also one of my daughters told me that sometime on August 1990, she saw my husband
strolling at the Robinsons Department Store at Ermita, Manila together with a woman and a child who
was later identified as Atty. Ramona Paguida Valencia and Angeli Ramona Valencia Garrido,
respectively x x x
xxxx
6.
That I did not stop from unearthing the truth until I was able to secure the Certificate of Live Birth of
the child, stating among others that the said child is their daughter and that Atty. Angel Escobar Garrido
and Atty. Romana Paguida Valencia were married at Hongkong sometime on 1978.
7.
That on June 1993, my husband left our conjugal home and joined Atty. Ramona Paguida Valencia
at their residence x x x
8.
That since he left our conjugal home he failed and still failing to give us our needed financial support
to the prejudice of our children who stopped schooling because of financial constraints.
xxxx
That I am also filing a disbarment proceedings against his mistress as alleged in the same affidavit,
Atty. Romana P. Valencia considering that out of their immoral acts I suffered not only mental anguish but
also besmirch reputation, wounded feelings and sleepless nights; x x x
In his Counter-Affidavit,[3] Atty. Garrido denied Maelotiseas charges and imputations. By way of defense, he
alleged that Maelotisea was not his legal wife, as he was already married to Constancia David (Constancia) when he married
Maelotisea. He claimed he married Maelotisea after he and Constancia parted ways. He further alleged that Maelotisea
knew all his escapades and understood his bad boy image before she married him in 1962. As he and Maelotisea grew apart
over the years due to financial problems, Atty. Garrido met Atty. Valencia. He became close to Atty. Valencia to whom he
confided his difficulties. Together, they resolved his personal problems and his financial difficulties with his second family.
Atty. Garrido denied that he failed to give financial support to his children with Maelotisea, emphasizing that all his six (6)
children were educated in private schools; all graduated from college except for Arnel Victorino, who finished a special
secondary course.[4] Atty. Garrido alleged that Maelotisea had not been employed and had not practiced her profession for
the past ten (10) years.
Atty. Garrido emphasized that all his marriages were contracted before he became a member of the bar on May 11,
1979, with the third marriage contracted after the death of Constancia on December 26, 1977. Likewise, his children with
Maelotisea were born before he became a lawyer.
In her Counter-Affidavit,[5] Atty. Valencia denied that she was the mistress of Atty. Garrido. She explained that
Maelotisea was not the legal wife of Atty. Garrido since the marriage between them was void from the beginning due to the
then existing marriage of Atty. Garrido with Constancia. Atty. Valencia claimed that Maelotisea knew of the romantic
relationship between her and Atty. Garrido, as they (Maelotisea and Atty. Valencia) met in 1978. Maelotisea kept silent
about her relationship with Atty. Garrido and had maintained this silence when she (Atty. Valencia) financially helped Atty.
Garrido build a house for his second family. Atty. Valencia alleged that Maelotisea was not a proper party to this suit
because of her silence; she kept silent when things were favorable and beneficial to her. Atty. Valencia also alleged that
Maelotisea had no cause of action against her.
In the course of the hearings, the parties filed the following motions before the IBP Commission on Bar Discipline:
First, the respondents filed a Motion for Suspension of Proceedings[6] in view of the criminal complaint for
concubinage Maelotisea filed against them, and the Petition for Declaration of Nullity[7] (of marriage) Atty. Garrido filed to
nullify his marriage to Maelotisea. The IBP Commission on Bar Discipline denied this motion for lack of merit.
Second, the respondents filed a Motion to Dismiss[8] the complaints after the Regional Trial Court of Quezon City
declared the marriage between Atty. Garrido and Maelotisea an absolute nullity. Since Maelotisea was never the legal wife
of Atty. Garrido, the respondents argued that she had no personality to file her complaints against them.The respondents
also alleged that they had not committed any immoral act since they married when Atty. Garrido was already a widower,
and the acts complained of were committed before his admission to the bar. The IBP Commission on Bar Discipline also
denied this motion.[9]
Third, Maelotisea filed a motion for the dismissal of the complaints she filed against the respondents, arguing that
she wanted to maintain friendly relations with Atty. Garrido, who is the father of her six (6) children. [10] The IBP
Commission on Bar Discipline likewise denied this motion.[11]
On April 13, 2004, Investigating Commissioner Milagros V. San Juan (Investigating Commissioner San Juan)
submitted her Report and Recommendation for the respondents disbarment.[12] The Commission on Bar Discipline of the
IBP Board of Governors (IBP Board of Governors) approved and adopted this recommendation with modification under
Resolution No. XVI-2004-375 dated July 30, 2004. This resolution in part states:
x x x finding the recommendation fully supported by the evidence on record and the applicable laws and
rules, and considering that Atty. Garrido exhibited conduct which lacks the degree of morality required as
members of the bar, Atty. Angel E. Garrido is hereby DISBARRED for gross immorality. However, the
case against Atty. Romana P. Valencia is hereby DISMISSED for lack of merit of the complaint.
Atty. Garrido moved to reconsider this resolution, but the IBP Commission on Bar Discipline denied his motion under
Resolution No. XVII-2007-038 dated January 18, 2007.
Atty. Garrido now seeks relief with this Court through the present petition for review. He submits that under the
circumstances, he did not commit any gross immorality that would warrant his disbarment. He also argues that the offenses
charged have prescribed under the IBP rules.
Additionally, Atty. Garrido pleads that he be allowed on humanitarian considerations to retain his profession; he is
already in the twilight of his life, and has kept his promise to lead an upright and irreproachable life notwithstanding his
situation.
In compliance with our Resolution dated August 25, 2009, Atty. Alicia A. Risos-Vidal (Atty. Risos-Vidal), Director
of the Commission on Bar Discipline, filed her Comment on the petition. She recommends a modification of the penalty
from disbarment to reprimand, advancing the view that disbarment is very harsh considering that the 77-year old Atty.
Garrido took responsibility for his acts and tried to mend his ways by filing a petition for declaration of nullity of his
bigamous marriage. Atty. Risos-Vidal also notes that no other administrative case has ever been filed against Atty. Garrido.
THE COURTS RULING
After due consideration, we resolve to adopt the findings of the IBP Board of Governors against Atty.
Garrido, and to reject its recommendation with respect to Atty. Valencia.
General Considerations
Laws dealing with double jeopardy or with procedure such as the verification of pleadings and prejudicial questions, or in
this case, prescription of offenses or the filing of affidavits of desistance by the complainant do not apply in the
determination of a lawyers qualifications and fitness for membership in the Bar.[13] We have so ruled in the past and we see
no reason to depart from this ruling.[14] First, admission to the practice of law is a component of the administration of justice
and is a matter of public interest because it involves service to the public. [15] The admission qualifications are also
qualifications for the continued enjoyment of the privilege to practice law. Second, lack of qualifications or the violation of
the standards for the practice of law, like criminal cases, is a matter of public concern that the State may inquire into through
this Court. In this sense, the complainant in a disbarment case is not a direct party whose interest in the outcome of the
charge is wholly his or her own;[16] effectively, his or her participation is that of a witness who brought the matter to the
attention of the Court.
As applied to the present case, the time that elapsed between the immoral acts charged and the filing of the complaint
is not material in considering the qualification of Atty. Garrido when he applied for admission to the practice of law, and
his continuing qualification to be a member of the legal profession. From this perspective, it is not important that the acts
complained of were committed before Atty. Garrido was admitted to the practice of law. As we explained in Zaguirre v.
Castillo,[17] the possession of good moral character is both a condition precedent and a continuing requirement to warrant
admission to the bar and to retain membership in the legal profession. Admission to the bar does not preclude a subsequent
judicial inquiry, upon proper complaint, into any question concerning the mental or moral fitness of the respondent before
he became a lawyer.[18] Admission to the practice only creates the rebuttable presumption that the applicant has all the
qualifications to become a lawyer; this may be refuted by clear and convincing evidence to the contrary even after admission
to the Bar.[19]
Parenthetically, Article VIII Section 5(5) of the Constitution recognizes the disciplinary authority of the Court over
the members of the Bar to be merely incidental to the Court's exclusive power to admit applicants to the practice of
law. Reinforcing the implementation of this constitutional authority is Section 27, Rule 138 of the Rules of Court which
expressly states that a member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court
for, among others, any deceit, grossly immoral conduct, or violation of the oath that he is required to take before admission
to the practice of law.
In light of the public service character of the practice of law and the nature of disbarment proceedings as a public
interest concern, Maelotiseas affidavit of desistance cannot have the effect of discontinuing or abating the disbarment
proceedings. As we have stated, Maelotisea is more of a witness than a complainant in these proceedings. We note further
that she filed her affidavits of withdrawal only after she had presented her evidence; her evidence are now available for the
Courts examination and consideration, and their merits are not affected by her desistance. We cannot fail to note, too, that
Mealotisea filed her affidavit of desistance, not to disown or refute the evidence she had submitted, but solely becuase of
compassion (and, impliedly, out of concern for her personal financial interest in continuing friendly relations with Atty.
Garrido).
Immoral conduct involves acts that are willful, flagrant, or shameless, and that show a moral indifference to the
opinion of the upright and respectable members of the community.[20] Immoral conduct is gross when it is so corrupt as to
constitute a criminal act, or so unprincipled as to be reprehensible to a high degree, or when committed under such
scandalous or revolting circumstances as to shock the communitys sense of decency.[21] We make these distinctions as the
supreme penalty of disbarment arising from conduct requires grossly immoral, not simply immoral, conduct.[22]
In several cases, we applied the above standard in considering lawyers who contracted an unlawful second marriage
or multiple marriages.
In Macarrubo v. Macarrubo,[23] the respondent lawyer entered into multiple marriages and subsequently used legal
remedies to sever them. We ruled that the respondents pattern of misconduct undermined the institutions of marriage and
family institutions that this society looks up to for the rearing of our children, for the development of values essential to the
survival and well-being of our communities, and for the strengthening of our nation as a whole. In this light, no fate other
than disbarment awaited the wayward respondent.
In Villasanta v. Peralta,[24] the respondent lawyer married the complainant while his marriage with his first wife
was subsisting. We held that the respondents act of contracting the second marriage was contrary to honesty, justice, decency
and morality. The lack of good moral character required by the Rules of Court disqualified the respondent from admission
to the Bar.
Similar to Villasanta was the case of Conjuangco, Jr. v. Palma,[25] where the respondent secretly contracted a
second marriage with the daughter of his client in Hongkong. We found that the respondent exhibited a deplorable lack of
that degree of morality required of members of the Bar. In particular, he made a mockery of marriage a sacred institution
that demands respect and dignity. We also declared his act of contracting a second marriage contrary to honesty, justice,
decency and morality.
In this case, the undisputed facts gathered from the evidence and the admissions of Atty. Garrido established a
pattern of gross immoral conduct that warrants his disbarment. His conduct was not only corrupt or unprincipled; it was
reprehensible to the highest degree.
First, Atty. Garrido admitted that he left Constancia to pursue his law studies; thereafter and during the marriage,
he had romantic relationships with other women. He had the gall to represent to this Court that the study of law was his
reason for leaving his wife; marriage and the study of law are not mutually exclusive.
Second, he misrepresented himself to Maelotisea as a bachelor, when in truth he was already married to
Constancia.[26] This was a misrepresentation given as an excuse to lure a woman into a prohibited relationship.
Third, Atty. Garrido contracted his second marriage with Maelotisea notwithstanding the subsistence of his first
marriage. This was an open admission, not only of an illegal liaison, but of the commission of a crime.
Fourth, Atty. Garrido engaged in an extra-marital affair with Atty. Valencia while his two marriages were in place
and without taking into consideration the moral and emotional implications of his actions on the two women he took as
wives and on his six (6) children by his second marriage.
Fifth, instead of making legal amends to validate his marriage with Maelotisea upon the death of Constancia, Atty.
Garrido married Atty. Valencia who bore him a daughter.
Sixth, Atty. Garrido misused his legal knowledge and convinced Atty. Valencia (who was not then a lawyer) that
he was free to marry, considering that his marriage with Maelotisea was not valid.
Seventh, as the evidence on record implies, Atty. Garrido married Atty. Valencia in Hongkong in an apparent
attempt to accord legitimacy to a union entered into while another marriage was in place.
Eighth, after admission to the practice of law, Atty. Garrido simultaneously cohabited and had sexual relations with
two (2) women who at one point were both his wedded wives. He also led a double life with two (2) families for a period
of more than ten (10) years.
Lastly, Atty. Garrido petitioned for the nullity of his marriage to Maelotisea. Contrary to the position advanced by
Atty. Alicia A. Risos-Vidal, this was not an act of facing up to his responsibility or an act of mending his ways. This was
an attempt, using his legal knowledge, to escape liability for his past actions by having his second marriage
declared void after the present complaint was filed against him.
By his actions, Garrido committed multiple violations relating to the legal profession, specifically, violations of the bar
admission rules, of his lawyers oath, and of the ethical rules of the profession.
He did not possess the good moral character required of a lawyer at the time of his admission to the Bar. [27] As a
lawyer, he violated his lawyers oath,[28] Section 20(a) of Rule 138 of the Rules of Court,[29] and Canon 1 of the Code of
Professional Responsibility,[30] all of which commonly require him to obey the laws of the land. In marrying Maelotisea, he
committed the crime of bigamy, as he entered this second marriage while his first marriage with Constancia was
subsisting. He openly admitted his bigamy when he filed his petition to nullify his marriage to Maelotisea.
He violated ethical rules of the profession, specifically, Rule 1.01 of the Code of Professional Responsibility, which
commands that he shall not engage in unlawful, dishonest, immoral or deceitful conduct; Canon 7 of the same Code,
which demands that [a] lawyer shall at all times uphold the integrity and dignity of the legal profession; Rule 7.03 of
the Code of Professional Responsibility, which provides that, [a] lawyer shall not engage in conduct that adversely
reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner
to the discredit of the legal profession.
As a lawyer, his community looked up to Atty. Garrido with the expectation and that he would set a good example in
promoting obedience to the Constitution and the laws. When he violated the law and distorted it to cater to his own personal
needs and selfish motives, he discredited the legal profession and created the public impression that laws are mere tools of
convenience that can be used, bended and abused to satisfy personal whims and desires. In this case, he also used the law
to free him from unwanted relationships.
The Court has often reminded the members of the bar to live up to the standards and norms expected of the legal
profession by upholding the ideals and principles embodied in the Code of Professional Responsibility. [31] Lawyers are
bound to maintain not only a high standard of legal proficiency, but also of morality, including honesty, integrity and fair
dealing.[32] Lawyers are at all times subject to the watchful public eye and community approbation. [33] Needless to state,
those whose conduct both public and private fail this scrutiny have to be disciplined and, after appropriate proceedings,
accordingly penalized.[34]
Atty. Valencia
We agree with the findings of Investigating Commissioner San Juan that Atty. Valencia should be administratively liable
under the circumstances for gross immorality:
x x x The contention of respondent that they were not yet lawyers in March 27, 1978 when they got married
shall not afford them exemption from sanctions, for good moral character is required as a condition
precedent to admission to the Bar. Likewise there is no distinction whether the misconduct was committed
in the lawyers professional capacity or in his private life. Again, the claim that his marriage to complainant
was void ab initio shall not relieve respondents from responsibility x x x Although the second marriage of
the respondent was subsequently declared null and void the fact remains that respondents exhibited conduct
which lacks that degree of morality required of them as members of the Bar.[35]
Moral character is not a subjective term but one that corresponds to objective reality. [36] To have good moral
character, a person must have the personal characteristics of being good. It is not enough that he or she has a good
reputation, i.e., the opinion generally entertained about a person or the estimate in which he or she is held by the public in
the place where she is known.[37] The requirement of good moral character has four general purposes, namely: (1) to protect
the public; (2) to protect the public image of lawyers; (3) to protect prospective clients; and (4) to protect errant lawyers
from themselves.[38] Each purpose is as important as the other.
Under the circumstances, we cannot overlook that prior to becoming a lawyer, Atty. Valencia already knew that
Atty. Garrido was a married man (either to Constancia or to Maelotisea), and that he already had a family. As Atty. Garridos
admitted confidante, she was under the moral duty to give him proper advice; instead, she entered into a romantic
relationship with him for about six (6) years during the subsistence of his two marriages. In 1978, she married Atty. Garrido
with the knowledge that he had an outstanding second marriage. These circumstances, to our mind, support the conclusion
that she lacked good moral character; even without being a lawyer, a person possessed of high moral values, whose
confidential advice was sought by another with respect to the latters family problems, would not aggravate the situation by
entering into a romantic liaison with the person seeking advice, thereby effectively alienating the other persons feelings and
affection from his wife and family.
While Atty. Valencia contends that Atty. Garridos marriage with Maelotisea was null and void, the fact remains that he took
a man away from a woman who bore him six (6) children. Ordinary decency would have required her to ward off Atty.
Garridos advances, as he was a married man, in fact a twice-married man with both marriages subsisting at that time; she
should have said no to Atty. Garrido from the very start. Instead, she continued her liaison with Atty. Garrido, driving him,
upon the death of Constancia, away from legitimizing his relationship with Maelotisea and their children. Worse than this,
because of Atty. Valencias presence and willingness, Atty. Garrido even left his second family and six children for a third
marriage with her. This scenario smacks of immorality even if viewed outside of the prism of law.
We are not unmindful of Atty. Valencias expressed belief that Atty. Garridos second marriage to Maelotisea was
invalid; hence, she felt free to marry Atty. Garrido. While this may be correct in the strict legal sense and was later on
confirmed by the declaration of the nullity of Atty. Garridos marriage to Maelotisea, we do not believe at all in the honesty
of this expressed belief.
The records show that Atty. Valencia consented to be married in Hongkong, not within the country. Given that this
marriage transpired before the declaration of the nullity of Atty. Garridos second marriage, we can only call this Hongkong
marriage a clandestine marriage, contrary to the Filipino tradition of celebrating a marriage together with family. Despite
Atty. Valencias claim that she agreed to marry Atty. Garrido only after he showed her proof of his capacity to enter into a
subsequent valid marriage, the celebration of their marriage in Hongkong[39] leads us to the opposite conclusion; they
wanted to marry in Hongkong for the added security of avoiding any charge of bigamy by entering into the subsequent
marriage outside Philippine jurisdiction. In this regard, we cannot help but note that Atty. Valencia afterwards opted to
retain and use her surname instead of using the surname of her husband. Atty. Valencia, too, did not appear to mind that her
husband did not live and cohabit with her under one roof, but with his second wife and the family of this
marriage. Apparently, Atty. Valencia did not mind at all sharing her husband with another woman. This, to us, is a clear
demonstration of Atty. Valencias perverse sense of moral values.
Measured against the definition of gross immorality, we find Atty. Valencias actions grossly immoral. Her actions
were so corrupt as to approximate a criminal act, for she married a man who, in all appearances, was married to another and
with whom he has a family. Her actions were also unprincipled and reprehensible to a high degree; as the confidante of
Atty. Garrido, she preyed on his vulnerability and engaged in a romantic relationship with him during the subsistence of his
two previous marriages. As already mentioned, Atty. Valencias conduct could not but be scandalous and revolting to the
point of shocking the communitys sense of decency; while she professed to be the lawfully wedded wife, she helped the
second family build a house prior to her marriage to Atty. Garrido, and did not object to sharing her husband with the woman
of his second marriage.
We find that Atty. Valencia violated Canon 7 and Rule 7.03 of the Code of Professional Responsibility, as her
behavior demeaned the dignity of and discredited the legal profession. She simply failed in her duty as a lawyer to adhere
unwaveringly to the highest standards of morality.[40] In Barrientos v. Daarol,[41] we held that lawyers, as officers of the
court, must not only be of good moral character but must also be seen to be of good moral character and must lead lives in
accordance with the highest moral standards of the community. Atty. Valencia failed to live up to these standards before
she was admitted to the bar and after she became a member of the legal profession.
Conclusion
Membership in the Bar is a privilege burdened with conditions. As a privilege bestowed by law through the Supreme
Court, membership in the Bar can be withdrawn where circumstances concretely show the lawyers lack of the essential
qualifications required of lawyers. We resolve to withdraw this privilege from Atty. Angel E. Garrido and Atty. Rowena P.
Valencia for this reason.
In imposing the penalty of disbarment upon the respondents, we are aware that the power to disbar is one to be
exercised with great caution and only in clear cases of misconduct that seriously affects the standing and character of the
lawyer as a legal professional and as an officer of the Court.[42]
We are convinced from the totality of the evidence on hand that the present case is one of them. The records show
the parties pattern of grave and immoral misconduct that demonstrates their lack of mental and emotional fitness and moral
character to qualify them for the responsibilities and duties imposed on lawyers as professionals and as officers of the court.
While we are keenly aware of Atty. Garridos plea for compassion and his act of supporting his children with
Maelotisea after their separation, we cannot grant his plea. The extent of his demonstrated violations of his oath, the Rules
of Court and of the Code of Professional Responsibility overrides what under other circumstances are commendable traits
of character.
In like manner, Atty. Valencias behavior over a long period of time unequivocally demonstrates a basic and serious
flaw in her character, which we cannot simply brush aside without undermining the dignity of the legal profession and
without placing the integrity of the administration of justice into question. She was not an on-looker victimized by the
circumstances, but a willing and knowing full participant in a love triangle whose incidents crossed into the illicit.
WHEREFORE, premises considered, the Court resolves to:
(1) DISBAR Atty. Angel E. Garrido from the practice of law for gross immorality, violation of the Lawyers Oath;
and violation of Rule 1.01, Canon 7 and Rule 7.03 of the Code of Professional Responsibility; and
(2) DISBAR Atty. Romana P. Valencia from the practice of law for gross immorality, violation of Canon 7 and
Rule 7.03 of the Code of Professional Responsibility.
Let a copy of this Decision be attached to the personal records of Atty. Angel E. Garrido and Atty. Romana P.
Valencia in the Office of the Bar Confidant, and another copy furnished the Integrated Bar of the Philippines.
The Clerk of Court is directed to strike out the names of Angel E. Garrido and Rowena P. Valencia from the Roll
of Attorneys.
SO ORDERED.
THIRD DIVISION
FERDINAND A. CRUZ, 332 Edang St., Pasay City,
G.R. No. 154464
Petitioner,
Present:
- versus TINGA, J.,*
JUDGE PRISCILLA MIJARES, Presiding Judge, Regional
Trial Court, Branch 108, Pasay City, Metro Manila,
Public Respondent.
CHICO-NAZARIO,
Acting Chairperson,
VELASCO, JR.,*
NACHURA, and
BENJAMIN MINA, JR., 332 Edang St., Pasay City,
REYES, JJ.
Private Respondent.
Promulgated:
September 11, 2008
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
This is a Petition for Certiorari, Prohibition and Mandamus, with prayer for the issuance of a writ of preliminary
injunction under Rule 65 of the Rules of Court. It was directly filed with this Court assailing the Resolutions dated May 10,
2002[1] and July 31, 2002[2] of the Regional Trial Court (RTC), Branch 108, Pasay City, which denied the appearance of the
plaintiff Ferdinand A. Cruz, herein petitioner, as party litigant, and the refusal of the public respondent, Judge Priscilla
Mijares, to voluntarily inhibit herself from trying the case. No writ of preliminary injunction was issued by this Court.
The antecedents:
On March 5, 2002, Ferdinand A. Cruz (petitioner) sought permission to enter his appearance for and on his behalf, before
the RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-0410, for Abatement of Nuisance. Petitioner, a fourth
year law student, anchors his claim on Section 34 of Rule 138 of the Rules of Court[3] that a non-lawyer may appear before
any court and conduct his litigation personally.
During the pre-trial, Judge Priscilla Mijares required the petitioner to secure a written permission from the Court
Administrator before he could be allowed to appear as counsel for himself, a party-litigant. Atty. Stanley Cabrera, counsel
for Benjamin Mina, Jr., filed a Motion to Dismiss instead of a pre-trial brief to which petitioner Cruz vehemently objected
alleging that a Motion to Dismiss is not allowed after the Answer had been filed. Judge Mijares then remarked, Hay naku,
masama yung marunong pa sa Huwes. Ok? and proceeded to hear the pending Motion to Dismiss and calendared the
next hearing on May 2, 2002.
On March 6, 2002, petitioner Cruz filed a Manifestation and Motion to Inhibit,[4] praying for the voluntary
inhibition of Judge Mijares. The Motion alleged that expected partiality on the part of the respondent judge in the conduct
of the trial could be inferred from the contumacious remarks of Judge Mijares during the pre-trial. It asserts that the judge,
in uttering an uncalled for remark, reflects a negative frame of mind, which engenders the belief that justice will not be
served.[5]
In an Order[6] dated April 19, 2002, Judge Mijares denied the motion for inhibition stating that throwing tenuous
allegations of partiality based on the said remark is not enough to warrant her voluntary inhibition, considering that it was
said even prior to the start of pre-trial. Petitioner filed a motion for reconsideration[7] of the said order.
On May 10, 2002, Judge Mijares denied the motion with finality.[8] In the same Order, the trial court held that for
the failure of petitioner Cruz to submit the promised document and jurisprudence, and for his failure to satisfy the
requirements or conditions under Rule 138-A of the Rules of Court, his appearance was denied.
In a motion for reconsideration,[9] petitioner reiterated that the basis of his appearance was not Rule 138-A, but
Section 34 of Rule 138. He contended that the two Rules were distinct and are applicable to different circumstances, but
the respondent judge denied the same, still invoking Rule 138-A, in an Order[10] dated July 31, 2002.
On August 16, 2002, the petitioner directly filed with this Court, the instant petition and assigns the following
errors:
I.
THE RESPONDENT REGIONAL TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT
DENIED THE APPEARANCE OF THE PETITIONER, FOR AND IN THE LATTERS BEHALF, IN CIVIL CASE NO. 010401 [sic] CONTRARY TO RULE 138, SECTION 34 OF THE RULES OF COURT, PROVIDING FOR THE
APPEARANCE OF NON-LAWYERS AS A PARTY LITIGANT;
II.
THE RESPONDENT COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT DID NOT VOLUNTARILY
INHIBIT DESPITE THE ADVENT OF JURISPRUDENCE [sic] THAT SUCH AN INHIBITION IS PROPER TO
PRESERVE THE PEOPLES FAITH AND CONFIDENCE TO THE COURTS.
The core issues raised before the Court are: (1) whether the extraordinary writs of certiorari, prohibition and
mandamus under Rule 65 of the 1997 Rules of Court may issue; and (2) whether the respondent court acted with grave
abuse of discretion amounting to lack or excess of jurisdiction when it denied the appearance of the petitioner as party
litigant and when the judge refused to inhibit herself from trying the case.
This Courts jurisdiction to issue writs of certiorari, prohibition, mandamus and injunction is not exclusive; it has
concurrent jurisdiction with the RTCs and the Court of Appeals. This concurrence of jurisdiction is not, however, to be
taken as an absolute, unrestrained freedom to choose the court where the application therefor will be directed.[11]A
becoming regard of the judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs
against the RTCs should be filed with the Court of Appeals.[12] The hierarchy of courts is determinative of the appropriate
forum for petitions for the extraordinary writs; and only in exceptional cases and for compelling reasons, or if warranted
by the nature of the issues reviewed, may this Court take cognizance of petitions filed directly before it.[13]
Considering, however, that this case involves the interpretation of Section 34, Rule 138 and Rule 138-A of the
Rules of Court, the Court takes cognizance of herein petition. Nonetheless, the petitioner is cautioned not to continue his
practice of filing directly before this Court petitions under Rule 65 when the issue raised can be resolved with dispatch by
the Court of Appeals. We will not tolerate litigants who make a mockery of the judicial hierarchy as it necessarily delays
more important concerns before us.
In resolving the second issue, a comparative reading of Rule 138, Section 34 and Rule 138-A is necessary.
Rule 138-A, or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
Section 1. Conditions for Student Practice. A law student who has successfully completed his 3rd year of
the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal
education program approved by the Supreme Court, may appear without compensation in any civil,
criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent
clients accepted by the legal clinic of the law school.
Sec. 2. Appearance. The appearance of the law student authorized by this rule, shall be under the direct
supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law
school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by
the supervising attorney for and in behalf of the legal clinic.
The respondent court held that the petitioner could not appear for himself and on his behalf because of his failure
to comply with Rule 138-A. In denying petitioners appearance, the court a quo tersely finds refuge in the fact that, on
December 18, 1986, this Court issued Circular No. 19, which eventually became Rule 138-A, and the failure of Cruz to
prove on record that he is enrolled in a recognized schools clinical legal education program and is under supervision of an
attorney duly accredited by the law school.
However, the petitioner insisted that the basis of his appearance was Section 34 of Rule 138, which provides:
Sec. 34. By whom litigation is conducted. - In the court of a justice of the peace, a party may conduct his
litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid
of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney,
and his appearance must be either personal or by a duly authorized member of the bar.
and is a rule distinct from Rule 138-A.
From the clear language of this provision of the Rules, it will have to be conceded that the contention of the
petitioner has merit. It recognizes the right of an individual to represent himself in any case to which he is a party. The
Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must
either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the
course of proceedings from commencement to the termination of the litigation.[14] Considering that a party personally
conducting his litigation is restricted to the same rules of evidence and procedure as those qualified to practice
law,[15] petitioner, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own
ignorance. Therefore, Cruz as plaintiff, at his own instance, can personally conduct the litigation of Civil Case No. 010410. He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent himself.
The trial court must have been misled by the fact that the petitioner is a law student and must, therefore, be
subject to the conditions of the Law Student Practice Rule. It erred in applying Rule 138-A, when the basis of the petitioners
claim is Section 34 of Rule 138. The former rule provides for conditions when a law student may appear in courts, while
the latter rule allows the appearance of a non-lawyer as a party representing himself.
The conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of Circular No. 19 is misplaced.
The Court never intended to repeal Rule 138 when it released the guidelines for limited law student practice. In fact, it
was intended as an addendum to the instances when a non-lawyer may appear in courts and was incorporated to the
Rules of Court through Rule 138-A.
It may be relevant to recall that, in respect to the constitutional right of an accused to be heard by himself and
counsel,[16] this Court has held that during the trial, the right to counsel cannot be waived.[17] The rationale for this ruling
was articulated in People v. Holgado,[18] where we declared that 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.
The case at bar involves a civil case, with the petitioner as plaintiff therein. The solicitous concern that the
Constitution accords the accused in a criminal prosecution obviously does not obtain in a civil case. Thus, a party litigant
in a civil case, who insists that he can, without a lawyers assistance, effectively undertake the successful pursuit of his
claim, may be given the chance to do so. In this case, petitioner alleges that he is a law student and impliedly asserts that
he has the competence to litigate the case himself.Evidently, he is aware of the perils incident to this decision.
In addition, it was subsequently clarified in Bar Matter 730, that by virtue of Section 34, Rule 138, a law student
may appear as an agent or a friend of a party litigant, without need of the supervision of a lawyer, before inferior
courts. Here, we have a law student who, as party litigant, wishes to represent himself in court. We should grant his wish.
Additionally, however, petitioner contends that the respondent judge committed manifest bias and partiality by
ruling that there is no valid ground for her voluntary inhibition despite her alleged negative demeanor during the pre-trial
when she said: Hay naku, masama yung marunong pa sa Huwes. Ok? Petitioner avers that by denying his motion, the
respondent judge already manifested conduct indicative of arbitrariness and prejudice, causing petitioners and his coplaintiffs loss of faith and confidence in the respondents impartiality.
We do not agree.
It must be noted that because of this incident, the petitioner filed an administrative case[19] against the respondent
for violation of the Canons of Judicial Ethics, which we dismissed for lack of merit on September 15, 2002. We now adopt
the Courts findings of fact in the administrative case and rule that there was no grave abuse of discretion on the part of
Judge Mijares when she did not inhibit herself from the trial of the case.
In a Motion for Inhibition, the movant must prove the ground for bias and prejudice by clear and convincing
evidence to disqualify a judge from participating in a particular trial,[20] as voluntary inhibition is primarily a matter of
conscience and addressed to the sound discretion of the judge. The decision on whether she should inhibit herself must
be based on her rational and logical assessment of the circumstances prevailing in the case before her.[21] Absent clear
and convincing proof of grave abuse of discretion on the part of the judge, this Court will rule in favor of the presumption
that official duty has been regularly performed.
WHEREFORE, the Petition is PARTIALLY GRANTED. The assailed Resolution and Order of the Regional Trial Court,
Branch 108, Pasay City are MODIFIED.Regional Trial Court, Branch 108, Pasay City is DIRECTED to ADMIT the Entry of
Appearance of petitioner in Civil Case No. 01-0410 as a party litigant.
No pronouncement as to costs.
SO ORDERED.
SECOND DIVISION
[G.R. No. 109149. December 21, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO SANTOCILDES, JR. y SIGA-AN, accusedappellant.
DECISION
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 appellants 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 petitioners conviction but acquitted her coaccused. 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 petitioners 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 Attorneys 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 persons 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.
ECOND DIVISION
[G.R. No. 109149. December 21, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO SANTOCILDES, JR. y SIGA-AN, accusedappellant.
DECISION
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 appellants 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 petitioners conviction but acquitted her coaccused. 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 petitioners 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 Attorneys 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 persons 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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23959 November 29, 1971
PHILIPPINE ASSOCIATION OF FREE LABOR UNIONS (PAFLU), ENRIQUE ENTILA & VICTORIANO
TENAZAS petitioners,
vs.
BINALBAGAN ISABELA SUGAR COMPANY, COURT OF INDUSTRIAL RELATIONS, & QUINTIN
MUNING respondents.
Cipriano Cid & Associates for petitioners.
Ceferino Magat and Manuel C. Gonzales for respondent Quintin Muning.
REYES, J.B.L., J.:
May a non-lawyer recover attorney's fees for legal services rendered? This is the issue presented in this
petition for review of an order, dated 12 May 1964, and the en banc resolution, dated 8 December 1964, of the
Court of Industrial Relations, in its Case No. 72-ULP-Iloilo, granting respondent Quintin Muning a non-lawyer,
attorney's fees for professional services in the said case.
The above-named petitioners were complainants in Case No. 72-ULP-Iloilo entitled, "PAFLU et al. vs.
Binalbagan Isabela Sugar Co., et al." After trial, the Court of Industrial Relations rendered a decision, on 29
March 1961, ordering the reinstatement with backwages of complainants Enrique Entila and Victorino
Tenazas. Said decision became final. On 18 October 1963, Cipriano Cid & Associates, counsel of record for
the winning complainants, filed a notice of attorney's lien equivalent to 30% of the total backwages. On 22
November 1963, Atty. Atanacio Pacis also filed a similar notice for a reasonable amount. Complainants Entila
and Tenazas on 3 December 1963, filed a manifestation indicating their non-objection to an award of attorney's
fees for 25% of their backwages, and, on the same day, Quentin Muning filed a "Petition for the Award of
Services Rendered" equivalent to 20% of the backwages. Munings petition was opposed by Cipriano Cid &
Associates the ground that he is not a lawyer.
The records of Case No. 72-ULP-Iloilo show that the charge was filed by Cipriano Cid & Associates through
Atty. Atanacio Pacis. All the hearings were held in Bacolod City and appearances made in behalf of the
complainants were at first by Attorney Pacis and subsequently by respondent Quintin Muning.
On 12 May 1964, the Court of Industrial Relations awarded 25% of the backwages as compensation for
professional services rendered in the case, apportioned as follows:
Attys. Cipriano Cid & Associates ............................................. 10%
Quintin Muning ......................................................................... 10%
Atty. Atanacio Pacis ................................................................. 5%
The award of 10% to Quintin Muning who is not a lawyer according to the order, is sought to be voided in the
present petition.
Respondent Muning moved in this Court to dismiss the present petition on the ground of late filing but his
motion was overruled on 20 January 1965.1 He asked for reconsideration, but, considering that the motion
contained averments that go into the merits of the case, this Court admitted and considered the motion for
reconsideration for all purposes as respondent's answer to the petitioner for review.2 The case was considered
submitted for decision without respondent's brief.3
Applicable to the issue at hand is the principle enunciated in Amalgamated Laborers' Association, et al. vs.
Court of Industrial Relations, et al., L-23467, 27 March 1968,4 that an agreement providing for the division of
attorney's fees, whereby a non-lawyer union president is allowed to share in said fees with lawyers, is
condemned by Canon 34 of Legal Ethics and is immoral and cannot be justified. An award by a court of
attorney's fees is no less immoral in the absence of a contract, as in the present case.
The provision in Section 5(b) of Republic Act No. 875 that —
In the proceeding before the Court or Hearing Examiner thereof, the parties shall not be
required to be represented by legal counsel ...
is no justification for a ruling, that the person representing the party-litigant in the Court of Industrial Relations,
even if he is not a lawyer, is entitled to attorney's fees: for the same section adds that —
it shall be the duty and obligation of the Court or Hearing Officer to examine and cross examine
witnesses on behalf of the parties and to assist in the orderly presentation of evidence.
thus making it clear that the representation should be exclusively entrusted to duly qualified members of the
bar.
The permission for a non-member of the bar to represent or appear or defend in the said court on behalf of a
party-litigant does not by itself entitle the representative to compensation for such representation. For Section
24, Rule 138, of the Rules of Court, providing —
Sec. 24. Compensation of attorney's agreement as to fees. — An attorney shall be entitled to
have and recover from his client no more than a reasonable compensation for his services, ...
imports the existence of an attorney-client relationship as a condition to the recovery of attorney's fees. Such a
relationship cannot exist unless the client's representative in court be a lawyer. Since respondent Muning is not
one, he cannot establish an attorney-client relationship with Enrique Entila and Victorino Tenezas or with
PAFLU, and he cannot, therefore, recover attorney's fees. Certainly public policy demands that legal work in
representation of parties litigant should be entrusted only to those possessing tested qualifications and who are
sworn, to observe the rules and the ethics of the profession, as well as being subject to judicial disciplinary
control for the protection of courts, clients and the public.
On the present issue, the rule in American jurisdictions is persuasive. There, it is stated:
But in practically all jurisdictions statutes have now been enacted prohibiting persons not
licensed or admitted to the bar from practising law, and under statutes of this kind, the great
weight of authority is to the effect that compensation for legal services cannot be recovered by
one who has not been admitted to practice before the court or in the jurisdiction the services
were rendered. 5
No one is entitled to recover compensation for services as an attorney at law unless he has
been duly admitted to practice ... and is an attorney in good standing at the time.6
The reasons are that the ethics of the legal profession should not be violated;7 that acting as an attorney with
authority constitutes contempt of court, which is punishable by fine or imprisonment or both,8 and the law will
not assist a person to reap the fruits or benefit of an act or an act done in violation of law; 9 and that if were to
be allowed to non-lawyers, it would leave the public in hopeless confusion as to whom to consult in case of
necessity and also leave the bar in a chaotic condition, aside from the fact that non-lawyers are not amenable
to disciplinary measures. 10
And the general rule above-stated (referring to non-recovery of attorney's fees by non-lawyers)
cannot be circumvented when the services were purely legal, by seeking to recover as an
"agent" and not as an attorney. 11
The weight of the reasons heretofore stated why a non-lawyer may not be awarded attorney's fees should
suffice to refute the possible argument that appearances by non-lawyers before the Court of Industrial
Relations should be excepted on the ground that said court is a court of special jurisdiction; such special
jurisdiction does not weigh the aforesaid reasons and cannot justify an exception.
The other issue in this case is whether or not a union may appeal an award of attorney's fees which are
deductible from the backpay of some of its members. This issue arose because it was the union PAFLU, alone,
that moved for an extension of time to file the present petition for review; union members Entila and Tenazas
did not ask for extension but they were included as petitioners in the present petition that was subsequently
filed, it being contended that, as to them (Entila and Tenazas), their inclusion in the petition as co-petitioners
was belated.
We hold that a union or legitimate labor organization may appeal an award of attorney's fees which are
deductible from the backpay of its members because such union or labor organization is permitted to institute
an action in the industrial court, 12 on behalf of its members; and the union was organized "for the promotion of
the emloyees' moral, social and economic well-being"; 13 hence, if an award is disadvantageous to its
members, the union may prosecute an appeal as an aggrieved party, under Section 6, Republic Act 875, which
provides:
Sec. 6. Unfair Labor Practice cases — Appeals. — Any person aggrieved by any order of the
Court may appeal to the Supreme Court of the Philippines ...,
since more often than not the individual unionist is not in a position to bear the financial burden of litigations.
Petitioners allege that respondent Muning is engaged in the habitual practice of law before the Court of
Industrial Relations, and many of them like him who are not licensed to practice, registering their appearances
as "representatives" and appearing daily before the said court. If true, this is a serious situation demanding
corrective action that respondent court should actively pursue and enforce by positive action to that purpose.
But since this matter was not brought in issue before the court a quo, it may not be taken up in the present
case. Petitioners, however, may file proper action against the persons alleged to be illegally engaged in the
practice of law.
WHEREFORE, the orders under review are hereby set aside insofar as they awarded 10% of the backwages
as attorney's fees for respondent Quintin Muning. Said orders are affirmed in all other respects. Costs against
respondent Muning.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ.
concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 111474 August 22, 1994
FIVE J TAXI and/or JUAN S. ARMAMENTO, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION, DOMINGO MALDIGAN and GILBERTO
SABSALON, respondents.
Edgardo G. Fernandez for petitioners.
R E SO L U T I O N
REGALADO, J.:
Petitioners Five J Taxi and/or Juan S. Armamento filed this special civil action for certiorari to annul the
decision 1 of respondent National Labor Relations Commission (NLRC) ordering petitioners to pay private
respondents Domingo Maldigan and Gilberto Sabsalon their accumulated deposits and car wash payments,
plus interest thereon at the legal rate from the date of promulgation of judgment to the date of actual payment,
and 10% of the total amount as and for attorney's fees.
We have given due course to this petition for, while to the cynical the de minimis amounts involved should not
impose upon the valuable time of this Court, we find therein a need to clarify some issues the resolution of
which are important to small wage earners such as taxicab drivers. As we have heretofore repeatedly
demonstrated, this Court does not exist only for the rich or the powerful, with their reputed monumental cases
of national impact. It is also the Court of the poor or the underprivileged, with the actual quotidian problems that
beset their individual lives.
Private respondents Domingo Maldigan and Gilberto Sabsalon were hired by the petitioners as taxi
drivers 2 and, as such, they worked for 4 days weekly on a 24-hour shifting schedule. Aside from the daily
"boundary" of P700.00 for air-conditioned taxi or P450.00 for non-air-conditioned taxi, they were also required
to pay P20.00 for car washing, and to further make a P15.00 deposit to answer for any deficiency in their
"boundary," for every actual working day.
In less than 4 months after Maldigan was hired as an extra driver by the petitioners, he already failed to report
for work for unknown reasons. Later, petitioners learned that he was working for "Mine of Gold" Taxi Company.
With respect to Sabsalon, while driving a taxicab of petitioners on September 6, 1983, he was held up by his
armed passenger who took all his money and thereafter stabbed him. He was hospitalized and after his
discharge, he went to his home province to recuperate.
In January, 1987, Sabsalon was re-admitted by petitioners as a taxi driver under the same terms and
conditions as when he was first employed, but his working schedule was made on an "alternative basis," that
is, he drove only every other day. However, on several occasions, he failed to report for work during his
schedule.
On September 22, 1991, Sabsalon failed to remit his "boundary" of P700.00 for the previous day. Also, he
abandoned his taxicab in Makati without fuel refill worth P300.00. Despite repeated requests of petitioners for
him to report for work, he adamantly refused. Afterwards it was revealed that he was driving a taxi for "Bulaklak
Company."
Sometime in 1989, Maldigan requested petitioners for the reimbursement of his daily cash deposits for 2 years,
but herein petitioners told him that not a single centavo was left of his deposits as these were not even enough
to cover the amount spent for the repairs of the taxi he was driving. This was allegedly the practice adopted by
petitioners to recoup the expenses incurred in the repair of their taxicab units. When Maldigan insisted on the
refund of his deposit, petitioners terminated his services. Sabsalon, on his part, claimed that his termination
from employment was effected when he refused to pay for the washing of his taxi seat covers.
On November 27, 1991, private respondents filed a complaint with the Manila Arbitration Office of the National
Labor Relations Commission charging petitioners with illegal dismissal and illegal deductions. That complaint
was dismissed, the labor arbiter holding that it took private respondents two years to file the same and such
unreasonable delay was not consistent with the natural reaction of a person who claimed to be unjustly treated,
hence the filing of the case could be interpreted as a mere afterthought.
Respondent NLRC concurred in said findings, with the observation that private respondents failed to controvert
the evidence showing that Maldigan was employed by "Mine of Gold" Taxi Company from February 10, 1987
to December 10, 1990; that Sabsalon abandoned his taxicab on September 1, 1990; and that they voluntarily
left their jobs for similar employment with other taxi operators. It, accordingly, affirmed the ruling of the labor
arbiter that private respondents' services were not illegally terminated. It, however, modified the decision of the
labor arbiter by ordering petitioners to pay private respondents the awards stated at the beginning of this
resolution.
Petitioners' motion for reconsideration having been denied by the NLRC, this petition is now before us imputing
grave abuse of discretion on the part of said public respondent.
This Court has repeatedly declared that the factual findings of quasi-judicial agencies like the NLRC, which
have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not
only respect but, at times, finality if such findings are supported by substantial evidence. 3 Where, however,
such conclusions are not supported by the evidence, they must be struck down for being whimsical and
capricious and, therefore, arrived at with grave abuse of discretion. 4
Respondent NLRC held that the P15.00 daily deposits made by respondents to defray any shortage in their
"boundary" is covered by the general prohibition in Article 114 of the Labor Code against requiring employees
to make deposits, and that there is no showing that the Secretary of Labor has recognized the same as a
"practice" in the taxi industry. Consequently, the deposits made were illegal and the respondents must be
refunded therefor.
Article 114 of the Labor Code provides as follows:
Art. 114. Deposits for loss or damage. — No employer shall require his worker to make deposits
from which deductions shall be made for the reimbursement of loss of or damage to tools,
materials, or equipment supplied by the employer, except when the employer is engaged in
such trades, occupations or business where the practice of making deposits is a recognized
one, or is necessary or desirable as determined by the Secretary of Labor in appropriate rules
and regulations.
It can be deduced therefrom that the said article provides the rule on deposits for loss or damage to tools,
materials or equipments supplied by the employer. Clearly, the same does not apply to or permit deposits to
defray any deficiency which the taxi driver may incur in the remittance of his "boundary." Also, when private
respondents stopped working for petitioners, the alleged purpose for which petitioners required such
unauthorized deposits no longer existed. In other case, any balance due to private respondents after proper
accounting must be returned to them with legal interest.
However, the unrebutted evidence with regard to the claim of Sabsalon is as follows:
YEAR DEPOSITS SHORTAGES VALES
1987 P 1,403.00 P 567.00 P 1,000.00
1988 720.00 760.00 200.00
1989 686.00 130.00 1,500.00
1990 605.00 570.00
1991 165.00 2,300.00
———— ———— ————
P 3,579.00 P 4,327.00 P 2,700.00
The foregoing accounting shows that from 1987-1991, Sabsalon was able to withdraw his deposits
through vales or he incurred shortages, such that he is even indebted to petitioners in the amount of
P3,448.00. With respect to Maldigan's deposits, nothing was mentioned questioning the same even in the
present petition. We accordingly agree with the recommendation of the Solicitor General that since the
evidence shows that he had not withdrawn the same, he should be reimbursed the amount of his accumulated
cash deposits. 5
On the matter of the car wash payments, the labor arbiter had this to say in his decision: "Anent the issue of
illegal deductions, there is no dispute that as a matter of practice in the taxi industry, after a tour of duty, it is
incumbent upon the driver to restore the unit he has driven to the same clean condition when he took it out,
and as claimed by the respondents (petitioners in the present case), complainant(s) (private respondents
herein) were made to shoulder the expenses for washing, the amount doled out was paid directly to the person
who washed the unit, thus we find nothing illegal in this practice, much more (sic) to consider the amount paid
by the driver as illegal deduction in the context of the law." 6 (Words in parentheses added.)
Consequently, private respondents are not entitled to the refund of the P20.00 car wash payments they made.
It will be noted that there was nothing to prevent private respondents from cleaning the taxi units themselves, if
they wanted to save their P20.00. Also, as the Solicitor General correctly noted, car washing after a tour of
duty is a practice in the taxi industry, and is, in fact, dictated by fair play.
On the last issue of attorney's fees or service fees for private respondents' authorized representative, Article
222 of the Labor Code, as amended by Section 3 of Presidential Decree No. 1691, states that non-lawyers
may appear before the NLRC or any labor arbiter only (1) if they represent themselves, or (2) if they represent
their organization or the members thereof. While it may be true that Guillermo H. Pulia was the authorized
representative of private respondents, he was a non-lawyer who did not fall in either of the foregoing
categories. Hence, by clear mandate of the law, he is not entitled to attorney's fees.
Furthermore, the statutory rule that an attorney shall be entitled to have and recover from his client a
reasonable compensation for his services 7 necessarily imports the existence of an attorney-client relationship
as a condition for the recovery of attorney's fees, and such relationship cannot exist unless the client's
representative is a lawyer. 8
WHEREFORE, the questioned judgment of respondent National Labor Relations Commission is hereby
MODIFIED by deleting the awards for reimbursement of car wash expenses and attorney's fees and directing
said public respondent to order and effect the computation and payment by petitioners of the refund for private
respondent Domingo Maldigan's deposits, plus legal interest thereon from the date of finality of this resolution
up to the date of actual payment thereof.
SO ORDERED.
SECOND DIVISION
[G.R. No. 126625. September 23, 1997]
KANLAON CONSTRUCTION ENTERPRISES CO., INC., petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION, 5TH DIVISION, and BENJAMIN RELUYA, JR., EDGARDO GENAYAS, ERNESTO
CANETE, PROTACIO ROSALES, NESTOR BENOYA, RODOLFO GONGOB, DARIO BINOYA,
BENJAMIN BASMAYOR, ABELARDO SACURA, FLORENCIO SACURA, ISABELO MIRA, NEMESIO
LACAR, JOSEPH CABIGKIS, RODRIGO CILLON, VIRGILIO QUIZON, GUARINO EVANGELISTA,
ALEJANDRO GATA, BENEDICTO CALAGO, NILO GATA, DIONISIO PERMACIO, JUANITOSALUD,
ADOR RIMPO, FELIPE ORAEZ, JULIETO TEJADA, TEOTIMO LACIO, ONOFRE QUIZON, RUDY
ALVAREZ, CRESENCIO FLORES, ALFREDO PERMACIO, CRESENCIO ALVIAR, HERNANI
SURILA, DIOSDADO SOLON, CENON ALBURO, ZACARIAS ORTIZ, EUSEBIO BUSTILLO,
GREGORIO BAGO, JERRY VARGAS, EDUARDO BUENO, PASCUAL HUDAYA, ROGELIO NIETES,
and REYNALDO NIETES, respondents.
DECISION
PUNO, J.:
In this petition for certiorari, petitioner Kanlaon Construction Enterprises Co., Inc. seeks to annul the decision
of respondent National Labor Relations Commission, Fifth Division and remand the cases to the Arbitration
Branch for a retrial on the merits.
Petitioner is a domestic corporation engaged in the construction business nationwide with principal office at
No. 11 Yakan St., La Vista Subdivision, Quezon City. In 1988, petitioner was contracted by the National Steel
Corporation to construct residential houses for its plant employees in Steeltown, Sta. Elena, Iligan City. Private
respondents were hired by petitioner as laborers in the project and worked under the supervision of Engineers
Paulino Estacio and Mario Dulatre. In 1989, the project neared its completion and petitioner started terminating
the services of private respondents and its other employees.
In 1990, private respondents filed separate complaints against petitioner before Sub-Regional Arbitration
Branch XII, Iligan City. Numbering forty-one (41) in all, they claimed that petitioner paid them wages below the
minimum and sought payment of their salary differentials and thirteenth-month pay. Engineers Estacio and
Dulatre were named co-respondents.
Some of the cases were assigned to Labor Arbiter Guardson A. Siao while the others were assigned to
Labor Arbiter Nicodemus G. Palangan. Summonses and notices of preliminary conference were issued and
served on the two engineers and petitioner through Engineer Estacio. The preliminary conferences before the
labor arbiters were attended by Engineers Estacio and Dulatre and private respondents. At the conference of
June 11, 1990 before Arbiter Siao, Engineer Estacio admitted petitioner's liability to private respondents and
agreed to pay their wage differentials and thirteenth-month pay on June 19, 1990. As a result of this agreement,
Engineer Estacio allegedly waived petitioner's right to file its position paper. [1] Private respondents declared that
they, too, were dispensing with their position papers and were adopting their complaints as their position paper. [2]
On June 19, 1990, Engineer Estacio appeared but requested for another week to settle the claims. Labor
Arbiter Siao denied this request. On June 21, 1990, Arbiter Siao issued an order granting the complaint and
directing petitioner to pay private respondents' claims. Arbiter Siao held:
"x x x.
"Considering the length of time that has elapsed since these cases were filed, and what the complainants might think as to
how this branch operates and/or conducts its proceedings as they are now restless, this Arbiter has no other alternative or
recourse but to order the respondent to pay the claims of the complainants, subject of course to the computation of the
Fiscal Examiner II of this Branch pursuant to the oral manifestation of respondent. The Supreme Court ruled: 'Contracts
though orally made are binding on the parties.' (Lao Sok v. Sabaysabay, 138 SCRA 134).
"Similarly, this Branch would present in passing that 'a court cannot decide a case without facts either admitted or agreed
upon by the parties or proved by evidence.' (Yu Chin Piao v. Lim Tuaco, 33 Phil. 92;Benedicto v. Yulo, 26 Phil. 160),
"WHEREFORE, premises considered, the respondent is hereby ordered to pay the individual claims of the above-named
complainants representing their wage differentials within ten (10) days from receipt of this Order.
"The Fiscal Examiner II of this Branch is likewise hereby ordered to compute the individual claims of the herein
complainants.
"SO ORDERED." [3]
On June 29, 1990, Arbiter Palangan issued a similar order, thus:
"When the above-entitled cases were called for hearing on June 19, 1990 at 10:00 a.m. respondent thru their representative
manifested that they were willing to pay the claims of the complainants and promised to pay the same on June 28, 1990 at
10:30 a.m.
"However, when these cases were called purposely to materialize the promise of the respondent, the latter failed to appear
without any valid reason.
"Considering therefore that the respondent has already admitted the claims of the complainants, we believe that the issues
raised herein have become moot and academic.
"WHEREFORE, premises considered, the above-entitled cases are hereby ordered Closed and Terminated, however, the
respondent is hereby ordered to pay the complainants their differential pay and 13th-month pay within a period of ten (10)
days from receipt hereof based on the employment record on file with the respondent.
"SO ORDERED." [4]
Petitioner appealed to respondent National Labor Relations Commission. It alleged that it was denied due
process and that Engineers Estacio and Dulatre had no authority to represent and bind petitioner. Petitioner's
appeal was filed by one Atty. Arthur Abundiente.
In a decision dated April 27, 1992, respondent Commission affirmed the orders of the Arbiters.
Petitioner interposed this petition alleging that the decision of respondent Commission was rendered without
jurisdiction and in grave abuse of discretion. Petitioner claims that:
"I
"THE QUESTIONED DECISION RENDERED BY THE HONORABLE COMMISSION IS A NULLITY, IT HAVING
BEEN ISSUED WITHOUT JURISDICTION;
II
"PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION GRAVELY ABUSED ITS
DISCRETION IN ARBITRARILY, CAPRICIOUSLY AND WHIMSICALLY MAKING THE FOLLOWING
CONCLUSIONS BASED NOT ON FACTS AND EVIDENCE BUT ON SPECULATION, SURMISE AND
CONJECTURE:
A. Petitioner was deprived of the constitutional right to due process of law when it was adjudged by the NLRC liable
without trial on the merits and without its knowledge;
B. The NLRC erroneously, patently and unreasonably interpreted the principle that the NLRC and its Arbitration Branch
are not strictly bound by the rules of evidence;
C. There is no legal nor actual basis in the NLRC's ruling that petitioner is already in estoppel to disclaim the authority of
its alleged representatives.
D. The NLRC committed manifest error in relying merely on private respondents unsubstantiated complaints to hold
petitioner liable for damages." [5]
In brief, petitioner alleges that the decisions of the labor arbiters and respondent Commission are void for
the following reasons: (1) there was no valid service of summons; (2) Engineers Estacio and Dulatre and Atty.
Abundiente had no authority to appear and represent petitioner at the hearings before the arbiters and on appeal
to respondent Commission; (3) the decisions of the arbiters and respondent Commission are based on
unsubstantiated and self-serving evidence and were rendered in violation of petitioner's right to due process.
Service of summons in cases filed before the labor arbiters is governed by Sections 4 and 5 of Rule IV of
the New Rules of Procedure of the NLRC. They provide:
"Section 4. Service of Notices and Resolutions.-- (a) Notices or summons and copies of orders, resolutions or decisions
shall be served on the parties to the case personally by the bailiff or duly authorized public officer within three (3) days
from receipt thereof or by registered mail; Provided that where a party is represented by counsel or authorized
representative, service shall be made on such counsel or authorized representative; provided further that in cases of
decision and final awards, copies thereof shall be served on both the parties and their counsel; provided finally, that in
case where the parties are so numerous, service shall be made on counsel and upon such number of complainants as may
be practicable, which shall be considered substantial compliance with Article 224 (a) of the Labor Code, as amended.
"x x x.
"Section 5. Proof and completeness of service.-- The return is prima facie proof of the facts indicated therein. Service by
registered mail is complete upon receipt by the addressee or his agent. x x x."
Under the NLRC Rules of Procedure, summons on the respondent shall be served personally or by registered
mail on the party himself. If the party is represented by counsel or any other authorized representative or agent,
summons shall be served on such person.
It has been established that petitioner is a private domestic corporation with principal address in Quezon
City. The complaints against petitioner were filed in Iligan City and summonsestherefore served on Engineer
Estacio in Iligan City. The question now is whether Engineer Estacio was an agent and authorized representative
of petitioner.
To determine the scope or meaning of the term "authorized representative" or "agent" of parties on whom
summons may be served, the provisions of the Revised Rules of Court may be resorted to. [6]
Under the Revised Rules of Court, [7] service upon a private domestic corporation or partnership must be
made upon its officers, such as the president, manager, secretary, cashier, agent, or any of its directors. These
persons are deemed so integrated with the corporation that they know their responsibilities and immediately
discern what to do with any legal papers served on them. [8]
In the case at bar, Engineer Estacio, assisted by Engineer Dulatre, managed and supervised the
construction project. [9] According to the Solicitor General and private respondents, Engineer Estacio attended
to the project in Iligan City and supervised the work of the employees thereat. As manager, he had sufficient
responsibility and discretion to realize the importance of the legal papers served on him and to relay the same
to the president or other responsible officer of petitioner. Summons for petitioner was therefore validly served on
him.
Engineer Estacio's appearance before the labor arbiters and his promise to settle the claims of private
respondents is another matter.
The general rule is that only lawyers are allowed to appear before the labor arbiter and respondent
Commission in cases before them. The Labor Code and the New Rules of Procedure of the NLRC, nonetheless,
lists three (3) exceptions to the rule, viz:
"Section 6. Appearances.-- x x x.
"A non-lawyer may appear before the Commission or any Labor Arbiter only if:
"(a) he represents himself as party to the case;
"(b) he represents the organization or its members, provided that he shall be made to present written proof that he is
properly authorized; or
"(c) he is a duly-accredited member of any legal aid office duly recognized by the Department of Justice or the Integrated
Bar of the Philippines in cases referred thereto by the latter. x x x." [10]
A non-lawyer may appear before the labor arbiters and the NLRC only if: (a) he represents himself as a
party to the case; (b) he represents an organization or its members, with written authorization from them; or (c)
he is a duly accredited member of any legal aid office duly recognized by the Department of Justice or the
Integrated Bar of the Philippines in cases referred to by the latter. [11]
Engineers Estacio and Dulatre were not lawyers. Neither were they duly-accredited members of a legal aid
office. Their appearance before the labor arbiters in their capacity as parties to the cases was authorized under
the first exception to the rule. However, their appearance on behalf of petitioner required written proof of
authorization. It was incumbent upon the arbiters to ascertain this authority especially since both engineers were
named co-respondents in the cases before the arbiters. Absent this authority, whatever statements and
declarations Engineer Estacio made before the arbiters could not bind petitioner.
The appearance of Atty. Arthur Abundiente in the cases appealed to respondent Commission did not cure
Engineer Estacio's representation. Atty. Abundiente, in the first place, had no authority to appear before the
respondent Commission. The appellants' brief he filed was verified by him, not by petitioner. [12] Moreover,
respondent Commission did not delve into the merits of Atty. Abundiente's appeal and determine whether
Engineer Estacio was duly authorized to make such promise. It dismissed the appeal on the ground that notices
were served on petitioner and that the latter was estopped from denying its promise to pay.
Nevertheless, even assuming that Engineer Estacio and Atty. Abundiente were authorized to appear as
representatives of petitioner, they could bind the latter only in procedural matters before the arbiters and
respondent Commission. Petitioner's liability arose from Engineer Estacio's alleged promise to pay. A promise
to pay amounts to an offer to compromise and requires a special power of attorney or the express consent of
petitioner. The authority to compromise cannot be lightly presumed and should be duly established by
evidence. [13] This is explicit from Section 7 of Rule III of the NLRC Rules of Procedure, viz:
"Section 7. Authority to bind party.-- Attorneys and other representatives of parties shall have authority to bind their
clients in all matters of procedure; but they cannot, without a special power of attorney or express consent, enter into a
compromise agreement with the opposing party in full or partial discharge of a client's claim."
The promise to pay allegedly made by Engineer Estacio was made at the preliminary conference and
constituted an offer to settle the case amicably. The promise to pay could not be presumed to be a single
unilateral act, contrary to the claim of the Solicitor General. [14] A defendant's promise to pay and settle the
plaintiff's claims ordinarily requires a reciprocal obligation from the plaintiff to withdraw the complaint and
discharge the defendant from liability. [15] In effect, the offer to pay was an offer to compromise the cases.
In civil cases, an offer to compromise is not an admission of any liability, and is not admissible in evidence
against the offeror. [16] If this rule were otherwise, no attempt to settle litigation could safely be
made. [17] Settlement of disputes by way of compromise is an accepted and desirable practice in courts of law
and administrative tribunals. [18] In fact, the Labor Code mandates the labor arbiter to exert all efforts to enable
the parties to arrive at an amicable settlement of the dispute within his jurisdiction on or before the first hearing. [19]
Clearly, respondent Commission gravely abused its discretion in affirming the decisions of the labor arbiters
which were not only based on unauthorized representations, but were also made in violation of petitioner's right
to due process.
Section 3 of Rule V of the NLRC Rules of Procedure provides:
"Section 3. Submission of Position Papers/Memorandum.-- Should the parties fail to agree upon an amicable settlement,
in whole or in part, during the conferences, the Labor Arbiter shall issue an order stating therein the matters taken up and
agreed upon during the conferences and directing the parties to simultaneously file their respective verified position
papers.
"x x x."
After petitioner's alleged representative failed to pay the workers' claims as promised, Labor Arbiters Siao
and Palangan did not order the parties to file their respective position papers.The arbiters forthwith rendered a
decision on the merits without at least requiring private respondents to substantiate their complaints. The parties
may have earlier waived their right to fileposition papers but petitioner's waiver was made by Engineer Estacio
on the premise that petitioner shall have paid and settled the claims of private respondents at the scheduled
conference. Since petitioner reneged on its "promise," there was a failure to settle the case amicably. This should
have prompted the arbiters to order the parties to file their position papers.
Article 221 of the Labor Code mandates that in cases before labor arbiters and respondent Commission,
they "shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and
without regard to technicalities of law or procedure, all in the interest of due process." The rule that respondent
Commission and the Labor Arbiters are not bound by technical rules of evidence and procedure should not be
interpreted so as to dispense with the fundamental and essential right of due process. [20] And this right is
satisfied, at the very least, ' when the parties are given the opportunity to submit position papers. [21] Labor
Arbiters Siao and Palangan erred in dispensing with this requirement.
Indeed, the labor arbiters and the NLRC must not, at the expense of due process, be the first to arbitrarily
disregard specific provisions of the Rules which are precisely intended to assist the parties in obtaining the just,
expeditious and inexpensive settlement of labor disputes. [22]
IN VIEW WHEREOF, the petition for certiorari is granted. The decision of the National Labor Relations
Commission, Fifth Division, is annulled and set aside and the case is remanded to the Regional Arbitration
Branch, Iligan City for further proceedings.
SO ORDERED.
THIRD DIVISION
REY J. VARGAS AND EDUARDO A.
PANES, JR.,
Complainants,
- versus -
A.C. No. 8096
Present:
CARPIO MORALES, J.,
Chairperson,
BRION,
BERSAMIN,
ABAD, and
VILLARAMA, JR., JJ.
ATTY. MICHAEL A. IGNES, ATTY.
LEONARD BUENTIPO MANN, ATTY.
RODOLFO U. VIAJAR, JR., AND ATTY. Promulgated:
JOHN RANGAL D. NADUA,
Respondents.
July 5, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
VILLARAMA, JR., J.:
Before the Court is a petition for review of Resolution No. XVIII-2008-335[1] passed on July 17, 2008 by the Board of
Governors of the Integrated Bar of the Philippines (IBP) in CBD Case No. 07-1953. The IBP Board of Governors dismissed
the disbarment case filed by the complainants against the respondents.
The facts and proceedings antecedent to this case are as follows:
Koronadal Water District (KWD), a government-owned and controlled corporation (GOCC), hired respondent Atty.
Michael A. Ignes as private legal counsel for one (1) year effective April 17, 2006.[2] The Office of the Government
Corporate Counsel (OGCC) and the Commission on Audit (COA) gave their consent to the employment of Atty.
Ignes.[3] However, controversy later erupted when two (2) different groups, herein referred to as the Dela Pea board and
Yaphockun board, laid claim as the legitimate Board of Directors of KWD.
On December 28, 2006, the members of the Dela Pea board filed Civil Case No. 1793[4] for Injunction and Damages,
seeking to annul the appointment of two (2) directors, Joselito T. Reyes and Carlito Y. Uy, who will allegedly connive with
Director Allan D. Yaphockun whose hostility to the present Board of Directors, the Dela Pea board, is supposedly of public
knowledge.
On January 18, 2007, the Dela Pea board also adopted Resolution No. 009[5] appointing respondents Atty. Rodolfo U. Viajar,
Jr. and Atty. Leonard Buentipo Mann as private collaborating counsels for all cases of KWD and its Board of Directors,
under the direct supervision and control of Atty. Ignes.
Subsequently, on February 9, 2007, Attys. Ignes, Viajar, Jr. and Mann filed SCA Case No. 50-24 for Indirect Contempt of
Court[6] entitled Koronadal Water District (KWD), represented herein by its General Manager, Eleanor Pimentel-Gomba
v. Efren V. Cabucay, et al. On February 19, 2007, they also filed Civil Case No. 1799 for Injunction and
Damages[7] entitled Koronadal Water District (KWD), represented herein by its General Manager, & Eleanor PimentelGomba v. Rey J. Vargas. On March 9, 2007, KWD and Eleanor Pimentel-Gomba filed a supplemental complaint[8] in Civil
Case No. 1799.
Meanwhile, in Contract Review No. 079[9] dated February 16, 2007, the OGCC had approved the retainership contract of
Atty. Benjamin B. Cuanan as new legal counsel of KWD and stated that the retainership contract of Atty. Ignes had expired
on January 14, 2007.
In its letter[10] dated March 2, 2007, the OGCC also addressed Eleanor P. Gombas insistence that the retainership contract
of Atty. Ignes will expire on April 17, 2007. The OGCC stated that as stipulated, the KWD or OGCC may terminate the
contract anytime without need of judicial action; that OGCCs grant of authority to private counsels is a privilege
withdrawable under justifiable circumstances; and that the termination of Atty. Igness contract was justified by the fact that
the Local Water Utilities Administration had confirmed the Yaphockun board as the new Board of Directors of KWD and
that said board had terminated Atty. Igness services and requested to hire another counsel.
Alleging that respondents acted as counsel for KWD without legal authority, complainants filed a disbarment
complaint[11] against the respondents before the IBP Commission on Bar Discipline (CBD), docketed as CBD Case No. 071953. Complainants alleged that respondents filed SCA Case No. 50-24 and Civil Case No. 1799 as counsels of KWD
without legal authority. They likewise stated in their position paper[12] that Atty. Ignes continued representing KWD even
after the OGCC had confirmed the expiration of Atty. Igness contract in its April 4, 2007 manifestation/motion [13] in Civil
Case No. 1796-25 entitled Koronadal Water District (KWD), represented herein by its General Manager, Eleanor Pimentel
Gomba v. Supreme Investigative and Security Agency, represented by its Manager Efren Y. Cabucay.
In his defense,[14] Atty. Mann stated that he and his fellow respondents can validly represent KWD until April 17, 2007 since
Atty. Ignes was not notified of his contracts pre-termination. Atty. Mann also stated that he stopped representing KWD
after April 17, 2007 in deference to the OGCCs stand. Attys. Ignes, Viajar, Jr. and Nadua echoed Atty. Manns defense.[15]
On March 10, 2008, complainants filed a manifestation[16] before the IBP with the following attachments: (1) the transcript
of stenographic notes taken on January 28, 2008 in Civil Case No. 1799, and (2) the notice of appeal dated February 28,
2008 of the January 7, 2008 Order dismissing Civil Case No. 1799. Aforesaid transcript showed that Atty. Ignes appeared
as counsel of KWD and Ms. Gomba. He also signed the notice of appeal.
In his report and recommendation,[17] the Investigating Commissioner recommended that the charge against Atty. Ignes be
dismissed for lack of merit. The Investigating Commissioner held that Atty. Ignes had valid authority as counsel of KWD
for one (1) year, from April 2006 to April 2007, and he was unaware of the pre-termination of his contract when he filed
pleadings in SCA Case No. 50-24 and Civil Case No. 1799 in February and March 2007.
As to Attys. Viajar, Jr., Mann and Nadua, the Investigating Commissioner recommended that they be fined P5,000 each for
appearing as attorneys for a party without authority to do so, per Santayana v. Alampay.[18] The Investigating Commissioner
found that they failed to secure the conformity of the OGCC and COA to their engagement as collaborating counsels for
KWD.
As aforesaid, the IBP Board of Governors reversed the recommendation of the Investigating Commissioner and dismissed
the case for lack of merit.
Hence, the present petition.
Complainants contend that the IBP Board of Governors erred in dismissing the case because respondents had no
authority from the OGCC to file the complaints and appear as counsels of KWD in Civil Case No. 1799, SCA Case No. 5024 and Civil Case No. 1796-25. Complainants point out that the retainership contract of Atty. Ignes had expired on January
14, 2007; that the Notice of Appeal filed by Atty. Ignes, et al. in Civil Case No. 1799 was denied per Order dated April 8,
2008 of the Regional Trial Court (RTC) for being filed by one not duly authorized by law; and that the authority of Attys.
Viajar, Jr. and Mann as collaborating counsels is infirm since Resolution No. 009 of the Dela Pea board lacks the conformity
of the OGCC. As a consequence, according to complainants, respondents are liable for willfully appearing as attorneys for
a party to a case without authority to do so.
In his comment, Atty. Ignes admits that their authority to represent KWD had expired on April 17, 2007, but he and his
fellow respondents stopped representing KWD after that date. He submits that they are not guilty of appearing as counsels
without authority. In their comment, Attys. Viajar, Jr. and Nadua propound similar arguments. They also say that their fees
were paid from private funds of the members of the Dela Pea board and KWD personnel who might need legal
representation, not from the public coffers of KWD. In his own comment, Atty. Mann submits similar arguments.
After a careful study of the case and the parties submissions, we find respondents administratively liable.
At the outset, we note that the parties do not dispute the need for OGCC and COA conformity if a GOCC hires private
lawyers. Nonetheless, we shall briefly recall the legal basis of this rule. Under Section 10, Chapter 3, Title III, Book IV of
the Administrative Code of 1987, it is the OGCC which shall act as the principal law office of all GOCCs. And Section 3
of Memorandum Circular No. 9,[19] issued by President Estrada on August 27, 1998, enjoins GOCCs to refrain from hiring
private lawyers or law firms to handle their cases and legal matters. But the same Section 3 provides that in exceptional
cases, the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the case
may be, and the written concurrence of the COA shall first be secured before the hiring or employment of a private lawyer
or law firm. In Phividec Industrial Authority v. Capitol Steel Corporation,[20] we listed three (3) indispensable conditions
before a GOCC can hire a private lawyer: (1) private counsel can only be hired in exceptional cases; (2) the GOCC must
first secure the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the
case may be; and (3) the written concurrence of the COA must also be secured.
In the case of respondents, do they have valid authority to appear as counsels of KWD?
We find that Attys. Nadua, Viajar, Jr. and Mann had no valid authority to appear as collaborating counsels of KWD in SCA
Case No. 50-24 and Civil Case No. 1799. Nothing in the records shows that Atty. Nadua was engaged by KWD as
collaborating counsel. While the 4th Whereas Clause of Resolution No. 009 partly states that he and Atty. Ignes presently
stand as KWD legal counsels, there is no proof that the OGCC and COA approved Atty. Naduas engagement as legal
counsel or collaborating counsel. Insofar as Attys. Viajar, Jr. and Mann are concerned, their appointment as collaborating
counsels of KWD under Resolution No. 009 has no approval from the OGCC and COA.
Attys. Nadua, Viajar, Jr. and Mann are in the same situation as the private counsel of Phividec Industrial Authority
in Phividec. In that case, we also ruled that said private counsel of Phividec Industrial Authority, a GOCC, had no authority
to file the expropriation case in Phividecs behalf considering that the requirements set by Memorandum Circular No. 9 were
not complied with.[21] Thus, Resolution No. 009 did not grant authority to Attys. Nadua, Viajar, Jr. and Mann to act as
collaborating counsels of KWD. That Atty. Ignes was not notified of the pre-termination of his own retainership contract
cannot validate an inexistent authority of Attys. Nadua, Viajar, Jr. and Mann as collaborating counsels.
In the case of Atty. Ignes, he also appeared as counsel of KWD without authority, after his authority as its counsel had
expired. True, the OGCC and COA approved his retainership contract for one (1) year effective April 17, 2006. But even if
we assume as true that he was not notified of the pre-termination of his contract, the records still disprove his claim that he
stopped representing KWD after April 17, 2007.
Atty. Ignes offered no rebuttal to the verified manifestation of complainants filed with the IBP on March 10, 2008. Attached
therein was the transcript of stenographic notes[22]in Civil Case No. 1799 taken on January 28, 2008 when Atty. Ignes
argued the extremely urgent motion for the immediate return of the facilities of the KWD to the KWD Arellano Office. The
RTC was compelled to ask him why he seeks the return of KWD properties if he filed the motion as counsel of Ms.
Gomba. When the RTC noted that KWD does not appear to be a party to the motion, Atty. Ignes said that KWD is
represented by Ms. Gomba per the caption of the case. Atty. Ignes also manifested that they will file a motion for
reconsideration of the orders dismissing Civil Case No. 1799 and Civil Case No. 1793. The RTC ruled that it will not accept
any motion for reconsideration in behalf of KWD unless he is authorized by the OGCC, but Atty. Ignes later filed a notice
of appeal[23] dated February 28, 2008, in Civil Case No. 1799. As the notice of appeal signed by Atty. Ignes was filed by
one (1) not duly authorized by law, the RTC, in its Order[24] dated April 8, 2008, denied due course to said notice of appeal.
As we see it, Atty. Ignes portrayed that his appearance on January 28, 2008 was merely as counsel of Ms. Gomba. He
indicted himself, however, when he said that Ms. Gomba represents KWD per the case title. In fact, the extremely urgent
motion sought the return of the facilities of KWD to its Arellano Office. Clearly, Atty. Ignes filed and argued a motion with
the interest of KWD in mind. The notice of appeal in Civil Case No. 1799 further validates that Atty. Ignes still appeared
as counsel of KWD after his authority as counsel had expired. This fact was not lost on the RTC in denying due course to
the notice of appeal.
Now did respondents willfully appear as counsels of KWD without authority?
The following circumstances convince us that, indeed, respondents willfully and deliberately appeared as counsels of KWD
without authority. One, respondents have admitted the existence of Memorandum Circular No. 9 and professed that they
are aware of our ruling in Phividec.[25] Thus, we entertain no doubt that they have full grasp of our ruling therein that there
are indispensable conditions before a GOCC can hire private counsel and that for non-compliance with the requirements set
by Memorandum Circular No. 9, the private counsel would have no authority to file a case in behalf of a GOCC. Still,
respondents acted as counsels of KWD without complying with what the rule requires. They signed pleadings as counsels
of KWD. They presented themselves voluntarily, on their own volition, as counsels of KWD even if they had no valid
authority to do so.
Two, despite the question on respondents authority as counsels of KWD which question was actually raised earlier in Civil
Case No. 1799 by virtue of an urgent motion to disqualify KWDs counsels[26] dated February 21, 2007 and during the
hearing on February 23, 2007[27] respondents still filed the supplemental complaint in the case on March 9, 2007. And
despite the pendency of this case before the IBP, Atty. Ignes had to be reminded by the RTC that he needs OGCC authority
to file an intended motion for reconsideration in behalf of KWD.
With the grain of evidence before us, we do not believe that respondents are innocent of the charge even if they insist that
the professional fees of Attys. Nadua, Viajar, Jr. and Mann, as collaborating counsels, were paid not from the public coffers
of KWD. To be sure, the facts were clear that they appeared as counsels of KWD without authority, and not merely as
counsels of the members of the Dela Pea board and KWD personnel in their private suits.
Consequently, for respondents willful appearance as counsels of KWD without authority to do so, there is a valid ground to
impose disciplinary action against them. Under Section 27, Rule 138 of the Rules of Court, a member of the bar may be
disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or
for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any
lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority
to do so.
Disbarment, however, is the most severe form of disciplinary sanction, and, as such, the power to disbar must always be
exercised with great caution, and should be imposed only for the most imperative reasons and in clear cases of misconduct
affecting the standing and moral character of the lawyer as an officer of the court and member of the bar.Accordingly,
disbarment should not be decreed where any punishment less severe such as a reprimand, suspension or fine, would
accomplish the end desired.[28] In Santayana,[29] we imposed a fine of P5,000 on the respondent for willfully appearing as
an attorney for a party to a case without authority to do so. The respondent therein also appeared as private counsel of the
National Electrification Administration, a GOCC, without any approval from the OGCC and COA.
Conformably with Santayana, we impose a fine of P5,000 on each respondent.
On another matter, we note that respondents stopped short of fully narrating what had happened after the RTC issued four
(4) orders on March 24, 2007 and on April 13, 2007 in Civil Case No. 1799.[30] As willingly revealed by complainants, all
four (4) orders were nullified by the Court of Appeals.[31] We are compelled to issue a reminder that our Code of Professional
Responsibility requires lawyers, like respondents, to always show candor and good faith to the courts. [32]
WHEREFORE, the petition is GRANTED. The assailed Resolution No. XVIII-2008-335 passed on July 17, 2008 by the
IBP Board of Governors in CBD Case No. 07-1953 is REVERSED and SET ASIDE.
Respondents Attys. Michael A. Ignes, Leonard Buentipo Mann, Rodolfo U. Viajar, Jr., and John Rangal D. Nadua are
found GUILTY of willfully appearing as attorneys for a party to a case without authority to do so and FINED P5,000 each,
payable to this Court within ten (10) days from notice of this Resolution. They are STERNLY WARNED that a similar
offense in the future will be dealt with more severely.
Let a copy of this Resolution be attached to respondents personal records in the Office of the Bar Confidant.
SO ORDERED.
THIRD DIVISION
SPOUSES CONSTANTE AGBULOS AND ZENAIDA
PADILLA AGBULOS,
G.R. No. 176530
Petitioners,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus -
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.
NICASIO GUTIERREZ, JOSEFA GUTIERREZ and
ELENA G. GARCIA,
Respondents.
Promulgated:
June 16, 2009
x-----------------------------------------------------------------------------------------x
RESOLUTION
NACHURA, J.:
This petition for review on certiorari seeks the review of the Decision[1] of the Court of Appeals (CA) dated
February 6, 2007 in CAG.R. CV No. 83994 which set aside the dismissal of a complaint for declaration of nullity of contract,
cancellation of title, reconveyance and damages.
The case stems from the following antecedents:
On October 16, 1997, respondents, Dr. Nicasio G. Gutierrez, Josefa Gutierrez de Mendoza and Elena G. Garcia,
through their counsel, Atty. Adriano B. Magbitang, filed with the Regional Trial Court (RTC) of Gapan, Nueva Ecija, a
complaint against petitioners, spouses Constante Agbulos and Zenaida Padilla Agbulos, for declaration of nullity of
contract, cancellation of title, reconveyance and damages. The complaint alleged that respondents inherited from their
father, Maximo Gutierrez, an eight-hectare parcel of land located in Callos, Penaranda, Nueva Ecija, covered by Transfer
Certificate of Title (TCT) No. NT-123790 in the name of Maximo Gutierrez. Through fraud and deceit, petitioners succeeded
in making it appear that Maximo Gutierrez executed a Deed of Sale on July 21, 1978 when, in truth, he died on April 25,
1977. As a result, TCT No. NT-123790 was cancelled and a new one, TCT No. NT-188664, was issued in the name of
petitioners. Based on the notation at the back of the certificate of title, portions of the property were brought under the
Comprehensive Agrarian Reform Program (CARP) and awarded to Lorna Padilla, Elenita Nuega and Suzette Nuega who
were issued Certificates of Land Ownership Award (CLOAs).
In their defense, petitioners averred that respondents were not the real parties in interest, that the Deed of Sale
was regularly executed before a notary public, that they were possessors in good faith, and that the action had prescribed.
On the day set for the presentation of the respondents (plaintiffs) evidence, petitioners filed a Motion to Dismiss,
assailing the jurisdiction of the RTC over the subject matter of the case. Petitioners contended that the Department of
Agrarian Reform Adjudication Board (DARAB), not the RTC, had jurisdiction since the subject land was covered by the
CARP, and CLOAs had been awarded to tenants. Respondents opposed the motion, arguing that the motion had been filed
beyond the period for filing an Answer, that the RTC had jurisdiction over the case based on the allegations in the
complaint, and that the DARAB had no jurisdiction since the parties had no tenancy relationship.
In an Order[2] dated October 24, 2002, the RTC granted the petitioners motion and dismissed the complaint for
lack of jurisdiction. The RTC held that the DARAB had jurisdiction, since the subject property was under the CARP, some
portions of it were covered by registered CLOAs, and there was prima facie showing of tenancy. [3]
Respondents filed a motion for reconsideration. On November 13, 2003, the RTC denied the motion.[4]
Atty. Magbitang filed a Notice of Appeal[5] with the RTC, which gave due course to the same.[6] The records reveal
that on December 15, 2003, respondent Elena G. Garcia wrote a letter to Judge Arturo M. Bernardo, Acting Judge of RTC
Gapan, Branch 87, stating that they were surprised to receive a communication from the court informing them that their
notice of appeal was ready for disposition. She also stated in the letter that there was no formal agreement with Atty.
Magbitang as to whether they would pursue an appeal with the CA, because one of the plaintiffs was still in America.[7]
On February 6, 2007, the CA rendered a Decision in favor of respondents. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, the appeal is hereby GRANTED and the assailed Order dated
October 24, 2002 issued by the Regional Trial Court (RTC) of Gapan, Nueva Ecija, Branch 87, is
REVERSED and SET ASIDE. Accordingly, the subject complaint is
reinstated and the records of the case is (sic) hereby remanded to the RTC for further proceedings.
SO ORDERED.[8]
The CA concluded that the dispute between the parties was purely civil, not agrarian, in nature. According to the
CA, the allegations in the complaint revealed that the principal relief sought was the nullification of the purported deed
of sale and reconveyance of the subject property. It also noted that there was no tenurial, leasehold, or any other agrarian
relations between the parties.
Thus, this petition, raising the following issues for the resolution of this Court:
1. Whether or not the CA erred in not dismissing the appeal despite the undisputed fact that Atty.
Magbitang filed the notice of appeal without respondents knowledge and consent;
2. Whether or not the CA erred in giving due course to the appeal despite the fact that Atty.
Magbitangs appellants brief failed to comply with the mandatory requirements of Section 13, Rule 44 of
the Rules of Court regarding the contents of an appellants brief; and
3. Whether or not the CA erred in ruling that the RTC (Regional Trial Court), not the DARAB
(Department of Agrarian Reform Adjudication Board) or the PARAD/RARAD (Provincial/Regional Agrarian
Provincial Agrarian Reform Adjudicator), has jurisdiction over respondents complaint.[9]
The CA did not err in giving due course to the appeal, on both procedural and substantive grounds.
A lawyer who represents a client before the trial court is presumed to represent such client before the appellate
court. Section 22 of Rule 138 creates this presumption, thus:
SEC. 22. Attorney who appears in lower court presumed to represent client on appeal. An attorney
who appears de parte in a case before a lower court shall be presumed to continue representing his client
on appeal, unless he files a formal petition withdrawing his appearance in the appellate court.
A reading of respondent Elena Garcias letter to the RTC would show that she did not actually withdraw Atty.
Magbitangs authority to represent respondents in the case. The letter merely stated that there was, as yet, no agreement
that they would pursue an appeal.
In any case, an unauthorized appearance of an attorney may be ratified by the client either expressly or impliedly.
Ratification retroacts to the date of the lawyers first appearance and validates the action taken by him. [10] Implied
ratification may take various forms, such as by silence or acquiescence, or by acceptance and retention of benefits flowing
therefrom.[11] Respondents silence or lack of remonstration when the case was finally elevated to the CA means that they
have acquiesced to the filing of the appeal.
Moreover, a lawyer is mandated to serve his client with competence and diligence.[12] Consequently, a lawyer is
entreated not to neglect a legal matter entrusted to him; otherwise, his negligence in connection therewith shall render
him liable.[13] In light of such mandate, Atty. Magbitangs act of filing the notice of appeal without waiting for her clients to
direct him to do so was understandable, if not commendable.
The CA was likewise correct in holding that the case is within the jurisdiction of the RTC, not the DARAB.
For the DARAB to have jurisdiction over a case, there must be a tenancy relationship between the parties. It is,
therefore, essential to establish all the indispensable elements of a tenancy relationship, to wit: (1) that the parties are
the landowner and the tenant or agricultural lessee; (2) that the subject matter of the relationship is an agricultural land;
(3) that there is consent between the parties to the relationship; (4) that the purpose of the relationship is to bring about
agricultural production; (5) that there is personal cultivation on the part of the tenant or agricultural lessee; and (6) that
the harvest is shared between the landowner and the tenant or agricultural lessee.[14]
Basic is the rule that jurisdiction is determined by the allegations in the complaint.[15] Respondents complaint did
not contain any allegation that would, even in the slightest, imply that there was a tenancy relation between them and
the petitioners. We are in full agreement with the following findings of the CA on this point:
x x x A reading of the material averments of the complaint reveals that the principal relief sought by
plaintiffs-appellants is for the nullification of the supposedly forged deed of sale which resulted in the
issuance of TCT No. NT-188664 covering their 8-hectare property as well as its reconveyance, and not for
the cancellation of CLOAs as claimed by defendants-appellees. Moreover, the parties herein have no
tenurial, leasehold, or any other agrarian relations whatsoever that could have brought this controversy
under the ambit of the agrarian reform laws. Neither were the CLOA awardees impleaded as parties in
this case nor the latters entitlement thereto questioned. Hence, contrary to the findings of the RTC, the
herein dispute is purely civil and not agrarian in nature falling within the exclusive jurisdiction of the trial
courts.
On the alleged deficiency of the appellants brief filed before the CA by the respondents, suffice it to state that the
requirements in Section 13, Rule 44 are intended to aid the appellate court in arriving at a just and proper resolution of
the case. Obviously, the CA found the appellants brief sufficient in form and substance as the appellate court was able to
arrive at a just decision. We have repeatedly held that technical and procedural rules are intended to help secure, not to
suppress, substantial justice. A deviation from a rigid enforcement of the rules may, thus, be allowed in order to attain
this prime objective for, after all, the dispensation of justice is the core reason for the existence of courts.[16]
WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals Decision dated February 6, 2007
is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82760 August 30, 1990
FELIMON MANANGAN, petitioner,
vs.
COURT OF FIRST INSTANCE OF NUEVA VIZCAYA, BRANCH 28, respondent.
MELENCIO-HERRERA, J.:
For abuse of Court processes, hopping from one forum to another, filing a labyrinth of cases and pleadings,
thwarting the smooth prosecution of Criminal Case No. 639 against him for no less than twelve (12) years, and
for masquerading as Filemon Manangan when his real name is Andres Culanag, petitioner has brought upon
himself the severest censure and a punishment for contempt. The Petition for Certiorari he has filed likewise
calls for dismissal.
The Petition, Amended Petition, and Second Amended Petition seek the annulment of the entire proceedings
in Criminal Case No. 639 of respondent Court, including the Alias Warrant of Arrest issued by it, dated 19 July
1979, "for being stale/functus officio." It is claimed, inter alia, that respondent Court committed grave abuse of
discretion in making it appear that petitioner was duly tried and convicted when the contrary was true, and that
the Alias Warrant of Arrest was irregularly issued because respondent Court had already accepted a property
bond.
In the Amended Petition, petitioner further alleges that respondent Court had irregularly assumed jurisdiction
as it is the Sandiganbayan that has exclusive original jurisdiction over the case considering that he was Legal
Officer I of the Bureau of Lands, Region II, and that he had supposedly committed the offense in relation to that
office.
Piecing together the facts from the hodgepodge of quotations from the Decisions in the different cases filed by
petitioner, we recite the relevant ones below.
On 7 November 1977, petitioner, representing himself as a lawyer, was appointed Legal Officer I of the Bureau
of Lands in Region II (p. 98, Rollo).
On 30 June 1978, Criminal Case No. 639 entitled "People v. Filemon Manangan alias Andres Culanag" (Annex
D, Petition, Rollo, UDK 3906, p. 20) was filed before the then Court of First Instance of Nueva Vizcaya, First
Judicial District, Bayombong, charging petitioner with "Execution of Deeds by Intimidation" under Article 298 of
the Revised Penal Code (the Criminal Case, for short). Apparently, the Director of Lands had given his
imprimatur to the charge.
On the same date, an Order of Arrest was issued by then Judge Gabriel Dunuan of respondent Court (Rollo,
UDK 3906, p. 21).
On 18 April 1979, petitioner filed before this Court a Petition for Certiorari, Prohibition and mandamus with Writ
of Preliminary Injunction entitled "Filemon de Asis Manangan v. Court of First Instance, et al.," in UDK No.
3906, assailing the jurisdiction of respondent Court to try the criminal case and seeking to stay the Order of
Arrest of 30 June 1978. The petition was dismissed on 7 May 1979 for non-payment of legal fees (p. 99, Rollo).
On 10 and 18 July 1978, the dates set for preliminary investigation, petitioner did not show up and, in fact,
disappeared for about a year.
On 31 July 1978, a Second Amended Information was filed (Comment, Solicitor General, p. 61, Rollo), this
time Identifying the accused as "Andres Culanag (alias Andres M. Culanag, Filemon Manangan Atty. Filemon
A. Manangan and Atty. Ross V. Pangilinan)."
On 8 July 1979, petitioner surfaced and, through counsel, posted a bailbond with the Municipal Circuit Court of
San Miguel, Zamboanga del Sur (Resolution of the RTC, Nueva Vizcaya, 25 March 1983, Annex B, Petition, p.
2).
On 19 July 1979, an Alias Warrant of Arrest was by Judge Gabriel Dunuan. It is this Alias Warrant that is
challenged herein.
On 12 September 1979, petitioner filed an ex-parte Motion to Dismiss the Criminal Case, which was denied by
respondent Court (see CA-G.R. No. 11588-SP, p. 2).
Petitioner then resorted to a Petition for Certiorari and Mandamus before the Court of Appeals in CA-G.R. No.
11588-SP entitled "Filemon Manangan v. Director of Lands and CFI of Nueva Vizcaya." The Petition sought to
(1) nullify the decision of the Director of Lands, dated 27 March 1980, finding petitioner guilty of extortion,
impersonation and abandonment of office and ordering his dismissal from the service; and (2) "require
respondent CFI of Nueva Ecija to dismiss Criminal Case No. 639 pending in its Court." In a Decision,
promulgated on 27 February 1981, the Appellate Court dismissed the Petition for "absolute lack of legal and
factual basis" and holding, among others, that "the non-withdrawal of the Information for execution of deeds by
intimidation . . . is not covered by mandamus" (hereinafter, the German Decision). 1
On 30 October 1981, before respondent Court, a Motion for Reconsideration was filed by petitioner, ostensibly
through counsel, Atty. Benjamin Facun, asking that the Criminal Case be dismissed on the ground that the
accused had already died on 29 September 1971 such that respondent Court had not acquired jurisdiction
over his person. The Motion was denied.
On 22 February 1982, erroneously construing the German Decision as a final judgment of conviction,
respondent Court reset the promulgation to 19 April 1982 and ordered the bondsmen to produce the body of
the accused on said date (Annex A, Petition). Realizing the mistake, on 9 July 1982, respondent Court vacated
said order and ruled that "the warrant of arrest issued by this Court through Judge Gabriel Dunuan on 19 July
1979, shall remain in full force and effect" (Annex F, Petition).
On 25 June 1982, petitioner again resorted to the Court of Appeals in another Petition for Certiorari (CA-G.R.
No. SP-14428) filed by one Atty. Benjamin Facun as counsel for petitioner, this time praying for the annulment
of the proceedings in the Criminal Case "on the ground that the accused was already dead when the decision
finding him guilty of the crime . . . was rendered." The pleading alleged "that petitioner is of age, Filipino,
deceased, but has come to this Honorable Court through counsel. . . ." In a Decision promulgated on 29
November 1982, Certiorariwas denied for being devoid of merit inasmuch as "there is nothing on record to
show that such dismissal had been sought before the decision was rendered" (briefly, the Kapunan
Decision). 2 (Actually, no judgment has been rendered by respondent Court).
Unfazed by the adverse Kapunan Decision, the supposed heirs of the accused, on 10 February 1983, filed a
Manifestation before respondent Court asking for the dismissal and termination of the Criminal Case on the
same ground that the accused had allegedly died.
On 25 March 1983, Judge Quirino A. Catral of respondent Court refused to declare the case closed and
terminated inasmuch as the accused was alive on 8 July 1979 when he posted his bailbond (citing the
Kapunan Decision) and reiterated that the "alias warrant issued by the Court on July 19, 1979 which up to the
present has not yet been served upon the accused as in full force and effect."
For the third time, the case was elevated to the then Intermediate Appellate Court in AC-G.R. No. SP-00707,
entitled "Heirs of the Deceased Filemon Manangan v. Hon. Quirino A. Catral, etc." The Petition sought to annul
the Order of Judge Catral of 25 March 1983 denying the closure and termination of the Criminal Case.
On 28 May 1983, the then IAC, after quoting at length from the Kapunan Decision and the Catral Order,
dismissed the Petition (hereinafter, the Aquino Decision) 3 holding, inter alia, that "whether or not its denial of
the motion to dismiss that case constitutes a grave abuse of discretion, was already passed upon by this Court
in CA-G.R. No. SP-14428 (Kapunan Decision), hence, it is res adjudicata. It may not be litigated anew, no
matter what form the action for that purpose may take."
On 28 June 1984, before the respondent Court, petitioner-accused filed an Omnibus Motion with Motion for
New Trial, which was denied for lack of merit in the Order of 19 November 1984. In the same Order,
respondent Court ordered the case archived until such time that the accused is brought to the Court.
On 19 June 1986, counsel for petitioner-accused filed a Motion to Quash on the grounds that: "(1) the court
trying the case has no jurisdiction over the offense charged or the person of the accused; and (2) the accused
has been previously convicted or in jeopardy of being convicted of the offense charged."
It was at that stage of the case below, without awaiting disposition on the Motion to Quash, that the present
Petition was instituted.
The obvious conclusion from the recital of facts given is that the Petition is without merit. Petitioner-accused
had a pending Motion to Quash before respondent Court and should have awaited resolution thereon. He had
a plain, speedy and adequate remedy in the ordinary course of law and resort to this Petition is decidedly
premature.
Contrary to petitioner's pretensions, the Alias Warrant of Arrest is valid. Petitioner had evaded arrest by
disappearing from the jurisdiction of respondent Court. Neither is there any indication in the records that the
property bond, filed by petitioner-accused in the Municipal Circuit Court of San Miguel, Zamboanga del Sur,
had been accepted by respondent Court and petitioner discharged on the basis thereof. The Alias Warrant is
not "stale or functus officio," as alleged. Unlike a warrant, which is valid for only ten (10) days from date (Rule
126, Sec. 9), a Warrant of Arrest remains valid until arrest is effected or the Warrant lifted. Respondent Court,
therefore, cannot be faulted with grave abuse of discretion for holding that said Warrant is in full force and
effect.
Although there may have been some initial confusion on the part of respondent Court arising from the Kapunan
Decision, that was timely rectified. In the final analysis, respondent Court has not made it appear that
petitioner-accused has already been arraigned and tried, let alone convicted. No jeopardy has attached, as
alleged. Again, therefore, no grave abuse of discretion can be attributed to respondent Court.
Petitioner's argument in his Amended Petition and Second Amended Petition that it is the Sandiganbayan that
has exclusive jurisdiction over the Criminal Case neither holds water considering that not only is he ineligible
for the position of Legal Officer I in the Bureau of Lands, Region II, for not being a lawyer, but also because he
was dismissed from the service on 27 March 1980 by the Director of Lands, who found him, with the approval
of the Minister of Natural Resources, guilty of extortion, impersonation and abandonment of office CA-G.R. No.
11588-SP, p. 2).
The foregoing conclusions could dispose of the case.
However, on 8 June 1989, the Solicitor General filed a "Manifestation/Motion to Strike Out" the present petition
for being fictitious and that by reason thereof petitioner should be cited for contempt of Court. The Solicitor
General has also prayed that he be excused from filing a Comment on petitioner's Second Amended Petition,
which we resolve to grant.
The Solicitor General maintains that a re-examination of the records in the Criminal shows that:
a. Filemon A. Manangan is only an alias of Andres M. Culanag, the person charged in Criminal
Case No. 639;
b. Filemon A. Manangan was a lawyer from San Marcelino, Zambales, who died on September
29, 1971 in the vicinity of his residence where he and his driver died on the spot; and
c. [Andres M. Culanag] knew the real Filemon Manangan and knowing about the latter's death,
assumed the name, qualifications and other personal circumstances of Filemon Manangan. By
means thereof, he was able to pass himself off as a lawyer and to actually practice law, using
even the Certificate of Admission to the Philippine Bar of Filemon Manangan which states that
he was admitted to the Bar on March 6, 1964. By this guise, [Andres M. Culanag] succeeded in
obtaining a position as legal Officer I in the Bureau of Lands.
In opposition, petitioner maintains that he is not a fictitious person, having been born out of the lawful wedlock
of Segundino Manangan and Felipa Asis; and that assuming that there is sufficient basis to charge him for
contempt, it will no longer prosper on the ground of prescription.
Petitioner's posturings are completely bereft of basis. As the Solicitor General had also disclosed in the
German Decision, petitioner [Andres Culanag] had, on 23 February 1977, filed Sp. Procs. No. 23 with the
Court of First Instance of Nueva Ecija, San Jose City Branch, for the change of his name from Andres Culanag
to Filemon Manangan. In that petition, he claimed that his real name is Andres Culanag; that his entire school
records carry his name as Filemon Manangan: and that he is the same person as Andres Culanag, the latter
being his real name. The imprisonment was carried to the extreme when, in petitioner's Manifestation, dated
10 February 1983, before respondent Court, his supposed heirs alleged that accused had died before the filing
of the Information on 29 September 1971, the exact date of death of the real Filemon Manangan. More,
petitioner also masquerades under the name of Atty. Benjamin M. Facun in the several pleadings filed in
connection with the Criminal Case.
In the German Decision, it was additionally pointed out that petitioner had also committed imprisonation when,
representing himself as Atty. Ross V. Pangilinan, he filed a petition with this Court praying that his right to
practice law be affirmed (Misc. Bar-I and Misc. Bar-2). In those cases, we ruled that petitioner Filemon
Manangan is "really Andres Culanag, an impostor;" dismissed the petitions; and directed Andres Culanag to
show cause why he should not be punished for contempt for filing the two false petitions (In re: Andres
Culanag, September 30, 1971, 41 SCRA 26). He explained that "he thought this Court would not discover that
he is a poseur, for which reason he apologizes to the Court promising that he would not commit the same act if
he is excused and given another chance." On 12 November 1971, after finding his explanation unsatisfactory,
we adjudged him guilty of indirect contempt of Court under Rule 71, Section 3(e) of the Rules of Court 4 and
sentenced him to suffer imprisonment for six (6) months.
Parenthetically, we also take judicial notice of Bar Matter No. 190, entitled "In Re Andres Culanag alias Atty.
Ross V. Pangilinan" and Bar Matter No. 206, entitled "Eriberto H. Decena vs. Andres Culanag" wherein, on 9
October 1984, this Court Resolved "to direct that petitioner be subjected to mental examination by a doctor
from the National Mental Hospital" after noting that petitioner was suffering from some kind of mental
alienation. This mitigates somewhat petitioner's present liability for contempt.
It is the height of chicanery, indeed, that despite the foregoing antecedents, petitioner still has the gall to claim
that he is, in truth and in fact, Filemon Manangan. The evidence on hand, without need for more, and with
petitioner having been sufficiently heard, amply establishes that petitioner Filemon Manangan, is an impostor.
He is guilty of continued fraudulent misrepresentation and highly improper conduct tending directly to impede,
obstruct, degrade, and make a mockery of the administration of justice (Rule 71, Sec. 3 [d]).
While it may be that some pronouncements in the pertinent decisions allude to Filemon Manangan and that
Andres Culanag is just an alias of Filemon Manangan, those statements actually refer to the person of Andres
Culanag and not to the real Filemon Manangan, long since dead.
The action for contempt has not prescribed since it is apparent that the contumacious acts continue to this day.
WHEREFORE, (1) the Petition, Amended Petition, and the Second Amended Petition are hereby dismissed for
utter lack of merit; (2) petitioner is adjudged in contempt of Court, severely censured, and sentenced to suffer
three (3) months imprisonment, the same to be served at the Provincial Jail of Nueva Vizcaya to ensure his
appearance during the trial of the subject criminal case; (3) respondent Court is hereby directed to retrieve
Criminal Case No. 639 from its archives and to proceed to its determination with deliberate dispatch; (4) all
Courts are directed not to recognize any person representing himself as Filemon Manangan, Atty. Filemon
Manangan, or Atty. Benjamin M. Facun; and (5) petitioner's real name is declared to be Andres Culanag.
Treble costs against petitioner.
SO ORDERED.
EN BANC
[A.C. No. 5829. October 28, 2003]
DANIEL LEMOINE, complainant, vs. ATTY. AMADEO E. BALON, JR., respondent.
DECISION
PER CURIAM:
On December 17, 1999, complainant Daniel Lemoine, a French national, filed a verified complaint[1] against
respondent Atty. Amadeo E. Balon, Jr., for estafa and misconduct before the Integrated Bar of
the Philippines. The case, docketed as CBD Case No. 99-679, was referred by the Commission on Bar Discipline
to an Investigator for investigation, report and recommendation.
The facts that spawned the filing of the complaint are as follows:
In early 1998, complainant filed a car insurance claim with the Metropolitan Insurance Company
(Metropolitan Insurance), the insurer of his vehicle which was lost. As complainant encountered problems in
pursuing his claim which was initially rejected,[2] his friend, a certain Jesus Jess Garcia (Garcia), arranged for
the engagement of respondents services.
By letter[3] of October 21, 1998 addressed to Elde Management, Inc., ATTN: Mr. Daniel Lemoine, under
whose care complainant could be reached, respondent advised complainant, whom he had not before met, that
for his legal services he was charging 25% of the actual amount being recovered. . . payable upon successful
recovery; an advance payment of P50,000.00 to be charged [to complainant] to be deducted from whatever
amount [would] be successfully collected; P1,000.00 as appearance and conference fee for each and every
court hearings, conferences outside our law office and meetings before the Office of the Insurance Commission
which will be also charged to our 25% recovery fee; and legal expenses such as but not limited to filing fee,
messengerial and postage expenses . . . and other miscellaneous but related expenses, to be charged to
complainants account which would be reimbursed upon presentation of statement of account.
The letter-proposal of respondent regarding attorneys fees does not bear complainants conformity, he not
having agreed therewith.
It appears that Metropolitan Insurance finally offered to settle complainants claim, for by
letter[4] of December 9, 1998 addressed to it, respondent confirmed his acceptance of its offer to settle the claim
of complainant in an ex-gratia basis of 75% of his policy coverage which is therefore FIVE HUNDRED TWENTY
FIVE THOUSAND (P525,000.00) PESOS.
A day or a few days before December 23, 1998 when complainant left for France,[5] he, on the advice of
respondent, signed an already prepared undated Special Power of Attorney[6]authorizing respondent and/or
Garcia to bring any action against Metropolitan Insurance for the satisfaction of complainants claim as well as to
negotiate, sign, compromise[,] encash and receive payment from it. The Special Power of Attorney was later
dated December 23, 1998 on which same date Metropolitan Insurance issued a Chinabank Check No.
841172 payable to complainant in the amount of P525,000.00 as full settlement of the claim.[7] The check was
received by respondent.
In the meantime, complainant returned to the Philippines in early January 1999 but left again on the 24th of
the same month.[8] On inquiry about the status of his claim, Garcia echoed to complainant what respondent had
written him (Garcia) in respondents letter[9] of March 26, 1999 that the claim was still pending with Metropolitan
Insurance and that it was still subject of negotiations in which Metropolitan Insurance offered to settle it
for P350,000.00 representing
fifty
percent
thereof. In
the
same
letter
to
Garcia, respondent suggested the acceptance of theoffer of settlement to avoid a protracted litigation.
On December 6, 1999, on complainants personal visit to the office of Metropolitan Insurance, he was
informed that his claim had long been settled via a December 23, 1998 check given to respondent the year
before.[10] Complainant lost no time in going to the law office of respondent who was not around, however, but
whom he was able to talk by telephone during which he demanded that he turn over the proceeds of his claim.[11]
Respondent thereupon faxed to complainant a December 7, 1999 letter[12] wherein he acknowledged having
in his possession the proceeds of the encashed check which he retained, however, as attorneys lien pending
complainants payment of his attorneys fee, equivalent to fifty percent (50%) of entire amount collected. In the
same letter, respondent protested what he branded as the uncivilized and unprofessional behavior complainant
reportedly demonstrated at respondents office. Respondent winded up his letter as follows, quoted verbatim:
We would like to make it clear that we cannot give you the aforesaid amount until and unless our attorneys fees will be
forthwith agreed and settled. In the same manner, should you be barbaric and uncivilized with your approached, we will
not hesitate to make a proper representation with the Bureau of Immigration and Deportation for the authenticity of your
visa, Department of Labor and Employment for your working status, Bureau of Internal Revenue for your taxation
compliance and the National Bureau of Investigation [with] which we have a good network...
While it [is your] prerogative to file a legal action against us, it is also our prerogative to file a case against you. We will
rather suggest if you could request your lawyer to just confer with us for the peaceful settlement of this matter.
(Underscoring and emphasis supplied)
As despite written demands,[13] respondent refused to turn over the proceeds of the insurance claim and to
acknowledge the unreasonableness of the attorneys fees he was demanding, complainant instituted the
administrative action at bar on December 17, 1999.
In his Complaint-Affidavit, complainant alleged that [i]t appears that there was irregularity with the check, it
having been issued payable to him, but and/or AMADEO BALON was therein intercalated after his
(complainants) name.[14]
Maintaining that respondent was entitled to only P50,000.00 in attorneys fees,[15] complainant decried
respondents continued possession of the proceeds of his claim[16]and his misrepresentations that the recovery
thereof was fraught with difficulties.[17]
In his Counter-Affidavit[18] of February 18, 2000, respondent asserted that his continued retention of the
proceeds of complainants claim is in lawful exercise of his lien for unpaid attorneys fees. He expressed
readiness, however, to account for and turn them over once he got paid fifty percent (50%) thereof, he citing the
so called contingent fee billing method of no cure, no pay adopted by practicing lawyers in the insurance industry
as the basis of the amount of his attorneys fees,[19] which to him was justified in the absence of an attorney-client
contract between him and complainant, the latter having rejected respondents letter-proposal of October 21,
1998.[20]
Respondent also highlighted the value of the time and efforts he extended in pursuing complainants claim
and the expenses he incurred in connection therewith. He went on to assert that his inability to contact
complainant whose whereabouts he did not know prompted him to encash the check and keep the proceeds
thereof in conformity with the Special Power of Attorney executed in his favor.[21]
During the hearings conducted by the IBP Investigator, complainant echoed his allegations in his ComplaintAffidavit and stressed that he turned down as unreasonable respondents proposal in his October 21, 1998 letter
that he be paid 25% of the actual amount collected for his legal services. [22] And he presented documentary
evidence, including the March 26, 1999letter of respondent informing his co-attorney-in-fact Garcia of the
supposedly still unrecovered claim and suggesting acceptance of the purported offer of Metropolitan Insurance
to settle complainants claim at P350,000.00.
Explaining how his above-mentioned March 26, 1999 letter to Garcia came about, respondent declared that
it was made upon Garcias request, intended for a certain Joel Ramiscal (Ramiscal) who was said to be Garcias
business partner.[23]
Respondent later submitted a June 13, 2001 Supplement[24] to his Counter-Affidavit reiterating his
explanation that it was on Garcias express request that he wrote the March 26, 1999letter, which was directed
to the fax number of Ramiscal.
Additionally, respondent declared that in the first week of May 1999, on the representation of Garcia that he
had talked to complainant about respondents retention of fifty percent (50%) of the insurance proceeds for
professional fees less expenses,[25] he gave Garcia, on a staggered basis, the total amount of P233,000.00
which, so respondent averred, is the amount of insurance claim complainant is entitled to receive less attorneys
fees and expenses.[26] Thus, respondent claimed that he gave Garcia the amount of P30,000.00
on May 31, 1999 at Dulcinea Restaurant in Greenbelt, Makati; the amounts of P50,000.00, P20,000.00 and
P30,000.00 on different occasions at his (respondents) former address through his executive secretary Sally I.
Leonardo; the amount of P20,000.00 at the office of his (respondents) former employer Commonwealth
Insurance Company through his subordinate Glen V. Roxas; and several other payments at Dulcinea, and at
Manila Intercontinental Hotels coffee shop sometime in October 1999.[27] Respondent submitted the separate
sworn statements of Leonardo and Roxas.[28]
Explaining why no written memorandum of the turn over of various payments to Garcia was made,
respondent alleged that there was no need therefor since he very well knew Garcia who is a co-Rotarian and
co-attorney-in-fact and whom he really dealt with regarding complainants claim.[29]
Respondent furthermore declared that he rejected complainants offer to pay him P50,000.00 for his services,
insisting that since there had been no clear-cut agreement on his professional fees and it was through him that
Metropolitan Insurance favorably reconsidered its initial rejection of complainants claim, he is entitled to a
contingent fee of 50% of the net proceeds thereof.[30]
Finally, respondent declared that he, in connection with his follow-up of the insurance claim, incurred
representation expenses of P35,000.00, entertainment and other representation expenses on various occasions
of P10,000.00, and transportation and gasoline expenses and parking fees of P5,000.00;[31] and that his retention
of complainants money was justified in light of his apprehension that complainant, being an alien without a valid
working permit in the Philippines, might leave the country anytime without settling his professional fees. [32]
The Investigating Commissioner, by Report and Recommendation[33] of October 26, 2001, found respondent
guilty of misconduct and recommended that he be disbarred and directed to immediately turn over to complainant
the sum of P475,000.00 representing the amount of the P525,000.00 insurance claim less respondents
professional fees of P50,000.00, as proposed by complainant.
The Board of Govenors of the Integrated Bar of the Philippines, acting on the Investigators Report, issued
Resolution No. XV-2002-401[34] on August 3,2002, reading:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation
of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex A;
and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with
modification, and considering respondents dishonesty which amounted to grave misconduct and grossly unethical
behavior which caused dishonor, not merely to respondent but the noble profession to which he belongs, Respondent is
hereby SUSPENDED from the practice of law for six (6) months with the directive to turn over the amount of Five
Hundred Twenty Five Thousand (P525,000.00) Pesos to the complainant without prejudice to respondents right to claim
attorneys fees which he may collect in the proper forum. (Underscoring supplied)
The records of the case are before this Court for final action.
Respondent, by a Motion for Reconsideration[35] filed with this Court, assails the Investigating
Commissioners Report and Recommendation as not supported by clear, convincing and satisfactory proof. He
prays for the reopening of the case and its remand to the Investigator so that Garcia can personally appear for
his (respondents) confrontation.
There is no need for a reopening of the case. The facts material to its resolution are either admitted or
documented.
This Court is in full accord with the findings of the IBP Investigator that respondent violated the following
provisions of the Code of Professional Responsibility, to wit:
RULE 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
xxx
CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients.
RULE 15.06 - A lawyer shall not state or imply that he is able to influence any public official, tribunal or legislative body.
xxx
CANON 16 - A lawyer shall hold in trust all moneys and properties of his client that may come into his possession.
RULE 16.01 - A lawyer shall account for all money or property collected or received for or from the client.
RULE 16.02 - A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by
him.
RULE 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall
have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and
disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments
and executions he has secured for his client as provided for in the Rules of Court.
xxx
CANON 17 - A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence in him.
xxx
RULE 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time
to the clients request for information.
xxx
RULE 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment,
nor shall he use the same to his advantage or that of a third person, unless the client with full knowledge of the
circumstances consents thereto.
Specifically with respect to above-quoted provision of Canon 16 of the Code of Professional Responsibility,
the Filipino lawyers principal source of ethical rules, which Canon 16 bears on the principal complaint of
complainant, a lawyer must hold in trust all moneys and properties of his client that he may come to possess.
This commandment entails certain specific acts to be done by a lawyer such as rendering an accounting of all
money or property received for or from the client[36] as well as delivery of the funds or property to the client when
due or upon demand.[37] Respondent breached this Canon when after he received the proceeds of complainants
insurance claim, he did not report it to complainant, who had a given address in Makati, or to his co-attorney-infact Garcia who was his contact with respect to complainant.
In fact, long after respondent received the December 23, 1998 check for P525,000.00 he, by his letter
of March 26, 1999 to Garcia, had even the temerity to state that the claim was still pending and recommend
acceptance of the 50% offer . . . which is P350,000.00 pesos. His explanation that he prepared and sent this
letter on Garcias express request is nauseating. A lawyer, like respondent, would not and should not commit
prevarication, documented at that, on the mere request of a friend.
By respondents failure to promptly account for the funds he received and held for the benefit of his client,
he committed professional misconduct.[38] Such misconduct is reprehensible at a greater degree, for it was
obviously done on purpose through the employment of deceit to the prejudice of complainant who was kept in
the dark about the release of the check, until he himself discovered the same, and has to date been deprived of
the use of the proceeds thereof.
A lawyer who practices or utilizes deceit in his dealings with his client not only violates his duty of fidelity,
loyalty and devotion to the clients cause but also degrades himself and besmirches the fair name of an honorable
profession.[39]
That respondent had a lien on complainants funds for his attorneys fees did not relieve him of his duty to
account for it.[40] The lawyers continuing exercise of his retaining lien presupposes that the client agrees with the
amount of attorneys fees to be charged. In case of disagreement or when the client contests that amount for
being unconscionable, however, the lawyer must not arbitrarily apply the funds in his possession to the payment
of his fees.[41] He can file, if he still deems it desirable, the necessary action or proper motion with the proper
court to fix the amount of such fees.[42]
In respondents case, he never had the slightest attempt to bring the matter of his compensation for judicial
determination so that his and complainants sharp disagreement thereon could have been put to an end. Instead,
respondent stubbornly and in bad faith held on to complainants funds with the obvious aim of forcing complainant
to agree to the amount of attorneys fees sought. This is an appalling abuse by respondent of the exercise of an
attorneys retaining lien which by no means is an absolute right and cannot at all justify inordinate delay in the
delivery of money and property to his client when due or upon demand.
Respondent was, before receiving the check, proposing a 25% attorneys fees. After he received the check
and after complainant had discovered its release to him, he was already asking for 50%, objection to which
complainant communicated to him. Why respondent had to doubly increase his fees after the lapse of about one
year when all the while he has been in custody of the proceeds of the check defies comprehension. At any rate,
it smacks of opportunism, to say the least.
As for respondents claim in his June 2001 Supplement to his Counter-Affidavit that he had on several
occasions from May 1999 to October 1999 already delivered a total of P233,000.00 out of the insurance
proceeds to Garcia in trust for complainant, this does not persuade, for it is bereft of any written memorandum
thereof. It is difficult to believe that a lawyer like respondent could have entrusted such total amount of money to
Garcia without documenting it, especially at a time when, as respondent alleged, he and Garcia were not in good
terms.[43] Not only that. As stated earlier, respondents Counter-Affidavit of February 18, 2000 and his December
7, 1999 letter to complainant unequivocally contained his express admission that the total amount of
P525,000.00 was in his custody. Such illogical, futile attempt to exculpate himself only aggravates his
misconduct. Respondents claim discredited, the affidavits of Leonardo and Roxas who, acting allegedly for him,
purportedly gave Garcia some amounts forming part of the P233,000.00 are thus highly suspect and merit no
consideration.
The proven ancillary charges against respondent reinforce the gravity of his professional misconduct.
The
intercalation
of
respondents
name
to
the
Chinabank
check
that
was
issued payable solely in favor of complainant as twice certified by Metropolitan Insurance[44] is clearly a brazen
act of falsification of a commercial document which respondent resorted to in order to encash the check.
Respondents threat in his December 7, 1999 letter to expose complainant to possible sanctions from certain
government agencies with which he bragged to have a good network reflects lack of character, self-respect, and
justness.
It bears noting that for close to five long years respondent has been in possession of complainants funds in
the amount of over half a million pesos. The deceptions and lies that he peddled to conceal, until its discovery
by complainant after about a year, his receipt of the funds and his tenacious custody thereof in a grossly
oppressive manner point to his lack of good moral character. Worse, by respondents turnaround in his
Supplement to his Counter-Affidavit that he already delivered to complainants friend Garcia the amount of
P233,000.00 which, so respondent claims, is all that complainant is entitled to, he in effect has declared that he
has nothing more to turn over to complainant. Such incredible position is tantamount to a refusal to remit
complainants funds, and gives rise to the conclusion that he has misappropriated them.[45]
In fine, by respondents questioned acts, he has shown that he is no longer fit to remain a member of the
noble profession that is the law.
WHEREFORE, respondent Atty. Amadeo E. Balon, Jr., is found GUILTY of malpractice, deceit and gross
misconduct in the practice of his profession as a lawyer and he is hereby DISBARRED. The Office of the Clerk
of Court is directed to strike out his name from the Roll of Attorneys and to inform all courts and the Integrated
Bar of the Philippines of this Decision.
Respondent is ordered to turn over to complainant, Daniel Lemoine, the amount of P525,000.00 within thirty
(30) days from notice, without prejudice to whatever judicial action he may take to recover his attorneys fees and
purported expenses incurred in securing the release thereof from Metropolitan Insurance.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 115908-09 March 29, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANNY GODOY, accused-appellant.
JUDGE EUSTAQUIO Z. GACOTT, JR. complainant,
vs.
MAURICIO REYNOSO, JR. and EVA P. PONCE DE LEON, respondents.
RESOLUTION
REGALADO, J.:
For separate resolution, as an incident arising from these criminal cases under automatic review by the court,
is a complaint1 filed by judge Eustaquio Z. Gacott, Jr. of the Regional Trial Court of Palawan and Puerto
Princesa City, Branch 47, to cite for indirect contempt Mauricio Reynoso, Jr., a columnist, and Eva P. Ponce de
Leon, publisher and chairman of the editorial board, respectively, of the Palawan Times. His Honor's plaint is
based on an article written by respondent Reynoso, Jr. in his column, "On the Beat," and published in the July
20, 1994 issue of said newspaper which is of general circulation in Puerto Princesa City.
The pertinent portions of the article complained of are hereunder reproduced, with the alleged contemptuous
statements italicized for ready identification as the particulars equivalent to the innuendo in a libel charge:
Isang maalab na issues (sic) pa ay ang DEATH THREATS laban kono kay Judge Eustaquio
Gacott, Jr. ng mga pamilya ng kanyang sinentensiyahan ng Double Death Penalty. Sinabi ni
Wilmar Godoy sa DWRM programa na wala silang pagbabantang ginawa umano, at hindi nila
ito kailan man isinaisip. Umaasa na lamang sila sa magiging resulta ng review ng Korte
Suprema. Ayon naman kay Gacott sa kanyang interview sa DYPR ay totoong pinagbabantaan
siya ng mga Godoy. Kaya ayon marami siyang Security na armado, in full battle gear. Kung
totoo ito, bakit hindi niya kasuhan ang mga ito? Ito rin ang katanungan ni Mr. Tony Omaga Diaz,
ang station manager ng DYPR. O bale ba gumawa siya ng sariling MULTO Pagkatapos ay takot
na takot siya sa multong kanyang ginawa.
Usap-usapan pa rin ang kaso ni Godoy. Ito raw ay isang open book maging sa kanyang mga
co-teachers sa Pulot na nagli-live in si Godoy at ang babaing si Mia Taha. Matagal na ang
kanilang ugnayan. Meron ding "balita" ewan kung totoo, na noong si Godoy daw ay nasa
Provincial Jail pa ay dinadalaw siya ni Taha At kumakain pa sila sa labas kasama ang isang
Provincial Guard. Ito rin ang dahilan kung bakit ipinagpilitan ni Judge Gacott na madala kaagad
sa Muntinlupa sa National Bilibid Prisons si Godoy kahit na ang kaso ay naka-apela pa.
xxx xxx xxx
Pero mayroon payo si Atty. Telesforo Paredes, Jr. sa mga mamamayan ng Palawan, mag-ingat
kayo sa paglalakad at baka kung hindi kayo madapa ay madulas daw kayo. Dahil ayon daw kay
Judge Gacott, base sa kanyang interview sa Magandang Gabi Bayan, "Tagilid na raw and
mundo. Maraming nagpapatunay daw dito, maski sa kapitolyo." Joke lang. Pero isang warning
din sa may mga nobya, na mag-ingat sa pag-break sa inyong girlfriend, dahil baka mademanda
kayo at masentensyahan ng double death penalty, lalo na kung kay Judge Gacott, dahil alam
na ninyo, tagilid and laban diyan.
The complaint avers that the article tends to impede, obstruct, belittle, downgrade and degrade the
administration of justice; that the article contains averments which are disrespectful, discourteous, insulting,
offensive and derogatory; that it does not only cast aspersions on the integrity and honesty of complainant as a
judge and on his ability to administer justice objectively and impartially, but is an imputation that he is biased
and he prejudges the cases filed before him; and that the article is sub judice because it is still pending
automatic review.
Respondent Mauricio Reynoso, Jr. contends in his Comment2 that his article does not intend to impede nor
obstruct the administration of justice because the same was published after complainant had promulgated his
decision in the case; that such publication will not affect or influence the review by the Supreme Court of the
criminal case, considering that the Palawan Times is circulated only in the City of Puerto Princess and some
parts of Palawan; that the comments made therein were made in good faith and in the exercise of the freedom
of expression and of the press; that while the article may contain unfavorable comments about complainant, it
cannot be considered as having the tendency to degrade or impede the administration of justice; and that the
complaint, which is for contempt of a judge of a regional trial court, was erroneously filed with the Supreme
Court contrary to Section 4, Rule 71 of the rules of Court.
Respondent Eva P. Ponce de Leon, in her Comment3 and Supplemental Comment,4 asserts that the article is
merely in reaction to the television interview given by complainant in the show, "Magandang Gabi Bayan," last
June 18, 1994 wherein the latter defended his decision in Criminal Cases Nos. 11640-41, entitled "People vs.
Godoy;" that the article is no longer sub judice as the same was published only after complainant had rendered
his decision and had already lost jurisdiction over the case; that the article cannot be considered contemptuous
and defamatory in the absence of a clear and present danger that it will tend directly or indirectly to impede,
obstruct, or ridicule the administration of justice; that it constitutes a valid exercise of the constitutionally
guaranteed freedom of the press; that a reading of the subject article in its entirety will show that the same
does not constitute contempt but, at most, is merely a fair criticism which did not intend to malign nor place him
in disrepute in the performance of his functions; and that respondent Ponce de Leon cannot be held liable for
contempt because she did not have either actual knowledge of, or Personal connection with, the authorship or
publication of the allegedly contemptuous article, since she had just returned from the United States when the
same was published.
On the issue of whether the specified statements complained of are contumacious in nature, we are inclined,
based on an overall perusal and objective analysis of the subject article, to hold in the negative. We have read
and reread the article in its entirety and we are fully convinced that what is involved here is a situation wherein
the alleged disparaging statements have been taken out of context. If the statements claimed to be
contumelious had been read with contextual care, there would have been no reason for this contempt
proceeding.
In our aforestated evaluation, we were sufficiently persuaded to favorably consider the following explanation of
respondent Ponce de Leon in her Supplemental Comment:
On the other hand, a reading of the subject article in its entirety will show that the same does
not constitute contempt, but at most, merely constitutes fair criticism.
The first portion of the article reads:
"Isang maalab na issues (sic) pa ay ang DEATH THREATS laban kono kay
Judge Eustaquio Gacott, Jr. ng mga pamilya ng kanyang sinentensiyahan ng
Double Death Penalty. Sinabi ni Wilmar Godoy sa DWRM programa na wala
silang pagbabantang ginawa umano, at hindi nila ito kailan man isinaisip. Ayon
naman kay Gacott sa kanyang interview sa DYPR ay totoong pinagbabantaan
siya ng mga Godoy. Kaya ayon marami siyang Security na armado, in full battle
gear. Kung totoo ito, bakit hindi niya kasuhan ang mga ito? Ito rin ang
katanungan ni Mr. Tony Omaga Diaz, ang station manager ng DYPR. O bale ba
gumawa siya ng sariling MULTO Pagkatapos ay takot na takot siya sa multong
kanyang ginawa."
The foregoing does not even deal with the merits of the case, but with the public accusations
being made by complainant that he is being given death threats by the family of the accused,
Danny Godoy. The article only makes a justifiable query as to why Complainant does not file the
appropriate charges if his accusations are true.
"Usap-usapan pa rin ang kaso ni Godoy. Ito raw ay isang open book maging sa
kanyang mga co-teachers sa Pulot na nagli-live in si Godoy at ang babaing si
Mia Taha. Matagal na ang kanilang ugnayan. Meron ding ‘balita’ ewan kung
totoo, na noong si Godoy daw ay nasa Provincial Jail pa ay dinadalaw siya ni
Taha At kumakain pa sila sa labas kasama ang isang Provincial Guard. Ito rin
ang dahilan kung bakit ipinagpilitan ni Judge Gacott na madala kaagad sa
Muntinlupa sa National Bilibid Prisons si Godoy kahit na ang kaso ay naka-apela
pa." (Emphasis supplied)
The foregoing is merely a report of rumors regarding the accused Danny Godoy. They are not
presented as facts by respondent Mauricio Reynoso, Jr. In fact, he even goes to the extent of
acknowledging that he himself does not know if the rumors are true or not.
The subject article then offers the following analysis:
"Malaking epekto ang desisyon ng Korte Suprema sa dalawang tao, kay Danny
Godoy at Judge Gacott. Kung babaliktarin ng Supreme Court and decision ni
Gacott, lalaya si Godoy, si Gacott naman ang masisira, ang kanyang aspirations
na maitaas sa Court of Appeals at eventually makasama sa mga miyembro ng
korte suprema ng bansa. Kung papaboran naman Gacott ay sigurado na ang
kamatayan ni Godoy, at double pa pero si Gacott maitataas pa ang puwesto.
Tayo naman, hintay lamang tayo ng ano mang magiging developments ng kaso."
The foregoing is nothing more than a fair analysis. For indeed, if the Honorable Court affirms the
Decision of Complainant, the accused Danny Godoy would be meted the death sentence. On
the other hand, if the decision is reversed, this may adversely affect the aspirations of
Complainant to be promoted to the Court of Appeals, and eventually to the Honorable Court.
Finally, the subject article reads:
"Pero mayroon payo si Atty. Telesforo Paredes, Jr. sa mga mamamayan ng
Palawan, mag-ingat kayo sa paglalakad at baka kung hindi kayo madapa ay
madulas daw kayo. Dahil ayon daw kay Judge Gacott, base sa kanyang
interview sa Magandang Gabi Bayan, 'Tagilid na raw and mundo. Maraming
nagpapatunay daw dito, maski sa kapitolyo.' Joke lang. Pero isang warning din
sa may mga nobya, na mag-ingat sa pag-break sa inyong girlfriend, dahil baka
mademanda kayo at masentensyahan ng double death penalty, lalo na kung kay
Judge Gacott, dahil alam na ninyo, tagilid and laban diyan."
Again, the subject article merely reports what Atty. Telesforo Paredes, Jr. allegedly said. But
more importantly, the foregoing is merely a reaction not so much to Complainant's Decision, but
to the public statements made by Complainant in the national television show "Magandang Gabi
Bayan."
Snide remarks or sarcastic innuendoes do not necessarily assume that level of contumely which is actionable
under Rule 71 of the Rules of Court. Neither do we believe that the publication in question was intended to
influence this Court for it could not conceivably be capable of doing so. The article has not transcended the
legal limits for editorial comment and criticism. Besides, it has not been shown that there exists a substantive
evil which is extremely serious and that the degree of its imminence is so exceptionally high as to warrant
punishment for contempt and sufficient to disregard the constitutional guaranties of free speech and press.
It has been insightfully explained and suggested that a judge will generally and wisely pass unnoticed any
mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that in every
case where a judge decides for one party, he decides against another; and oftentimes both parties are
beforehand equally confident and sanguine. The disappointment, therefore, is great, and it is not in human
nature that there should be other than a bitter feeling, which often reaches to the judge as the cause of the
supposed wrong. A judge, therefore, ought to be patient, and tolerate everything which appears as but the
momentary outbreak of disappointment. A second thought will generally make a party ashamed of such,
outbreak, and the dignity of the court will suffer none by passing it in silence.5
Prescinding from the foregoing adjudgment, the Court observes that there are two primary issues presented in
this incident which deserve a more extended disquisition, firstly, because of their importance and frequent
involvement in contempt proceedings filed in the courts, and, secondly, by reason of the fact that there are
numerous and variant pronouncements on the subject of contempt which need to be clarified. The principal
issues are (1) whether or not there can be contempt of court in case of post-litigation statements or
publications; and (2) which court has jurisdiction over a contempt committed against the trial court while the
case is pending on appeal. Other cognate and related issues must also be discussed so as to provide judicial
guidance on the present state of our statutory and case laws thereon.
Before we go into a more intensive analysis of said issues, however, it may be beneficial for purposes thereof
to preliminarily revisit and expound on the nature and implications of a special civil action for contempt or of
any initiatory pleading therefor filed as an incident in the main case. That exercise will further explain and
justify our disposition of the contempt charge herein.
I
Prefatorial Considerations
The exercise of the power to punish for contempt has a dual aspect, primarily, the proper punishment of the
guilty party for his disrespect to the court, and, secondarily, his compulsory performance of some act or duty
required of him by the court and which he refuses to perform. Due perhaps to this two fold aspect of the
exercise of the power to punish them, contempts are classified as civil or criminal.6 However, the line of
demarcation between acts constituting criminal contempt, as distinguished from civil contempt, is quite
indistinct. The confusion in attempts to classify civil and criminal contempts is due to the fact that there are
contempts in which both elements appear; or there are contempts which are neither wholly civil nor altogether
criminal, but partake of the characteristics of both; or it is also possible that the same act may constitute both a
civil and criminal contempt.
A. As to the Nature of the Offense
A criminal contempt is conduct that is directed against the dignity and authority of the court or a judge acting
judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or
disrespect.7 On the other hand, civil contempt consists in failing to do something ordered to be done by a court
in a civil action for the benefit of the opposing party therein and is, therefore, an offense against the party in
whose behalf the violated order is made.8
A criminal contempt, being directed against the dignity and authority of the court, is an offense against
organized society and, in addition, is also held to be an offense against public justice which raises an issue
between the public and the accused, and the proceedings to punish it are punitive. On the other hand, the
proceedings to punish a civil contempt are remedial and for the purpose of the preservation of the right of
private persons. It has been held that civil contempt is neither a felony nor a misdemeanor, but a power of the
court.9
It has further been stated that intent is a necessary element in criminal contempt, and that no one can be
punished for a criminal contempt unless the evidence makes it clear that he intended to commit it. On the
contrary, there is authority indicating that since the purpose of civil contempt proceedings is remedial, the
defendant's intent in committing the contempt is immaterial. Hence, good faith or the absence of intent to
violate the court's order is not a defense in civil contempt. 10
B. As to the Purpose for which the Power is Exercised
A major factor in determining whether a contempt is civil or criminal is the purpose for which the power is
exercised. Where the primary purpose is to preserve the court’s authority and to punish for disobedience of its
orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to
coerce compliance with an order, the contempt is civil. A criminal contempt involves no element of personal
injury. It is directed against the power and dignity of the court; private parties have little, if any, interest in the
proceedings for punishment. Conversely, if the contempt consists in the refusal of a person to do an act that
the court has ordered him to do for the benefit or advantage of a party to an action pending before the court,
and the contemnor is committed until he complies with the order, the commitment is in the nature of an
execution to enforce the judgment of the court; the party in whose favor that judgment was rendered is the real
party in interest in the proceedings. Civil contempt proceedings look only to the future. And it is said that in civil
contempt proceedings, the contemnor must be in a position to purge himself. 11
C. As to the Character of the Contempt Proceeding
It has been said that the real character of the proceedings is to be determined by the relief sought, or the
dominant purpose, and the proceedings are to be regarded as criminal when the purpose is primarily
punishment, and civil when the purpose is primarily compensatory or remedial. 12
Criminal contempt proceedings are generally held to be in the nature of criminal or quasi-criminal actions. They
are punitive in nature, and the Government, the courts, and the people are interested in their prosecution. Their
purpose is to preserve the power and vindicate the authority and dignity of the court, and to punish for
disobedience of its orders. Strictly speaking, however, they are not criminal proceedings or prosecutions, even
though the contemptuous act involved is also a crime. The proceeding has been characterized as sui generis,
partaking of some of the elements of both a civil and criminal proceeding, but really constituting neither. In
general, criminal contempt proceedings should be conducted in accordance with the principles and rules
applicable to criminal cases, in so far as such procedure is consistent with the summary nature of contempt
proceedings. So it has been held that the strict rules that govern criminal prosecutions apply to a prosecution
for criminal contempt, that the accused is to be afforded many of the protections provided in regular criminal
cases, and that proceedings under statutes governing them are to be strictly construed. However, criminal
proceedings are not required to take any particular form so long as the substantial rights of the accused are
preserved. 13
Civil contempt proceedings are generally held to be remedial and civil in their nature; that is, they are
proceedings for the enforcement of some duty, and essentially a remedy for coercing a person to do the thing
required. As otherwise expressed, a proceeding for civil contempt is one instituted to preserve and enforce the
rights of a private party to an action and to compel obedience to a judgment or decree intended to benefit such
a party litigant. So a proceeding is one for civil contempt, regardless of its form, if the act charged is wholly the
disobedience, by one party to a suit, of a special order made in behalf of the other party and the disobeyed
order may still be obeyed, and the purpose of the punishment is to aid in an enforcement of obedience. The
rules of procedure governing criminal contempt proceedings, or criminal prosecutions, ordinarily are
inapplicable to civil contempt proceedings. It has been held that a proceeding for contempt to enforce a
remedy in a civil action is a proceeding in that action. Accordingly, where there has been a violation of a court
order in a civil action, it is not necessary to docket an independent action in contempt or proceed in an
independent prosecution to enforce the order. It has been held, however, that while the proceeding is auxiliary
to the main case in that it proceeds out of the original case, it is essentially a new and independent proceeding
in that it involves new issues and must be initiated by the issuance and service of new process. 14
In general, civil contempt proceedings should be instituted by an aggrieved party, or his successor, or
someone who has a pecuniary interest in the right to be protected. In criminal contempt proceedings, it is
generally held that the State is the real prosecutor. 15
Contempt is not presumed. In proceedings for criminal contempt, the defendant is presumed innocent and the
burden is on the prosecution to prove the charges beyond reasonable doubt. In proceedings for civil contempt,
there is no presumption, although the burden of proof is on the complainant, and while the proof need not be
beyond reasonable doubt, it must amount to more than a mere preponderance of evidence. It has been said
that the burden of proof in a civil contempt proceeding lies somewhere between the criminal "reasonable
doubt" burden and the civil "fair preponderance" burden. 16
On the basis of the foregoing legal principles which are now well settled, it can be safely concluded that under
paragraph (d) of Section 3, Rule 71 of the Rules of Court on indirect contempt, any improper conduct tending,
directly or indirectly, to impede, obstruct, or degrade the administration of justice, constitutes criminal
contempt.
II
Whether or not Post-Litigation Publications can be the Subject of Contempt Proceedings
A. Effect of Freedom of Speech and Press Guaranties
In the case of In re Sotto, 17 this Court had the opportunity to define the relation between the courts and the
press, quoting there in the statements made by Judge Holmes in U.S. vs. Sullen, 18 thus:
The administration of justice and the freedom of the press, though separate and distinct, are
equally sacred, and neither should be violated by the other. The press and the courts have
correlative rights and duties and should cooperate uphold the principles of the Constitution and
laws, from which the former receives its prerogative and the latter its jurisdiction. The right of
legitimate publicity must be scrupulously recognized and care taken at all times to avoid
impinging upon it. In a clear case where it is necessary in order to dispose of judicial business
unhampered by publications which reasonably tend to impair the impartiality of verdicts, or
otherwise obstruct the administration of justice, this Court will not hesitate to exercise its
undoubted power to punish for contempt. This Court must be permitted to proceed with the
disposition of its business in an orderly manner free from outside interference obstructive of its
constitutional functions. This right will be insisted upon as vital to an impartial court, and, as a
last resort, as an individual exercises the right of self-defense, it will act to preserve its existence
as an unprejudiced tribunal.
Hence, a person charged with contempt of court for making certain utterances or publishing writings which are
clearly opprobrious may not, ordinarily, escape liability therefor by merely invoking the constitutional guaranties
of freedom of speech and press. Liberty of speech and the press must not be confused with an abuse of such
liberties. Obstructing, by means of the spoken or written word, the administration of justice by the courts has
been described as an abuse of the liberty of speech or the press such as will subject the abuser to punishment
for contempt of court.
Guaranties of free speech and a free press, as they appear in the Constitution, are frequently couched so as to
impute responsibility for any abuse of the privilege, and it is sometimes recognized that with respect to whether
an allegedly scandalous publication or utterance is to be treated as a contempt, a line must be drawn between
those speeches or writings which are protected by the privilege of free speech and a free press and those
which constitute an abuse of it.
The right of freedom of the press is only a specific instance of the general right of freedom of speech; persons
engaged in the newspaper business cannot claim any other or greater right than that possessed by persons
not in that business. 19
B. Different Doctrines or Schools of Thought
In the case of In re Francisco Brillantes, 20 Justice Perfecto explained in his dissenting opinion that "as to
whether contempt may be committed for criticizing a tribunal after the same has rendered decision or taken
final action on a matter which is the subject of criticism, there are two schools of thought represented,
respectively, by what we may call the English doctrine and the American doctrine, the first for the affirmative
and the last one for the negative. The question now is to determine which of the two doctrines is more
conformable to reason and justice and, therefore, should be, adopted and applied by our tribunals."
1. The English Doctrine
According to Justice Perfecto, the rule in England is that there can be contempt of court even after the case
has been terminated. He then proceeded to ramify:
In England comments upon the court's action in a concluded case, where libelous or calculated
to bring the court into disrepute, were freely punishable as contempt under the early common
law. Distinction between pending and concluded matters does not seem to have been made.
Any comment impairing the dignity of the court was punishable as contempt regardless of the
time at which made.
xxx xxx xxx
The whole theory of the early common law of contempt is admirably delivered by Wilmot, J., in
King vs. Almon, . . . . The publication there complained of was a volume containing a diatribe
against Lord Mansfield for allowing an amendment of pleading as of course, and apparently
from corrupt motives, in a concluded case, and further charging him with having introduced a
practice to defeat the efficacy of the writ of habeas corpus. It is there said: "The arraignment of
the justice of the judges is arraigning the King's justice; it is an impeachment of his wisdom and
goodness in the choice of his judges, and excites in the mind of the people a general
dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and,
whenever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and most
dangerous obstruction of justice, and, in my opinion, calls for a more rapid and immediate
redress than any other obstruction whatever — not for the sake of the judges as private
individuals, but because they are the channels by which the Kings' justice is conveyed to the
people. To be impartial, and to be universally thought so, are both absolutely necessary for
giving justice that free, open, and uninterrupted current which it has for many ages found all
over this Kingdom, and which so eminently distinguishes and exalts it above all nations upon
the earth . . . . The constitution has provided very apt and proper remedies for correcting and
rectifying the involuntary mistakes of judges, and for punishing and removing them for any
voluntary perversions of justice. But, if their authority is to be trampled upon by pamphleteers
and newswriters, and the people are to be told that the power given to the judges for their
protection is prostituted to their destruction, the court may retain its power some little time; but I
am sure it will instantly lose all its authority, and the power of the court will not long survive the
authority of it: Is it possible to stab that authority more fatally than by charging the court, and
more particularly the chief justice, with having introduced a rule to subvert the constitutional
liberty of the people? A greater scandal could not be published . . . . It is conceded that an act of
violence upon his person when he was making such an order would be contempt punishable by
attachment. Upon what principle? For striking a judge in walking along the streets would not be
a contempt of the court. The reason, therefore, must be, that he is in the exercise of his office,
and discharging the function of a judge of this court; and, if his person is under this protection,
why should not his character be under the same protection? It is not for the sake of the
individual, but for the sake of the public, that his person is under such protection; and, in respect
of the public, the imputing of corruption and the perversion of justice to him, in an order made by
him at his chambers, is attended with much more mischievous consequences than a blow; and
therefore the reason of proceeding in this summary manner applies with equal, if not superior,
force, to one case as well as the other. There is no greater obstruction to the execution of
justice from the striking a judge than from the abusing him, because his order lies open to be
enforced or discharged, whether the judge is struck or abused for making it.
2. The American Doctrine
In American jurisprudence, the general rule is that defamatory comments on the conduct of a judge with
respect to past cases or matters finally disposed of do not constitute contempt, even though libelous and
reflecting on the integrity of the judge and the court. 21 It has been said that the power to punish as a contempt
a criticism concerning a case made after its termination is denied under the theory that such a power is not
necessary as a safeguard to the proper functioning of the court as a judicial tribunal. And it has been said that
comments, however stringent, relating to judicial proceedings which are past and ended are not contempt of
court even though they may be a libel against the judge or some other officer of the court. There is even the
view that when a case is finished, the courts and judges are subject to the same criticisms as other people and
that no comment published in connection with a completed case, however libelous or unjust, is punishable as
contempt of court. Thus it is said that the remedies of a judge who suffers abuse at the hands of the press, not
amounting to contempt, are the same as those available to persons outside the judiciary. 22
To the same effect was the holding in People ex rel. Supreme Court vs. Albertson, 23 where it was declared
that —
The great weight of authority is to the effect that — in so far as proceedings to punish for
contempt are concerned — comment upon the behavior of the court in cases fully determined in
the particular court criticized is unrestricted under our constitutional guaranty of liberty of the
press and free speech, especially in the absence of a statute of direct application to the
contrary. This view in brief is based upon the theory
that — keeping our constitutional guaranties in mind — libelous publications which bear upon
the proceedings of a court while they are pending may in some way affect their correct
determination, and are properly the subject of contempt proceedings. On the other hand, such
publications or oral utterances of entirely retrospective bearing come within the sphere of
authorized comment unless they affect a judge personally, when he has his remedy in an action
of libel or slander, as does any other individual thus offended. He has the right to bring an action
at law before a jury of his peers.
Along similar lines, in Ex Parte Mcleod, 24 the court ruled that:
The right of a court to punish, as for contempts, criticisms of its acts, or even libels upon its
officers, not going to the extent, by improper publications, of influencing a pending trial, . . .
would not only be dangerous to the rights of the people, but its exercise would drag down the
dignity and moral influence of these tribunals. Such criticism is the right of the citizen, and
essential not only to the proper administration of justice, but to the public tranquility and
contentment. Withdrawing power from courts to summarily interfere with such exercise of the
right of the press and freedom of speech deprives them of no useful power.
Likewise, the State Supreme Court of Montana in State ex rel. Metcalf vs. District Court, 25 pointed out that the
legal proceeding involved therein was not pending when the alleged libelous article was published, then
referred to the guaranty of freedom of speech and the press, and eventually held that the publication involved
was not punishable as contempt. It declared that so long as the published criticism does not impede the due
administration of the law, it is better to maintain the guaranty of the Constitution than to undertake to compel
respect or punish libel by the summary process of contempt.
Finally, in holding that persons who had published newspaper articles alleging that a designated judge had
been intentionally partial and corrupt in the trial of certain causes which had been decided and were not
pending when the publication occurred could not be punished as for contempt the court, in State ex
rel. Attorney General vs. Circuit Court, 26 cited a number of cases supporting the view that libelous newspaper
comments upon the acts of a court in actions past and ended do not constitute contempt. It pointed out that
some of such decisions took the position that to punish such publications would constitute a serious invasion of
constitutional guaranties of free speech and a free press.
It ratiocinated in this manner: "Important as it is that courts should perform their grave public duties unimpeded
and unprejudiced by illegitimate influences, there are other rights guaranteed to all citizens by our Constitution
and form of government, either expressly or impliedly, which are fully as important, and which must be guarded
with an equally zealous care. These rights are the rights of free speech and of free publication of the citizens'
sentiments on all subjects. It seems clear to us that so extreme a power as to punish for contempt because of
libelous publications as to past litigation, is inconsistent with, and would materially impair, the constitutional
rights of free speech and free press."
However, even under American jurisprudence, as shall hereafter be demonstrated, the aforesaid rulings are
not without exceptions. There is ample authority that, under proper circumstances, constitutional guaranties of
freedom of speech and liberty of the press do not protect contemptuous publications relating to court
proceedings even though such publications are not made until after the pendency of the litigation in question.27
3. The Philippine Doctrine
In the Philippine setting, as we have noted, there are conflicting views on this issue which have to be analyzed
and, if possible, reconciled. On that exordial indication, we have digressed into these aspects of the law on
contempt and seized upon this incident in the criminal cases at bar in order to essay a rapprochement of such
views into what we may call the Philippine doctrine.
In the early cases decided by this Court involving contempts through newspaper publications, the rule was that
contemptuous publications were actionable only if committed with respect to pending suits. Apparently, the
weight of authority then was to the effect that criticism of the conduct of a judge or a court with regard to
matters finally disposed of does not constitute contempt, even though it may be libelous.
That rule first found application in the case of In re Lozano, et al. 28 and was reiterated in the subsequent cases
of In re Abistado, 29 and People vs. Alarcon, et al, 30 where this Court, speaking through Justice Malcolm,
tersely stated:
The rule is well established that newspaper publications tending to impede, obstruct,
embarrass, or influence the courts in administering justice in a pending suit proceeding
constitute criminal contempt which is summarily punishable by the courts. The rule is otherwise
after the cause is ended. . . . (6 R.C.L., pp. 508-515).
It will be noted that the aforequoted conclusion was arrived at after a short discourse presented by
the ponente on the existing divergence of opinions on the matter between the English and American courts.
But the learned justice, notwithstanding his preference for and application of the American doctrine,
nonetheless thereafter made the recommendatory observation that "(w)ith reference to the applicability of the
above authorities, it should be remarked first of all that this court is not bound to accept any of them absolutely
and unqualifiedly. What is best for the maintenance of the judiciary in the Philippines should be the criterion."
It seems that this view was shared by then Associate Justice Moran when he dissented from the majority
opinion in the aforecited case of People vs. Alarcon, et al., which upheld the doctrine enunciated
in Lozano and Abistado, in this wise: "I know that in the United States, publications about courts, after the
conclusion of a pending case, no matter how perverse or scandalous, are in many instances brought within the
constitutional protection of the liberty of the press. But while this rule may find justification in that country,
considering the American temper and psychology and the stability of its political institutions, it is doubtful
whether here a similar toleration of gross misuse of liberty of the press would, under our circumstances, result
in no untoward consequences to our structure of democracy yet in the process of healthful development and
growth."
Such perception could have probably impelled Justice Moran to deviate from the then accepted doctrine, with
this rationalization:
Contempt, by reason of publications relating to courts and to court proceedings, are of two
kinds. A publication which tends to impede, obstruct, embarrass or influence the courts in
administering justice in a pending suit or proceeding, constitutes criminal contempt which is
summarily punishable by courts. This is the rule announced in the cases relied upon by the
majority. A publication which tends to degrade the courts and to destroy public confidence in
them or that which tends to bring them in any way into disrepute, constitutes likewise criminal
contempt, and is equally punishable by courts. In the language of the majority, what is sought, in
the language of the majority, what is sought, in the first kind of contempt, to be shielded against
the influenced of newspaper comments, is the all-important duty of the courts to administer
justice in the decision of a pending case. In the second kind of contempt, the punitive hand of
justice is extended to vindicate the courts from any act or conduct calculated to bring them into
disfavor or to destroy public confidence in them. In the first, there is no contempt where there is
no action pending, as there is no decision which might in any way be influenced by the
newspaper publication. In the second, the contempt exists, with or without a pending case, as
what is sought to be protected is the court itself and its dignity. Courts would lose their utility if
public confidence in them is destroyed.
That dissenting opinion was impliedly adopted in the subsequent case of In re Brillantes, 31 where the editor of
the Manila Guardian was declared in contempt of court for publishing an editorial, stating that the 1944 Bar
Examinations were conducted in a farcical manner, even after the case involving the validity of said
examinations had been terminated. This was followed by In re Almacen 32 where the Court stated categorically
that the rule that bars contempt after a judicial proceeding has terminated had lost much of its validity, invoking
therein the ruling in Brillantes and quoting with approval the dissenting opinion in Alarcon.
It appears, therefore, that in the two latest cases decided by this Court, the general rule that there can be no
contempt in post-litigation publications is not necessarily all-embracing under certain situations. From the shift
in judicial approach in Brillantes to the position announced in Almacen, it can inevitably be concluded that the
termination of the case is not a guaranty of immunity from a contempt charge for publications or utterances
which are defamatory or libelous, depending on the purpose and effects thereof. In other words, one may still
be cited for contempt of court even after a case has ended, where such punitive action is necessary to protect
the court and its dignity and to vindicate it from acts or conduct intended or calculated to degrade, ridicule or
bring the court into disfavor and thereby erode or destroy public confidence in that court.
This qualified distinction is not without justification and, in fact, was also foreshadowed by the concurring
opinion of Justice Briones in Brillantes wherein, after noting the conflicting views on the amenability of the
contemnor during the pendency or after the termination of the judicial proceeding in the court involved as
illustrated by the English and American doctrines thereon, he advanced the proposition that —
. . . esta distincion no tiene mucha importancia. Lo importante para mi es ver si la critica
lanzada por el recurrido es falsa y esta concebida en terminos tales que "tiende directamente a
degradar la administracion de justicia," . . . es indiferente si versa sobre un asunto o
negociacion totalmente terminada o no; el desacato existe entonces y debe ser castigado.
. . . Se trata simplemente de la facultad inherente en los tribunales de reprimir y castigar todo
acto que tiende a ambarazarles y obstruirles en su funcion de administrar justicia, . . . .
The rationale for making a qualification to the rule generally considered as the American doctrine, which rule
as herein qualified we now adopt and refer to as the Philippine doctrine on this issue, is profoundly and
eloquently explicated by Justice Moran in Alarcon, to wit:
It is true that the Constitution guarantees the freedom of speech and of the press. But license or
abuse of that freedom should not be confused with freedom in its true sense. Well-ordered
liberty demands no less unrelaxing vigilance against abuse of the sacred guaranties of the
Constitution than the fullest protection of their legitimate exercise. As important as is the
maintenance of a free press and the free exercise of the rights of the citizens is the
maintenance of a judiciary unhampered in its administration of justice and secure in its
continuous enjoyment of public confidence. "The administration of justice and freedom of the
press, though separate and distinct are equally sacred, and neither should be violated by the
other. The press and the courts have correlative rights and duties and should cooperate to
uphold the principles of the Constitution and the laws, from which the former receives its
prerogatives and the latter its jurisdiction." (U.S. vs. Su liens, 38 Fed., 2d., 230.) Democracy
cannot long endure in a country where liberty is grossly misused any more than where liberty is
illegitimately abridged.
xxx xxx xxx
If the contemptuous publication made by the respondent herein were directed to this Court in
connection with a case already decided, the effect of the rule laid down by the majority is to
deny this court the power to vindicate its dignity. The mischievous consequences that will follow
from the situation thus sought to be permitted, are both too obvious and odious to be stated.
The administration of Justice, no matter how righteous, may be identified with all sorts of fancied
scandal and corruption. Litigants, discontented for having lost their cases, will have every way to
give vent to their resentment. Respect and obedience to Law will ultimately be shattered, and,
as a consequence, the utility of the courts will completely disappear.
It may be said that respect to courts cannot be compelled and that public confidence should be
a tribute to judicial worth, virtue and intelligence. But compelling respect to courts is one thing
and denying the courts the power to vindicate themselves when outraged is another. I know of
no principle of law that authorizes with impunity a discontented citizen to unleash, by newspaper
publications, the avalanche of his wrath and venom upon courts and judges. If he believes that
a judge is corrupt and that justice has somewhere been perverted, law and order require that he
follow the processes provided by the Constitution and the statutes by instituting the
corresponding proceedings for impeachment or otherwise. As Mr. Justice Palmer, in speaking of
the duty of courts and court officers, has wisely said:
Would it be just to the persons who are called upon to exercise these powers to
compel them to do so, and at the same time allow them to be maltreated or
libeled because they did so? How would a suitor like a juryman trying his case
who might expect he would be assaulted, beaten, his property destroyed, or his
reputation blasted, in case he decided against his opponent? Apply the same
thing to judges, or the sheriff, and how long could organized society hold
together? With reference to a judge, if he has acted corruptly, it is worse than a
mere contempt. But it is apparent it would not be right that the court of which he
is a member should determine this, and consequently the law has provided a
plain and easy method of bringing him to justice by a petition to Parliament; but,
while the law authorizes this, it does not allow infamous charges to be made
against him by persons, either in the newspapers or otherwise, with reference to
how he has or shall discharge the duties of his office. It must be apparent to all
right thinking men that, if such were allowed to be indulged in, it must end in the
usefulness of the court itself being destroyed, however righteous its judges may
act. From what I have said it must not be supposed that I think that the decisions
of the court, or the actions of the judges, or other persons composing the court,
are not to be discussed; on the contrary, I would allow the freest criticism of all
such acts if done in a fair spirit, only stopping at what must injure or destroy the
court itself and bring the administration of the law into disrepute, or be an outrage
on the persons whose acts are discussed, or when such discussion would
interfere with the right decision of the cause before the court.
We do not hesitate to hereby give our imprimatur to the aforequoted opinion which, we fully believe, conforms
to basic dogmatic teachings on judicial and professional conduct requiring respect for and the giving of due
deference to the judicial system and its members — ethical standards which this Court has, time and again,
been trying to inculcate in the minds of every member of the Bar and the public in general.
4. Cautela on the Balancing of Interests
On the bases of the foregoing authorities, it is evident that a line has to be drawn between those utterances or
writings which are protected by the privileges of free speech and a free press and those which constitute an
abuse thereof, in determining whether an allegedly scurrilous publication or statement is to be treated as
contempt of court. But to find the line where the permissible right of free speech ends and its reprehensible
abuse begins is not always an easy task. In contempt proceedings, it was held that this line must usually be
defined by the courts themselves, and in such cases its location is to be established with special care and
caution. 33
In so doing, it becomes necessary to give the subject that careful examination commensurate with its
importance, mindful that, on the one hand, the dignity and authority of the courts must be maintained, while, on
the other, free speech, a free press, and the liberty of the citizen must be preserved. Both are equally valuable
rights. If the court is shorn of its power to punish for contempt in all proper cases, it cannot preserve its
authority, so that even without any constitutional or statutory guaranty this power is inherent in the court. But
the Constitution itself, in the Bill of Rights, guarantees free speech and liberty of the press. Of course, it was
never intended, under the guise of these constitutional guaranties, that the power of the court should be
trenched upon. 34
How to determine whether an act or utterance is covered by the protective mantle of the constitutional guaranty
of liberty of the press or whether it is already outside or an abuse thereof, is an altogether different matter. We
have perforce to draw from tenets in American jurisprudence, although with discriminating choice, since after
all our present doctrines on contempt vis-a-vis constitutional limitations trace their roots in the main to the
lessons laid down and born of the social and judicial experience in that jurisdiction.
The liberty of the press consists in the right to publish with impunity the truth, with good motives and for
justifiable ends, whether it respects governments individuals; the right freely to publish whatever the citizen
may please and to be protected against any responsibility for so doing, except in so far as such publications,
from their blasphemy, obscenity, or scandalous character, may be a public offense, are as by their falsehood
and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. The true
liberty of the press is amply secured by permitting every man to publish his opinion; but it is due to the peace
and dignity of society to inquire into the motives of such publications, and to distinguish between those which
are meant for use and reformation, and with an eye solely to the public good, and those which are intended
merely to delude and defame. To the latter description, it is impossible that any good government should afford
protection and impunity.
The liberty of the press means that anyone can publish anything he pleases, but he is liable for the abuse of
this liberty. If he does this by scandalizing the courts of his country, he is liable to be punished for contempt. In
other words, the abuse of the privilege consists principally in not telling the truth. There is a right to publish the
truth, but no right to publish falsehood to the injury of others with impunity. It, therefore, does not include the
right to malign the courts, to libel and slander and utter the most flagrant and indecent calumnies about the
court and its officers, nor to invade the sanctuaries of the temples. Such practices and such miscreants ought
to be condemned, and the courts would deserve condemnation and abolition if they did not vigorously and
fearlessly punish such offenders. Such practices are an abuse of the liberty of the press, and if the slander
relates to the courts, it concerns the whole public and is consequently punishable summarily as a criminal
contempt. It is therefore the liberty of the press that is guaranteed, not the licentiousness. It is the right to
speak the truth, not the right to bear false witness against your neighbor. 35
This brings to fore the need to make a distinction between adverse criticism of the court's decision after the
case is ended and "scandalizing the court itself." The latter is not criticism; it is personal and scurrilous abuse
of a judge as such, in which case it shall be dealt with as a case of contempt. 36
It must be clearly understood and always borne in mind that there is a vast difference between criticism or fair
comment on the one side and defamation on the other. Where defamation commences, true criticism ends.
True criticism differs from defamation in the following particulars; (1) Criticism deals only with such things as
invite public attention or call for public comment. (2) Criticism never attacks the individual but only his work. In
every case the attack is on a man's acts, or on some thing, and not upon the man himself. A true critic never
indulges in personalities. (3) True criticism never imputes or insinuates dishonorable motives, unless justice
absolutely requires it, and then only on the clearest proofs. (4) The critic never takes advantage of the
occasion to gratify private malice, or to attain any other object beyond the fair discussion of matters of public
interest, and the judicious guidance of the public taste. 37
Generally, criticism of a court's rulings or decisions is not improper, and may not be restricted after a case has
been finally disposed of and has ceased to be pending. So long as critics confine their criticisms to facts and
base them on the decisions of the court, they commit no contempt no matter how severe the criticism may be;
but when they pass beyond that line and charge that judicial conduct was influenced by improper, corrupt, or
selfish motives, or that such conduct was affected by political prejudice or interest, the tendency is to create
distrust and destroy the confidence of the people in their courts. 38
Moreover, it has been held that criticism of courts after a case is finally disposed of, does not constitute
contempt and, to this effect, a case may be said to be pending so long as there is still something for the court
to do therein. But criticism should be distinguished from insult. A criticism after a case has been disposed of
can no longer influence the court, and on that ground it does not constitute contempt. On the other hand, an
insult hurled to the court, even after a case is decided, can under no circumstance be justified. Mere criticism
or comment on the correctness or wrongness, soundness or unsoundness of the decision of the court in a
pending case made in good faith may be tolerated; but to hurl the false charge that the Supreme Court has
been committing deliberately so many blunders and injustices would tend necessarily to undermine the
confidence of the people in the honesty and integrity of its members, and consequently to lower or degrade the
administration of justice, and it constitutes contempt. 39
The Philippine rule, therefore, is that in case of a post-litigation newspaper publication, fair criticism of the
court, its proceedings and its members, are allowed. However, there may be a contempt of court, even though
the case has been terminated, if the publication is attended by either of these two circumstances: (1) where it
tends to bring the court into disrespect or, in other words, to scandalize the court; 40 or (2) where there is a
clear and present danger that the administration of justice would be impeded. And this brings us to the familiar
invocation of freedom of expression usually resorted to as a defense in contempt proceedings.
On the first ground, it has been said that the right of free speech is guaranteed by the Constitution and must be
sacredly guarded, but that an abuse thereof is expressly prohibited by that instrument and must not be
permitted to destroy or impair the efficiency of the courts or the public respect therefor and the confidence
therein. 41
Thus, in State vs. Morril, 42 the court said that any citizen has the right to publish the proceedings and
decisions of the court, and if he deems it necessary for the public good, to comment upon them freely, discuss
their correctness, the fitness or unfitness of the judges for their stations, and the fidelity with which they
perform the important public trusts reposed in them; but he has no right to attempt, by defamatory publications,
to degrade the tribunal, destroy public confidence in it, and dispose the community to disregard and set at
naught its orders, judgments and decrees. Such publications are an abuse of the liberty of the press; and tend
to sap the very foundation of good order and well-being in society by obstructing the course of justice. Courts
possess the power to punish for contempt libelous publications regarding their proceedings, present or past,
upon the ground that they tend to degrade the tribunals, destroy public confidence and respect for their
judgments and decrees, so essentially necessary to the good order and well-being of society, and most
effectually obstruct the free course of justice.
Then, in In re Hayes, 43 it was said that publishers of newspapers have the right, but no higher right than
others, to bring to public notice the conduct of the courts, provided the publications are true and fair in spirit.
The liberty of the press secures the privilege of discussing in a decent and temperate manner the decisions
and judgments of a court of justice; but the language should be that of fair and honorable criticism, and should
not go to the extent of assigning to any party or the court false or dishonest motives. There is no law to restrain
or punish the freest expressions of disapprobation that any person may entertain of what is done in or by the
courts. Under the right of freedom of speech and of the press the public has a right to know and discuss all
judicial proceedings, but this does not include the right to attempt, by wanton defamation, groundless charges
of unfairness and stubborn partisanship, to degrade the tribunal and impair its efficiency.
Finally, in Weston vs. Commonwealth, 44 it was ruled that the freedom of speech may not be exercise in such a
manner as to destroy respect for the courts, the very institution which is the guardian of that right. The dignity
of the courts and the duty of the citizens to respect them are necessary adjuncts to the administration of
justice. Denigrating the court by libelous attacks upon judicial conduct in an ended case, as well as one which
is pending before it, may seriously interfere with the administration of justice. While such an attack may not
affect the particular litigation which has been terminated, it may very well affect the course of justice in future
litigation and impair, if not destroy, the judicial efficiency of the court or judge subjected to the attack.
Anent the second ground, the rule in American jurisprudence is that false and libelous utterances present a
clear and present danger to the administration of justice. 45 To constitute contempt, criticism of a past action of
the court must pose a clear and present danger to a fair administration of justice, that is, the publication must
have an inherent tendency to influence, intimidate, impede, embarrass, or obstruct the court's administration of
justice. 46 It is not merely a private wrong against the rights of litigants and judges, but a public wrong, a crime
against the State, to undertake by libel or slander to impair confidence in the judicial functions. 47
Elucidating on the matter, this Court, in Cabansag vs. Fernandez,
et al., 48 held as follows:
. . . The first, as interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be ''extremely serious and the degree of imminence extremely high"
before the utterance can be punished. The danger to be guarded against is the "substantive
evil" sought to be prevented. And this evil is primarily the "disorderly and unfair administration of
justice." This test establishes a definite rule in constitutional law. It provides the criterion as to
what words may be published. Under this rule, the advocacy of ideas cannot constitutionally be
abridged unless there is a clear and present danger that such advocacy will harm the
administration of Justice.
xxx xxx xxx
Thus, speaking of the extent and scope of the application of this rule, the Supreme Court of the
United States said: "Clear and present danger of substantive evils as a result of indiscriminate
publications regarding judicial proceedings justifies an impairment of the constitutional right of
freedom of speech and press only if the evils are extremely serious and the degree of
imminence extremely high. . . . The possibility of engendering disrespect for the judiciary as a
result of the published criticism of a judge is not such a substantive evil as will justify impairment
of the constitutional right of freedom of speech and press." . . .
No less important is the ruling on the power of the court to punish for contempt in relation to the
freedom of speech and press. We quote: "Freedom of speech and press should not be impaired
through the exercise of the power to punish for contempt of court unless there is no doubt that
the utterances in question are a serious and imminent threat to the administration of justice. A
judge may not hold in contempt one who ventures to publish anything that tends to make him
unpopular or to belittle him. The vehemence of the language used in newspaper publications
concerning a judge's decision is not alone the measure of the power to punish for contempt .
The fires which it kindles must constitute an imminent, not merely a likely, threat to the
administration of justice." . . .
And in weighing the danger of possible interference with the courts by newspaper criticism
against the free speech to determine whether such may constitutionally be punished as
contempt, it was ruled that "freedom of public comment should in borderline instances weigh
heavily against a possible tendency to influence pending cases." . . .
The question in every case, according to Justice Holmes, is whether the words used are used in
such circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that congress has a right to prevent. It is a question of
proximity and degree. . . .
Although Cabansag involved a contempt committed during the pendency of a case, no compelling reason
exists why the doctrines enunciated therein should not be made applicable to vituperative publications made
after the termination of the case. Whether a case is pending or not, there is the constant and ever growing
need to protect the courts from a substantive evil, such as invective conduct or utterances which tend to
impede or degrade the administration of justice, or which calumniate the courts and their judges. At any rate, in
the case of In re Bozorth, 49it was there expressly and categorically ruled that the clear and present danger rule
equally applies to publications made after the determination of a case, with the court declaring that a
curtailment of criticism of the conduct of finally concluded litigation, to be justified, must be in terms of some
serious substantive evil which it is designed to avert.
Adverting again to what was further said in State vs. Shepherd, supra, let it here be emphasized that the
protection and safety of life, liberty, property and character, the peace of society, the proper administration of
justice and even the perpetuity of our institutions and form of government, imperatively demand that everyone
— lawyer, layman, citizen, stranger, newspaperman, friend or foe — shall treat the courts with proper respect
and shall not attempt to degrade them, or impair the respect of the people, or destroy the faith of the people in
them. When the temples of justice become polluted or are not kept pure and clean, the foundations of free
government are undermined, and the institution itself threatened.
III
Jurisdiction in Contempt Proceedings where the Alleged Contumely is Committed Against a Lower
Court while the Case is Pending in the Appellate or Higher Court
In whatever context it may arise, contempt of court involves the doing of an act, or the failure to do an act, in
such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. As a
matter of practical judicial administration, jurisdiction has been felt properly to rest in only one tribunal at a time
with respect to a given controversy. Partly because of administrative considerations, and partly to visit the full
personal effect of the punishment on a contemnor, the rule has been that no other court than the one
contemned will punish a given contempt. 50
The rationale that is usually advanced for the general rule that the power to punish for contempt rests with the
court contemned is that contempt proceedings are sui generis and are triable only by the court against whose
authority the contempt are charged; 51 the power to punish for contempt exists for the purpose of enabling a
court to compel due decorum and respect in its presence and due obedience to its judgments, orders and
processes: 52 and in order that a court may compel obedience to its orders, it must have the right to inquire
whether there has been any disobedience thereof, for to submit the question of disobedience to another
tribunal would operate to deprive the proceeding of half its efficiency. 53
There are, however, several jurisprudentially and statutorily recognized exceptions to the general rule, both
under Philippine and American jurisprudence, viz.:
1. Indirect contempt committed against inferior court may also be tried by the proper regional trial court,
regardless of the imposable penalty. 54
2. Indirect contempt against the Supreme Court may be caused to be investigated by a prosecuting officer and
the charge may be filed in and tried by the regional trial court, or the case may be referred to it for hearing and
recommendation where the charge involves questions of fact. 55
3. In People vs. Alarcon, et al., supra, this Court ruled that "in the interrelation of the different courts forming
our integrated judicial system, one court is not an agent or representative of another and may not, for this
reason, punish contempts in vindication of the authority and decorum which are not its own. The appeal
transfers the proceedings to the appellate court , and this last court becomes thereby charged with the
authority to deal with contempts committed after the perfection of the appeal." The apparent reason is that both
the moral and legal effect of a punishment for contempt would be missed if it were regarded as the resentment
of personal affronts offered to judges. Contempts are punished as offenses against the administration of
justice, and the offense of violating a judicial order is punishable by the court which is charged with its
enforcement, regardless of the court which may have made the order. 56 However, the rule presupposes a
complete transfer of jurisdiction to the appellate court, and there is authority that where the contempt does not
relate
to the subject matter of the appeal, jurisdiction to punish remains in the trial court. 57
4. A court may punish contempts committed against a court or judge constituting one of its parts or agencies,
as in the case of a court composed of several coordinate branches or divisions. 58
5. The biggest factor accounting for the exceptions is where the singular jurisdiction of a given matter has been
transferred from the contemned court to another court. One of the most common reasons for a transfer of
jurisdiction among courts is improper venue. The cases involving venue deal primarily with the question
whether a change of venue is available after a contempt proceeding has been begun. While generally a
change of venue is not available in a contempt proceeding, some jurisdictions allow such a change in proper
circumstances. 59
6. A new court wholly replacing a prior court has jurisdiction to punish for violations of orders entered by its
predecessor, although where the successor court is created by a statute which does not extinguish jurisdiction
in the predecessor, an affirmative transfer of jurisdiction before the contempt occurs is necessary to empower
the successor court to act. 60
7. Transfers of jurisdiction by appellate review have produced numerous instances where contempt against the
trial court has been punished in the appellate court, and vice versa. Some appellate courts have taken the view
that a contempt committed after an appeal is taken is particularly contemptuous of the appellate court because
of the tendency of such contempts to upset the status quo or otherwise interfere with the jurisdiction of such
court. 61
8. A judge may disqualify himself, or be disqualified, on a contempt hearing or in the main case, which
circumstance may require a transfer of jurisdiction, but where a judge is disqualified only in the main case,
because of matters which do not disqualify him in a contempt proceeding, the regular judge should sit in the
contempt proceeding. Likewise, where the regular judge, is absent or otherwise unavailable and an order is
entered by another judge and made returnable to the proper court, the regular judge may punish for violations
of orders so entered. 62
9. Where the same act is a contempt against two or more courts, it is no bar to contempt proceedings in one of
them that there is also a contempt against the other. 63
10. While professional disciplinary proceedings have been resorted to as a punishment for contempt, the more
recent view is that punishment is of secondary importance to the need to protect the courts and the people
from improper professional practice. To the substantial extent that disciplinary action remains a punishment,
disciplinary measures imposed by another court than the one contemned furnish an exception to the rule
against punishing for contempt of another court. 64
11. Some contemptuous acts are also crime, usually misdemeanors, which are often punishable in other courts
than those against which the contemptuous act was done. 65
12. Finally, a conviction for contempt against another court has been allowed to stand on the basis that the
failure of the defendant to make timely objection operated as a waiver of the right to be tried before the court
actually contemned. 66
The rule, as now accepted and deemed applicable to the present incident, is that where the entire case has
already been appealed, jurisdiction to punish for contempt rests with the appellate court where the appeal
completely transfers the proceedings thereto or where there is a tendency to affect the status quo or otherwise
interfere with the jurisdiction of the appellate court. Accordingly, this Court having acquired jurisdiction over the
complaint for indirect contempt against herein respondents, it has taken judicial cognizance thereof and has
accordingly resolved the same.
IV
Appropriate Remedies where the Alleged Contemptuous Statement is also Claimed to be Libelous
Under the American doctrine, to repeat, the great weight of authority is that in so far as proceedings to punish
for contempt are concerned, critical comment upon the behavior of the court in cases fully determined by it is
unrestricted, under the constitutional guaranties of the liberty of the press and freedom of speech. Thus,
comments, however stringent, which have relation to judicial proceedings which are past and ended, are not
contemptuous of the authority of the court to which reference is made. Such comments may constitute a libel
against the judge, but it cannot be treated as in contempt of the court's authority.
On this score, it is said that prosecution for libel is usually the most appropriate and effective remedy. 67 The
force of American public opinion has greatly restrained the courts in the exercise of the power to punish one as
in contempt for making disrespectful or injurious remarks, and it has been said that the remedy of a judge is
the same as that given to a private citizen. 68 In such a case, therefore. the remedy of a criminal action for libel
is available to a judge who has been derogated in a newspaper publication made after the termination aid a
case tried by him, since such publication can no longer be made subject of contempt proceedings.
The rule, however, is different in instances under the Philippine doctrine earlier discussed wherein there may
still be a contempt of court even after a case has been decided and terminated. In such case, the offender may
be cited for contempt for uttering libelous remarks against the court or the judge. The availability, however, of
the power to punish for contempt does not and will not prevent a prosecution for libel, either before, during, or
after the institution of contempt proceedings. In other words, the fact that certain contemptuous conduct
likewise constitutes an indictable libel against the judge of the court contemned does not necessarily require
him to bring a libel action, rather than relying on contempt Proceedings. 69
The fact that an act constituting a contempt is also criminal and punishable by indictment. or other method of
criminal prosecution does not prevent the outraged Court from punishing the contempt. 70 This principle stems
from the fundamental doctrine that an act may be punished as a contempt even though it has been punished
as a criminal offense. 71 The defense of having once been in jeopardy, based on a conviction for the criminal
offense, would not lie in bar of the contempt proceedings, on the proposition that a contempt may be an
offense against the dignity of a court and, at the same time, an offense against the peace and dignity of the
people of the State. 72 But more importantly. adherence to the American doctrine by insisting that a judge
should instead file an action fur libel will definitely give rise to an absurd situation and may even cause more
harm than good.
Drawing also from American jurisprudence, to compel the judge to descend from the plane of his judicial office
to the level of the contemnor, pass over the matter of contempt, and instead attack him by a civil action to
satisfy the judge in damages for a libel, would be a still greater humiliation of a court. That conduct would be
personal; the court is impersonal. In our jurisdiction, the judicial status is fixed to such a point that our courts
and the judges thereof should be protected from the improper consequences of their discharge of duties so
much so that judicial officers have always been shielded, on the highest considerations of the public good,
from being called for questioning in civil actions for things done in their judicial capacity.
Whenever we subject the established courts of the and to the degradation of private prosecution, we subdue
their independence, and destroy their authority. instead of being venerable before the public, they become
contemptible; and we thereby embolden the licentious to trample upon everything sacred in society, and to
overturn those institutions which have hitherto been deemed the best guardians of civil liberty. 73
Hence, the suggestion that judges who are unjustly attacked have a remedy in an action for libel, has been
assailed as being without rational basis in principle. In the first place, the outrage is not directed to the judge as
a private individual but to the judge as such or to the court as an organ of the administration of justice. In the
second place, public interests will gravely suffer where the judge, as such, will, from time to time, be pulled
down and disrobed of his judicial authority to face his assailant on equal grounds and prosecute cases in his
behalf as a private individual. The same reasons of public policy which exempt a judge from civil liability in the
exercise of his judicial functions, most fundamental of which is the policy to confine his time exclusively to the
discharge of his public duties, applies here with equal, if not superior, force. 74
V
Whether or not the Same Contemptuous Conduct of a Member of the Bar can be the Subject of both a
Contempt Proceeding and an Administrative Disciplinary Action
With the foregoing discussion of the appropriate remedies available to a judge, we feel that this issue with
respect to proper remedies against an erring member or the Bar should consequentially be addressed, by way
of reiteration, since conflicting and erroneous remedies are sometimes resorted to by aggrieved tribunals or
parties.
The basic rule here is that the power to punish for contempt and the power to disbar are separate and distinct,
and that the exercise of one does not exclude the exercise of the other. 75 A contempt proceeding for
misbehavior in court is designed to vindicate the authority of the court; on the other hand, the object of a
disciplinary proceeding is to deal with the fitness of the court's officer to continue in that office, to preserve and
protect the court and the public from the official ministrations of persons unfit or unworthy to hold such
office. 76 The principal purpose of the exercise of the power to cite for contempt is to safeguard the functions of
the court and should thus be used sparingly on a preservative and not, on the vindictive principle. 77 The
principal purpose of the exercise of disciplinary authority by the Supreme Court is to assure respect for orders
of such court by attorneys who, as much as judges, are responsible for the orderly administration of justice. 78
Moreover, it has been held that the imposition a fine as a penalty in a contempt proceeding is not
considered res judicata to a subsequent charge for unprofessional conduct. 79 In the same manner an
attorney's conviction for contempt was not collaterally estopped by reason of a subsequent disbarment
proceeding in which the court found in his favor on essentially the same facts leading to conviction. 80 It has
likewise been the rule that a notice to a lawyer to show cause why he should not be punished for contempt
cannot be considered as a notice to show cause why he should not be suspended from the practice of law,
considering that they have distinct objects and for each of them a different procedure is established. Contempt
of court is governed by the procedures laid down under Rule 71 of the Rules of Court, whereas disciplinary
actions in the Practice of law are governed by file 138 and 139 thereof. 81
Although apparently different in legal bases, the authority to punish for contempt and to discipline lawyers are
both inherent in the Supreme Court and are equally incidents of the court's basic power to oversee the proper
administration of justice and the orderly discharge of judicial functions. As was succinctly expounded
in Zaldivar vs.Sandiganbayan, et al.: 82
There are, in other words, two (2) related powers which come into play in cases like that before
us here: the Court's inherent power to discipline attorneys and the contempt power. The
disciplinary authority of the Court over members of the Bar is broader than the power to punish
for contempt. Contempt of court may be committed both by lawyers and non-lawyers, both in
and out of court. Frequently, where the contemnor is a lawyer, the contumacious conduct also
constitutes professional misconduct which calls into play the disciplinary authority of the
Supreme Court. Where the respondent is a lawyer, however, the Supreme Court's disciplinary
authority over lawyers may come into play whether or not the misconduct with which the
respondent is charged also constitutes contempt of court. 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 responsibilities 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.
With this rounding out of the subordinate and principal issues in resolving the incident, we feel that the
guidelines we have laid down will provide assertive references for the lower courts in disciplinary matters
arising before them. Coming back to the incident fore resolution, arising as a spin-off from the criminal cases at
bar, we reiterate what we have declared at the outset, absolving judge for the reasons therein stated.
WHEREFORE, on the foregoing premises, the complaint for indirect contempt against herein respondents
Mauricio Reynoso, Jr. and Eva P. Ponce de Leon is hereby DISMISSED.
SO ORDERED.
EN BANC
G.R. No. 146783
July 29, 2002
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF MAXIMINO GAMIDO; MAXIMINO B.
GAMIDO, petitioner,
vs.
NEW BILIBID PRISON, respondent.
RESOLUTION
QUISUMBING, J.:
Before us is the Motion for Relief filed on January 17, 2002 by Espiridion J. Dela Cruz, of Suite 416 William
Liyao Bldg., Rizal Avenue, Manila, who styles himself as "counsel" for petitioner Maximino B. Gamido. Two
issues were tendered during the hearing of said motion today, attended by Dela Cruz and the counsels for
respondent led by the Assistant Solicitor General Rodolfo Urbiztondo, OSG, to wit:
1. Whether or not there has been a violation of the rule against forum-shopping; and
2. Whether or not Espiridion J. Dela Cruz may appear as counsel for petitioner in this case, considering
allegations that he is not a member of the Philippine Bar.
It appearing that earlier the petitioner himself filed under date of February 12, 2001, personally his Motion to
Withdraw Petition, and that the Court in its Resolution dated March 12, 2001, granted the withdrawal of his
petition for habeas corpus, the Court hereby RESOLVES that the instant Motion for Relief, which was filed
without authority of the petitioner and clearly without merit, should be and is hereby DENIED.
Further, considering representations by the self-styled counsel for petitioner that he, Espiridion J. Dela Cruz, is
a lawyer with a law office bearing his name at Suite 416 William Liyao Bldg., Rizal Avenue, Manila, and for this
purpose he used the title of attorney and indicated in his pleadings filed before this Court an IBP number,
which turned out to be spurious, it having been shown and admitted by him that he is not a member of the
Philippine Bar as certified by the Office of the Bar Confidant, after he was made to show cause why he should
not be disciplinarily dealt with for appearing as counsel in this case without license to practice law, and
although he asked the Court for forgiveness for the wrong he had done, the Court RESOLVED to declare
ESPIRIDION J. DELA CRUZ GUILTY of indirect contempt of this Court. WHEREFORE, he is hereby
sentenced to pay a FINE of TEN THOUSAND PESOS (P10,000) within thirty days from notice
hereof, OR suffer IMPRISONMENT for a period of one month and one day to be served at the National Bureau
of Investigation (NBI) detention center, Taft Avenue, Manila, with the warning that a repetition of the same or
similar act would be dealt with more severely.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24864 April 30, l985
FORTUNATO HALILI, doing business under the name and style HALILI TRANSIT (substituted by
EMILIA DE VERA DE HALILI), petitioner
vs.
COURT OF INDUSTRIAL RELATIONS and HALILI BUS DRIVERS and CONDUCTORS UNION
(PTGWO), respondents.
G.R. No. L-27773 April 30, l985
EMILIA DE VERA VDA. DE HALILI, petitioner,
vs.
COURT OF INDUSTRIAL RELATIONS and HALILI BUS DRIVERS AND CONDUCTORS UNION
(PTGWO), respondents.
G.R. No. L-38655 April 30, l985
FELICIDAD M. TOLENTINO, et al., petitioners,
vs.
COURT OF INDUSTRIAL RELATIONS, et al., respondents.
G.R. No. L-30110 April 30, l985
EMILIA DE VERA VDA. DE HALILI petitioner,
vs.
HALILI BUS DRIVERS AND CONDUCTORS UNION-PTGWO and COURT OF INDUSTRIAL
RELATIONS, respondents.
RESOLUTION
MAKASIAR, J.:
Before Us for resolution is the urgent motion to cite Atty. Benjamin C. Pineda, Ricardo Capuno and Manila
Bank (Cubao Branch) in contempt for the alleged continued failure of aforenamed parties to comply with the
temporary mandatory restraining order issued by this Court on September 1, 1983 and with the resolution
dated September 13, 1983 which again directed Atty. Pineda and union administrator Capuno to comply with
the aforesaid mandatory restraining order and which ordered the Manila Bank to transfer the funds allocated
for the workers to the NLRC (p. 376, L-24864, rec.; p. 301, L027773 rec.).
The issuance of the temporary mandatory restraining order stemmed from the questioned orders of September
23, 1982 and February 9, 1983 issued by Labor Arbiter Raymundo Valenzuela in Case No. 1099-V before the
NLRC which orders respectively allowed the sale of the property awarded to satisfy or answer for the claims of
the union members in these four cases and authorized the distribution of the proceeds of the purchase.
For a better appreciation of the aforesaid motion for contempt, We must recall certain prefatory facts which the
Solicitor General has so aptly summed up. Thus:
The above-entitled cases involve disputes regarding claims for overtime of more than five
hundred bus drivers and conductors of Halili Transit. Litigation initially commenced with the filing
of a complaint for overtime with the defunct Court of Industrial Relations on August 20, 1958
docketed as CIR Case No. 1099-V. The disputes were eventually settled when the contending
parties reached an Agreement on December 23, 1974, the pertinent portions of which are as
follows:
WHEREAS, in the face of this strong urging on the part of the Supreme Court Justices upon the
parties to put an immediate end to this case by amicable settlement, the parties repeatedly
came to conference, conscientiously explored all avenues of settlement, and finally arrived at
the tentative agreement (tentative because of the condition that the same be sanctioned by the
court in the estate case) whereby the Administratrix would transfer to the employees title to that
tract of land, covered by TCT No. 36389, containing an area of approximately 33,952 square
meters, situated in the Barrio of San Bartolome, Municipality of Caloocan, Province of Rizal, and
pay in addition the cash amount of P25,000.00 in full and final satisfaction of all the claims and
causes of action of all of the employees against the estate of Fortunato F. Halili subject of CIR
Case No. 1099-V.
xxx xxx xxx
NOW, THEREFORE, for and in consideration of the foregoing and of the covenants, stipulations
and undertakings hereinafter contained, the parties have agreed as follows:
l. The UNION, its officers and members-claimants relative to CIR Case No. 1099-V, shall
withdraw and dismiss with prejudice Case No. 1099-V filed by the UNION in behalf of its
members-claimants before the Court of Industrial Relations and all its incidents thereto.
2. The ESTATE shall deliver or cause to be delivered, to the UNION the following:
(a) Deed of Transfer of a parcel of land situated in Barrio San Bartolome, Caloocan City,
containing an area of THIRTY-THREE THOUSAND NINE HUNDRED FIFTY-TWO (33,952)
Square Meters, more or less, and covered by Transfer Certificate of Title No. 35389 of the
Registry of Deeds of Rizal, to be made, upon authority and approval granted by the Court of
First of Rizal, Branch IV, at Quezon City, in Proc. No. Q-10852 in the name of the Halili Bus
Drivers & Conductors Union (PTGWO), free from any and all liens encumbrances, and any and
all claims whatsoever.
(b) Negotiable Check for TWENTY-FIVE THOUSAND (P25,000.00) PESOS in the name of
Domingo D. Cabading, President of the UNION.
3. The transfer of the above-described parcel of land and receipt of the amount of P25,000.00
constitute the full and final satisfaction of the claims and award in said CIR Case No. 1099-V, as
well as any and all attorney's liens in said case, for and in consideration of which the UNION
members-claimants in CIR Case No. 1099-V by these present now and forever release and
quitclaim Halili Enterprises, Halili Transit, Fortunato F. Halili his estate, heirs and successors by
reason of CIR Case No. 1099-V, it being their intention that they be absolutely, completely and
finally absolved and released from any and all liability in said case, including attorneys' liens the
transfer of the property and payment of the amount hereinabove stated constituting for all
intents and purposes a full, final and complete settlement and satisfaction of the award in CIR
Case No. 1099-V and all incidents thereto.
4. The UNION and its undersigned officers hereby warrant that the UNION is a duly registered
labor organization and that in a special meeting called for the purpose they were duly authorized
on December 22, 1974, by all the members- claimants in CIR Case No. 1099-V to sign this
Memorandum of Agreement with Release and Quitclaim which was unanimously approved and
ratified by said members-claimants as evidenced by a Resolution dated December 22, 1974, a
copy of which is attached hereto and made a part hereof as Annex "B", and hereby jointly and
severally hold the estate and heirs of Fortunato F. Halili free and harness from, and undertake
to indemnify them for, any and all liability for any claims by members of the UNION, their heirs,
assigns and agents relating to CIR Case No. 1099-V or attorneys' liens in connection therewith
(69 SCRA 509-510).
On January 6, 1975, pursuant to the Agreement, the administratrix of the estate of Fortunato F,
Halili executed a Deed of Conveyance of Real Property, transferring the aforementioned parcel
of land to the Halili Bus and Conductors Union (PTGWO) in trust for the members of the union
claimants. The parcel of land was eventually registered in the name of the Union on February
14, 1975. Hence, on February 10, 1976, the contending parties moved for the dismissal of G.R.
No. L-30110 and G.R. No. L-38655, which this Honorable Court granted on February 27, 1976
(69 SCRA 505). The two other cases, G.R. No. L-24864 and G.R. No. L- 27773, were
previously disposed of on February 26, 1968 and December 28, 1970, respectively (22 SCRA
785. and 36 SCRA 522).
On August 9, 1982, the Union, through Atty. Benjamin C. Pineda, filed an urgent motion with the
Ministry of Labor and Employment (MOLE) requesting for authority to sell and dispose of the
property. The motion was granted in an order dated September 23, 1982. A prospective buyer,
the Manila Memorial Park Cemetery, inc. expressed its misgivings on the authority of the Union
to sell the property in view of sec. 66 of PD 1529 which requires no less than an order from a
court of competent jurisdiction as authority to sell property in trust. So, Atty. Pineda filed a
motion with the Supreme Court on December 1, 1982 requesting for authority to sell the
property, This Honorable Court, however, merely noted the motion in a resolution dated
December 8, 1982.
Nevertheless, Atty. Pineda, without authority from the Supreme Court but relying on the earlier
authority given him by the Ministry of Labor, filed another urgent motion with the latter, praying
that the Union be authorized to sell the lot to the Manila Memorial Park Cemetery, Inc. and to
make arrangements with it such that payment will be advanced for the real estate taxes
inclusive of penalties, attorney's lien which is equivalent to a thirty-five percent (35%) of the total
purchase price, and home developer's fee of P69,000.00. Apparently, the prospective purchaser
had decided to withdraw its objection regarding the Union's authority to sell. In an Order dated
February 9, 1983, Labor Arbiter Raymundo R. Valenzuela granted the motion. So, the sale was
finally consummated on June 7, 1983, resulting in the execution of an escrow agreement on
June 8, 1983 wherein the purchase price was deposited under escrow with the Manila BankCubao Branch. The Bank then released the amounts due the claimants in accordance with the
escrow agreement" (pp. 352- 356, L-24864 rec.).
The dispositive portion in L-24864 is re-stated hereunder:
WHEREFORE, the appealed order and resolution en banc are hereby affirmed and the Court of
Industrial Relations is hereby enjoined to make a judicial determination of the union membership
of the claimants, while the Examining Division of said court shall proceed with its computation of
the compensable hours of work rendered by, and the corresponding compensation payable to,
the drivers and conductors admitted by both parties to be union members since October 1, 1956
and those contended by the union to be such members but disputed by the employer. No costs.
So ordered (p. 186, L-24864 rec.).
When Atty. Jose C. Espinas (herein movant and alleged original counsel for the Union) learned of the sale and
apportionment of the proceeds from past Union president Amado Lopez, he requested Labor Arbiter
Raymundo Valenzuela to allow him to look into the records of Case No. 1099-V. The latter, however, told him
that the records of the aforecited case were missing. Thereupon, Atty. Espinas requested Director Pascual
Reyes of the NLRC to locate the records (p. 356, L24864 rec.).
Hence, Atty. Espinas filed the urgent motion with prayer for a temporary mandatory restraining order on August
26, 1983 and the supplement thereto on August 29, 1983 (pp. 215, 227, L-24864 rec.).
On August 30, 1983, the records of Case No. 1099-V were finally found and Atty. Espinas was dully informed
of the development,
The above two motions question the legality of the orders dated September 23, 1982 and February 9, 1983
issued by Labor Arbiter Raymundo Valenzuela in Case No. 1099-V before the NLRC which authorized the sale
of the awarded property and the distribution of the proceeds from such purchase.
Movants Union and counsel Espinas upon filing of the motions urgently pray of thisourt to:
1. Require Atty. Benjamin C. Pineda to deposit with the NLRC the amount of P712,992.00 paid to him or
deposited to his account at Manila Bank, Cubao Branch,allegedly representing 35% attorney's fees on the sale
of 33,952 square meters of the lot registered in the name of the Union;
2. Require the Halili Drivers and Conductors Union through Domingo Cabading or any of his representatives to
deposit with the NIRC the 6% alleged union expenses paid to them or similarly deposited to their account;
3. Implead with leave of court this Manila Bank Cubao Branch to require the said bank to prevent further
withdrawals of amount deposited in the name of Atty. Pineda and/or the Halili Drivers and Conductors Union or
any of its officers and to turn over any remaining deposits to the NLRC for proper disposition;
4. Should Atty. Pineda and the Union officers have already withdrawn the deposits or parts thereof, require
them to post a bond in the equivalent amounts of 35% (attorney's fee), 6% (union expenses), and 5% (broker's
fee) respectively of the total proceeds of the sale of the property, solidarity (p. 219, L-24864 rec.; p. 160, L27773 rec.).
Likewise, and after due consideration of the merits, movants prayed that—
1. the order of Arbiter Valenzuela dated February 9, 983 be nullified insofar as it allows Atty. Pineda 35%
attorney's fees;
2. the NLRC be directed to locate the records of Case No. 1099-V or reconstitute the same and thereafter to
equitably dispose 20% as fees to all lawyers who participated in the proceedings and any excess amounts to
be again distributed to the workers; and
3. these cases be remanded to the NLRC with instructions as above-stated and that the proper penalty be
imposed on those involved and who have acted fraudulently and illegally (p. 220, L-24864 rec.; p. 165, L27773 rec.).
The succeeding pleadings and developments which are common to all these cases are now presented
chronologically.
On August 29, 1983, Atty. Espinas, for himself and members of the respondent Union, filed a supplement to
urgent motion stating that the prayers in the urgent motion of August 26, 1983 are reiterated and praying for
the nullification of Arbiter Valenzuela's order not only on the award of attorney's fees but also on the allowance
of payment of "union obligations" not previously authorized nor approved by the NLRC (p. 227, L-24864, rec.;
p. 176, L-27773 rec.).
In its resolution dated September 1, 1983, this Court impleaded the Manila Bank, Cubao Branch as party
respondent and directed the issuance of a temporary mandatory restraining order (p. 234, L-24864 rec. & p.
187, L-27773 rec.). This Court correspondingly issued a temporary mandatory restraining order on the same
date which enjoined Atty. Benjamin C. Pineda or his agents or any person acting in his stead to deposit with
the NLRC the amount of P712,992.00 paid to him or deposited in his account at Manila Bank, Cubao Branch
allegedly representing 35% attorney's fees on the sale of 33,952 square meters of the lot registered in the
name of Halili Drivers and Conductors Union; directed the Union thru Domingo Cabading or his agents to
deposit with the NLRC 6% alleged union expenses paid to the Union or similarly deposited to its account; and
ordered the NLRC and Manila Bank, Cubao Branch, or their agents or persons in their stead not to allow
withdrawals of amounts deposited in the name of Atty. Benjamin C. Pineda and/or the Union or any of its
officers (P. 235, L-24864; p. 188, L-27773 rec.).
On September 6, 1983, respondent Union, thru Atty. Pineda, filed its comment, in compliance with the
resolution of September 1, 1983, on the urgent motion and the supplement thereto both filed by counsel
Espinas, alleging therein that the subject matter sought to be enjoined or mandated by the restraining order
ceased to exist rendering the same moot and academic, and thus praying for the dismissal of the said motion
and the supplement thereto (p. 237, L-24864 rec.; p. 191, L-27773 rec.).
On September 7, 1983, Atty. Pedro Lopez, an original associate of Atty. Espinas, filed his motion for leave to
intervene, with the submission that the lawyers involved should only divide 20% fees as per the workers'
contract and the rest refunded by Atty. Pineda and the alleged "union officers" for redistribution to the members
(p. 265, L-24864, rec.; p. 219. L-27773 rec.).
Atty. Espinas, in behalf of the workers, filed a manifestation and motion to require Atty, Pineda and the union to
comply with the temporary mandatory restraining order on September 9, 1983, with prayer that the Manila
Bank be ordered to transfer the funds allocated for the workers to the NLRC, which should be instructed to pay
the workers upon proper Identification (without prejudice to additional shares) or to mail such amounts by
money order or manager's check to the workers' addresses as furnished to the NLRC (p. 274, L-24864, rec.; p.
231, L-27773 rec.).
On September 12, 1983, petitioner filed a manifestation in compliance with the resolution of September 2,
1983 stating, among other things, that its liability had been completely extinguished with the approval of the
Memorandum of Agreement with Release and Quitclaim in L-38655 and L-30110; that said agreement
operated as an absolute and complete release of petitioner from any liability to the Union; and that petitioner
had not been given any notice of any proceedings respecting cases subsequent to the promulgation of the
decisions aforestated (p. 281, L-24864, rec.; p. 237, L-27773 rec.).
Counsel Espinas (for the workers involved) filed his reply to comments of respondent Union on September 14,
1983 praying for this Court to:
1. nullify the order of February 9, 1983 issued by Arbiter Raymundo Valenzuela in CIR Case No. 1099-V and
others connected therewith regarding the distribution of proceeds of the sale of the land belonging to the
members-claimants for lack of due process and for being contrary to law;
2. nullify the 35% attorney's fees of Atty. Benjamin Pineda as illegal and unconscionable and in disregard of
other lawyers in the case;
3. require reimbursement to the members-from the Union P101,856.00 allocated without their consent as
Union expenses; P101,856 unreceipted brokers' fees less P4,020.40 expenses for the transfer of title; to
refund the 1 % of the net proceeds, P9,596.18, for named claimants; and to secure a refund of P308,000.00
from the P712,992.00 fees of Atty. Pineda (the excess of 20% fees for all lawyers);
4. subject the balance of P404,992.00 of the remainder of Atty. Pineda's 35% fees for distribution among the
three lawyers as may be determined by the NLRC; and
5. should this Court so decides, fix the fees (p. 285, L- 24864 rec.; p. 240, L-27773 rec.).
On September 13, 1983, the Solicitor General filed his comment on the urgent motion and the supplement
thereto dated August 25, 1983 and August 29, 1983, respectively with the recommendations that (1) the orders
of Arbiter Valenzuela dated September 23, 1982 and February 9, 1983 be nullified for having been issued
without due process; (2) the case must be remanded to the NLRC for further proceedings; and (3) the
temporary restraining order issued by this Court on September 1, 1983 be maintained, pending final resolution
by the NLRC (p. 351, L-24864 rec.).
The Solicitor General, on October 6, 1983, filed his manifestation and motion in lieu of comment on the motion
of Atty. Pedro Lopez for leave to intervene in L-24864 and L-27773 (p. 360, L-24864 rec.; p. 289, L-27773
rec.).
On October 6, 1983, counsel Espinas filed his comment on the intervention of Atty. Pedro Lopez wherein he
offers no objection to the latter's intervention and states that said counsel is also entitled to attorney's fees in
accordance with his participation (p. 364, L-24864 rec.; p. 292, L-27773 rec.).
Atty. Pineda filed his comment and manifestation on October 7, 1983, in compliance with the resolution of
September 13, 1983, alleging therein that as per Retainer's Contract dated January 1, 1967, he handled Case
No. 1099-V before the Court of Industrial Relations alone. On the mandatory restraining order, Atty. Pineda
claims that as of October 4, 1983, he had a balance of P2,022.70 in his account with the Manila Bank (p. 370,
L-24864 rec.; p. 295, L-27773 rec.).
In its resolution dated October 18, 1983, this Court (1) set, aside as null and void the orders of September 23,
1982 and February 9, 1983 of Arbiter Raymundo R. Valenzuela; (2) allowed the intervention of Atty. Pedro
Lopez; (3) directed the Manila Bank (Cubao Branch), Atty. Benjamin Pineda, and the Halili Drivers and
Conductors Union through Domingo Cabading or any of his representatives, to comply with the temporary
mandatory restraining order issued on September 1, 1983 and the resolution dated September 13, 1983, within
ten [10] days from receipt thereof; and (4) remanded these cases to the NLRC for further proceedings (p. 374,
L-24864 rec.; p. 299, L-27773 rec.).
The day before or on October 17, 1983, Sergio de Pedro, as representative of the workers and assisted by
Atty. Espinas, thus fided the urgent motion to cite Atty. Pineda, Ricardo Capuilo and Manila Bank (Cubao
Branch) in contempt, alleging therein that after two letters dated October 6 and October l4, l983 to the NLRC
which inquired as to whether or not compliant, with the restraining order had been made, the Commission
certified that as of October 14, 1983, no deposits had been effected by the parties so (directed (p. 376, L24864 rec.; p. 301, L-27773 rec.).
In its manifestation and motion filed on November 2, 1983, respondent Manila Banking Corporation (RustanCubao Branch), in compliance with this Court's resolution of September 13, 1983, stated that it transmitted or
paid to the NLRC the amount of P417,380.64 under Cashier's Check No. 34084190 for the account of the
Union and P2,022.70 under Cashier's Check No. 34084191 for the account of Atty. Pineda and thus prayed
therein that the aforesaid transmittals be deemed as sufficient compliance with the aforecited resolution and
that the urgent motion to cite respondents in contempt dated October 17, 1983 be considered moot and
academic (p. 390, L-24864 rec.).
On November 8, 1983, respondent Atty. Pineda filed his manifestation and motion in lieu of comment in
compliance with this Court's resolution of October 20, 1983, stating that he and respondent Union thereby
adopt the aforecited manifestation and motion of respondent Manila Banking Corporation and thus prayed that
since they have complied with this Court's resolution of September 13, 1983, the urgent motion to cite them for
contempt be considered moot and academic (p. 394, L-24864 rec.; p. 310, L-27773 rec.).
On November 10, 1983, respondent Manila Banking Corporation filed another manifestation and motion in lieu
of commence, by way of compliance with the Court's resolution of October 20, 1983 with prayer that its
previous manifestation and motion dated October 28, 1983 and filed on November 2, 1983 be considered as
sufficient compliance with the resolution of September 13, 1983 which would render the urgent motion to cite
respondents in contempt moot and academic (p. 396, L-24864 rec. p. 312, L-27773 rec.).
On the foregoing manifestations and motions, representative Sergio de Pedro, with the assistance of Atty.
Espinas, filed a comment on November 16,1983 wherein he alleged that out of the P2,037,120.00 purchase
price, only Pl,940,127.29 was deposited with the Manila Bank; that Atty. Pineda has yet to return the balance
of P710,969,30; and that the Union has still to account for P111,452.18 (p. 399, L- 24864 rec.; p. 315, L-27773
rec.).
December 14, 1983, respondent Union filed its reply to Mr. de Pedro's above unsigned comment therein
stating among other things that the alleged missing amount of P96.992.71 was used for the payment of
outstanding real estate taxes on real property of said Union covered by TCT No. 205755 and that the amount
of P2,022.70 only was remitted by Manila Bank to the NLRC for the account of Atty. Pineda (p. 323, L-27773
rec.)
On December 20, 1983, Mr. de Pedro and Atty. Espinas, for the workers involved, filed their rejoinder to the
comment of Atty. Pineda and Mr. Capuno reiterating therein their plea to declare Atty. Pineda and Mr. Capuno
in contempt of court and to mete out the proper penalty (p. 328, L-27773 rec.).
The Manila Banking Corporation filed its compliance with the Court resolution of November 22, 1983 on
February 3, 1984, praying that its report to the NLRC on the amount of withdrawals be considered as sufficient
compliance with the said resolution (p. 343, L-27773 rec.).
Atty. Espinas filed his comment and motion on March 15, 1984, stating among other things that as per report of
the Manila Bank to the NLRC, Atty. Pineda has not yet complied with the said order. He thus moved that Atty.
Pineda be required to post a bond on the undeposited balance in the amounts of P710,969.30 and that Mr.
Capuno be also required to post a bond before the NLRC on the undeposited balance of P52,236.04 during
the pendency of the motion for contempt (p. 373, L-27773 rec.).
On April 4, 1984, Mr. Sergio de Pedro filed his reply to the aforesaid comment of the Union administrator and
Atty. Pineda stating therein that there are still questions to be resolved on the merits before the NLRC and
hence, prays that Arbiter Antonio Tirona be required to continue hearing the merits of the case pending in the
said Commission (p. 377, L-27773 rec.).
Before We resolve the motion for contempt, certain crucial facts which have surfaced and which precipitated
Our issuance of the resolution of October 18, 1983 declaring the two questioned orders of Arbiter Valenzuela
as null and void, must be retraced.
Then Union President Amado Lopez, in a letter dated August 21, 1958, informed J.C. Espinas and Associates
that the general membership of the said Union had authorized a 20% contingent fee for the law firm based on
whatever amount would be awarded the Union (p. 267, L-24864 rec.).
Atty. Jose C. Espinas, the original counsel, established the award of 897 workers' claim in the main cases
before the defunct CIR and the Supreme Court. In L-24864, the Notice of Judgment of this Court dated
February 26, 1968 was served on Messrs. J.C. Espinas & Associates (p. 188, L-24864 rec.). In L-27773, the
Notice of Judgment dated December 29, 1970 was sent to Atty. B.C. Pineda & Associates under same
address-716 Puyat Bldg., Suit 404 at Escolta, Manila (p. 147, L-27773 rec.) Note that this is the same address
of Atty. J.C. Espinas & Associates.
When Atty. 'Pineda appeared for the Union in these cases, still an associate of the law firm, his appearance
carried the firm name B.C. Pineda and Associates," giving the impression that he was the principal lawyer in
these cases.
Atty. Pineda joined the law firm of Atty. Espinas in 1965 when these cases were pending resolution. He always
held office in the firm's place at Puyat Building, Escolta until 1974, except in 1966 to 1967 when he transferred
to the Lakas ng Manggagawa Offices. During this one-year stint at the latter office, Atty. Pineda continued
handling the case with the arrangement that he would report the developments to the Espinas firm. When he
rejoined the law firm in 1968, he continued working on these cases and using the Puyat Building office as his
address in the pleadings.
When Atty. Pineda rejoined the Espinas firm in 1968, he did not reveal to his partners (he was made the most
senior partner) that he had a retainer's contract entered into on January 1, 1967 which allegedly took effect in
1966. He stayed with the law firm until 1974 and still did not divulge the 1967 retainer's contract. Only the
officers of the Union knew of the contract.
The alleged retainer's contract between Atty. Pineda and the Union appears anomalous and even illegal as
well as unethical considering that1. The contract was executed only between Atty. Pineda and the officers of the Union chosen by about 125
members only. It was not a contract with the general membership, Only 14% of the total membership of 897
was represented. This violates Article 242 (d) of the Labor Code which provides:
The members shall determine by secret ballot, after due deliberation, any question of major
policy affecting the entire membership of the organization, unless the nature of the organization
or force majeure renders such secret ballot impractical, in which case the board of directors of
the organization may make the decision in behalf of the general membership (emphasis
supplied).
2. The contingent fee of 30% for those who were still working with Halili Transit and the 45% fee for those who
were no longer working worked to the prejudice of the latter group who should and were entitled to more
benefits. Thus, too, when the alleged retainer's contract was executed in 1967, the Halili Transit had already
stopped operations in Metro Manila. By then, Atty. Pineda knew that all the workers would be out of work which
would mean that the 45% contingent fee would apply to all.
3. The contract which retroactively took effect on January 1, 1966, was executed when Atty. Espinas was still
handling the appeal of Halili Transit in the main case before the Supreme Court. Atty. Pineda would have but
did not substitute himself in place of Atty. Espinas or the law firm on the basis of such contract.
4. When Atty. Pineda filed his motion for approval of his attorney's lien with Arbiter Valenzuela on February 8,
1983, he did not attach the retainer's contract.
5. The retainer's contract was not even notarized (p. 248, L-24864 rec.).
The Manila Memorial Park Cemetery, Inc., as the prospective buyer, initially expresses its misgivings over the
authority of the Union to sell subject property conformably with Section 66 of P.D. No. 1529, which requires an
order from a court of competent jurisdiction authorizing the sale of a property in trust. The pertinent portion of
Section 66 provides:
No instruments which transfers or mortgages or in any way deals with registered land in trust
shall be registered, unless the enabling power thereto is expressly conferred in the trust
instrument, or unless a final judgment or order of a court of competent jurisdiction has construed
the instrument in favor of the power, in which case a certified copy of such judgment or order
may be registered.
The decision of aforenamed purchaser to stop questioning the Union's authority to sell and the expeditious
manner by which Arbiter Valenzuela granted Atty. Pineda's motion for such authority to sell the property make
the entire transaction dubious and irregular.
Thus, without notice to the other lawyers and parties, Atty. Pineda commenced the proceeds before the NLRC
with the filing of a motion and manifestation on August 9, 1982 with Arbiter Valenzuela of the NLRC Office of
the Labor Ministry wherein he asked for authority to sell the property. On September 23, 1983 or just over a
month, Arbiter Valenzuela approved the motion per order of the same date. Notably, only Atty. Pineda and the
lawyers of the purchaser were informed of such order.
On February 4, 1983, again without notice to Atty. Espinas and Atty. Lopez, Atty. Pineda filed a motion with
Arbiter Valenzuela wherein he asked for authority to distribute the proceeds of the sale of the property. This
distribution would include his attorney's fee which was allegedly the subject of a retainer contract entered into
between him and the alleged Union officers, On February 9, 1983, or barely five days from the day the motion
was filed, Arbiter Valenzuela, without informing the other lawyers and relying exclusively on the unverified
motion of Atty. Pineda (the records of the case were not on hand), approved the said motion which authorized
the appointment.
This Court, as earlier stated, nullified said orders dated September 23, 1982 and February 9, 1983 of Labor
Arbiter Valenzuela as violative of the due process clause. It is a settled rule that in administrative proceedings,
or cases coming before administrative tribunals exercising quasi-judicial powers, due process requires not only
notice and hearing, but also the consideration by the administrative tribunal of the evidence presented; the
existence of evidence to support the decision; its substantiality a decision based thereon or at least contained
in the record and disclosed to the parties; such decision by the administrative tribunal resting on its own
independent consideration of the law and facts of the controversy; and such decision acquainting the parties
with the various issued involved and the reasons therefore (Ang Tibay vs. Court, 69 Phil. 635, cited on p. 84,
Philippine Constitutional Law, Fernando, 1984 ed.)
Significantly Atty. Pineda's act of filing a motion with this Court on December 1, 1982 praying for authority to
sell was by itself an admission on his part that he did not possess the authority to sell the property and that this
Court was the proper body which had the power to grant such authority. He could not and did not even wait for
such valid authority but instead previously obtained the same from the labor arbiter whom he knew was not
empowered to so authorize. Under Article 224 (a) of the Labor Code, only final decisions or awards of the
NLRC, the Labor Arbiter, or compulsory or voluntary arbitrators may be implemented or may be the subject of
implementing orders by aforenamed body or officers.
When Atty. Espinas discovered the sale of the property, he went to Arbiter Valenzuela to look into the
transaction who told him that the records of CIR Case No. 1099-V were missing. It took director Pascual Reyes
of the NLRC to locate the records.
The 45% attorney's lien on the award of those union members who were no longer working and the 30% lien
on the benefits of those who were still working as provided for in the alleged retainer's contract are very
exorbitant and unconscionable in view of Section 11, Rule VIII of Book III which explicitly provides:
Sec. 11. Attorney's fees—Attorney's fees on any judicial or administrative proceedings for the
recovery of wages shall not exceed 10% of the amount awarded. The fees may be deducted
from the total amount due the winning party.
The amount of P101,856.00 which Atty. Pineda donated to the Union and which actually corresponds to 5% of
the total 35% attorney's fees taken from the proceeds (p. 263, L-24864, rec.) appears improper since it
amounts to a rebate or commission. This amount was subsequently treated as union miscellaneous operating
expenses without the consent of the general membership.
Thus, in the case of Amalgamated Laborers' Association vs. Court of Industrial Relations (L-23467, 22 SCRA
1267 [March 27, 1968]), We declared:
We strike down the alleged oral agreement that the union president should share in the
attorney's fees. Canon 34 of Legal Ethics condemns this arrangement in terms clear and
explicit. It says: 'No division of fees for legal services is proper, except with another lawyer,
based upon a division of service or responsibility.' The union president is not the attorney for the
laborers. He may seek compensation only as such president. An agreement whereby a union
president is allowed to share in attorney's fees is immoral. Such a contract we emphatically
reject. It cannot be justified.
A contingent fee contract specifying the percentage of recovery an attorney is to receive in a
suit 'should be reasonable under all the circumstances of the case, including the risk and
uncertainty of the compensation, but should always be subject to the supervision of a court, as
to its reasonableness. (emphasis supplied).
A deeper scrutiny of the pleadings in L-24864 notably indicates a fraudulent or deceitful pattern in the
actuations of Atty. Pineda. Thus, in his motion for execution of judgment filed on September 18, 1965 in this
case, he signed for and in behalf of "J.C. Espinas & Associates" (p. 323, rec.). In his manifestation dated
December 10, 1968, he signed as "B.C. Pineda," lone counsel for petitioner (p. 327, rec.); and yet, he carried
the address of Espinas & Associates at 716 G. Puyat Building, Escolta.
However, in the October 29, 1968 resolution of this Court, a copy thereof was served on "Messrs. J.C.
Espinas, B.C Pineda, J.J. dela Rosa & Associates" at Puyat Building, Escolta (p. 324, rec.). In the notice of
judgment dated December 29, 1970, this Court addressed the said pleading to "Attys. B.C. Pineda &
Associates with the same Puyat Building address (p. 325, rec.). Notably also, then Union President Amado
Lopez addressed his letter dated August 21, 1958 to J.C. Espinas & Associates" wherein he informed the latter
that the general membership of the Union had authorized them a 20%, contingent fee on whatever award
would be given the workers (p. 267, rec.).
The Manila Banking Corporation (Cubao Branch) has manifested that it turned over to the NLRC the amount of
P417,380.64 for the Union's account, which appears to be the balance of P950,021.76 corresponding to the
net proceeds for distribution to the workers after deducting P525,480.40, the total payments to claimants. The
amount of P417,380.64 appears lacking, since accurately computed, the balance should be P424,541,36.
However, the Union has yet to account for P101,856.00, the 5% donation or share from Atty. Pineda's
attorney's fee of 35%.
For the account of Atty. Pineda, the Manila Banking Corporation has remitted to the NLRC the amount of
P2,022.70 only. This means that Atty. Pineda is still accountable for the amount of P710,969.30. He is directed
to return the amount of P712,992.00 representing the 35% attorney's fees he unlawfully received.
In view of Our resolution of October 18, 1983, which set aside as null and void the questioned orders dated
September 23, 1982 and February 9, 1983 issued by Arbiter Raymundo Valenzuela, the sale of the Union
property and the distribution of the proceeds therefrom had been effected without authority and, therefore,
illegal Consequently. Atty. Pineda and Arbiter Valenzuela become liable for their unauthorized acts,
Atty. Pineda should be cited for indirect contempt under paragraphs (b), (c) and (d) of Section 3, Rule 71 of the
Revised Rules of Court, The said paragraphs read thus:
Sec. 3. indirect contempts to be punished after charge and hearing.—
xxx xxx xxx
(b) Disobedience of or resistance to a lawful writ, process, order, judgment, or company court,
or injunction granted by a court or judge, including the act of a person who, after being
dispossessed or ejected from any real property by the judgment or process of any court of
competent jurisdiction, enters or attempts or induces another to enter into or upon such real
property, for the purpose of executing acts of ownership or possession, or in any manner
disturbs the possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any interference with the process or proceedings of a court not constituting
direct contempt under section 1 of this rule;
(d) Any improper conduct tending, directly or indirectly to impede, obstruct, or degrade the
administration of justice.
Contempt of court is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring
the authority and administration of the law into disrespect or to interfere with or prejudice parties litigant or their
witnesses during litigation (12 Am. jur. 389, cited in 14 SCRA 813).
Contempt of court is defined as a disobedience to the court by acting in opposition to its authority, justice and
dignity. It signifies not only a willful disregard or disobedience of the court's orders, but such conduct as tends
to bring the authority of 'the court and the administration of law into disrepute or in some manner to impede the
due administration of justice (17 C.J.S. 4).
This Court has thus repeatedly declared that the power to punish for contempt is inherent in all courts and is
essential to the preservation of order in judicial proceedings and to the enforcement of judgments, orders, and
mandates of the court, and consequently, to the due administration of justice (Slade Perkins vs. Director of
Prisons, 58 Phil. 271; In re Kelly, 35 Phil. 944; Commissioner of Immigration vs. Cloribel, 20 SCRA 1241;
Montalban vs. Canonoy, 38 SCRA 1).
In the matter of exercising the power to punish contempts, this Court enunciated in the Slade Perkins case that
"the exercise of the power to punish contempts has a twofold aspect, namely (1) the proper punishment of the
guilty party for his disrespect to the court or its order; and (2) to compel his performance of some act or duty
required of him by the court which he refuses to perform. Due to this twofold aspect of the exercise of the
power to punish them, contempts are classified as civil or criminal. A civil contempt is the failure to do
something ordered to be done by a court or a judge for the benefit of the opposing party therein; and a criminal
contempt, is conduct directed against the authority and dignity of a court or of a judge, as in unlawfully
assailing or discrediting the authority or dignity of the court or judge, or in doing a duly forbidden act. Where the
punishment imposed, whether against a party to a suit or a stranger, is wholly or primarily to protect or
vindicate the dignity and power of the court, either by fine payable to the government or by imprisonment, or
both, it is deemed a judgment in a criminal case. Where the punishment is by fine directed to be paid to a party
in the nature of damages for the wrong inflicted, or by imprisonment as a coercive measure to enforce the
performance of some act for the benefit of the party or in aid of the final judgment or decree rendered in his
behalf, the contempt judgment will, if made before final decree, be treated as in the nature of an interlocutory
order, or, if made after final decree, as remedial in nature, and may be reviewed only on appeal from the final
decree, or in such other mode as is appropriate to the review of judgments in civil cases. ... The question of
whether the contempt committed is civil or criminal, does not affect the jurisdiction or the power of a court to
punish the same. ... (58 Phil. 271, 272).
For civil contempt, Section 7, Rule 71 of the Revised Rules of Court explicitly provides:
Sec. 7, Rule 71. Imprisonment until order obeyed. When the contempt consists in the omission
to do an act which is yet in the power of the accused to perform, he may be imprisoned by order
of a superior court until he performs it.
Thus, in the case of Harden vs. Director of Prisons (L-2349, 81 Phil. 741 [Oct. 22, 1948]), where petitioner was
confined in prison for contempt of court, this Court, in denying the petition and resolving the question of
petitioner's indefinite confinement, had the occasion to apply and clarify the aforequoted provision in the
following tenor:
The penalty complained of is neither cruel unjust nor excessive. In Ex-parte Kemmler 136 U.S.
436, the United States Supreme Court said that 'punishments are cruel when they involve
torture or a lingering death, but the punishment of death is not cruel, within the meaning of that
word as used in the constitution. It implies there something inhuman and barbarous, something
more than the extinguishment of life.
The punishment meted out to the petitioner is not excessive. It is suitable and adapted to its
objective; and it accords with section 7, Rule 64 of the Rules of Court which provides that "when
the contempt consists in the omission to do an act which is yet in the power of the accused to
perform, he may be imprisoned by order of a superior court until he performs it."
If the term of imprisonment in this case is indefinite and might last through the natural life of the
petitioner, yet by the terms of the sentence the way is left open for him to avoid serving any part
of it by complying with the orders of the court, and in this manner put an end to his
incarceration. In these circumstances, the judgment cannot be said to be excessive or unjust.
(Davis vs. Murphy [1947], 188 P., 229- 231.) As stated in a more recent case (De Wees [1948],
210 S.W., 2d, 145-147), 'to order that one be imprisoned for an indefinite period in a civil
contempt is purely a remedial measure. Its purpose is to coerce the contemner to do an act
within his or her power to perform. He must have the means by which he may purge himself of
the contempt . The latter decision cites Staley vs. South Jersey Realty Co., 83 N.J. Eq., 300, 90
A., 1042, 1043, in which the theory is expressed in this language:
In a "civil contempt" the proceeding is remedial, it is a step in the case the object
of which is to coerce one party for the benefit of the other party to do or to refrain
from doing some act specified in the order of the court. Hence, if imprisonment
be ordered, it is remedial in purpose and coercive in character, and to that end
must relate to something to be done by the defendant by the doing of which he
may discharge himself. As quaintly expressed, the imprisoned man carries the
keys to his prison in his own pocket (pp. 747-748).
Likewise. American courts had long enunciated these rulings:
The commitment of one found in contempt of a court order only until the contemnor shall have
purged himself of such contempt by complying with the order is a decisive characteristic of civil
contempt. Maggio v. Zeitz, 333 US 56, 92 L. ed. 476, 68 S Ct 401.
Civil or quasi-criminal contempt is contemplated by a statute providing that if any person refused
to obey or perform any rule, order, or judgment of court, such court shall have power to fine and
imprison such person until the rule, order, or judgment shall be complied with. Evans v. Evans,
193 Miss 468, 9 So 2d. 641. (17 Am. Jur. 2d.)
The reason for the inherent power of courts to punish for contempt is that respect of the courts guarantees the
stability of the judicial institution. Without such guarantee said institution would be resting on a very shaky
foundation (Salcedo vs. Hernandez, 61 Phil. 724; Cornejo vs. Tan, 85 Phil. 722),
Likewise, Atty. Pineda should be subject to disbarment proceedings under Section 27 of Rule 138 of the
Revised Rules of Court which provides:
Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds.—A member of
the bar may be removed or suspended from his office as attorney by the Supreme Court for any
deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by
reason of his conviction of a crime involving moral turpitude, or for any violation of the oath
which he is required to take before admission to practice, or for a willful disobedience of any
lawful order of a superior court, or for corrupt or willfully appearing as an attorney for a party to a
case without authority so to do. The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes malpractice.
The Court may suspend or disbar a lawyer for any conduct on his part showing his unfitness for the confidence
and trust which characterize the attorney and client relations, and the practice of law before the courts, or
showing such a lack of personal honesty or of good moral character as to render him unworthy of public
confidence (7 C.J.S. 733).
It is a well-settled rule that the statutory grounds for disbarment or suspension are not to be taken as a
limitation on the general power of the courts in this respect. The inherent powers of the court over its officers
cannot be restricted (In re Pelaez, 44 Phil. 567).
Finally, Atty. Pineda could be prosecuted for betrayal of trust by an attorney under Article 209 of the Revised
Penal Code. Said article provides:
Art. 209. Betrayal of must by an attorney or solicitor. Revelation of secrets.—In addition of the
proper administrative action , the penalty of prision correccional in its minimum period, or a fine
ranging from 200 to 1,000 pesos, or both shall be imposed upon any attorney-at-law or solicitor
(procurador judicial) who, by any malicious breach of professional duty or inexcusable
negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter
learned by him in his professional capacity (emphasis supplied).
The aforequoted criminal sanction for unprofessional conduct of an attorney is without prejudice to proper
administrative action, such as disbarment or suspension of attorneys (p. 503, Criminal Law Annotated, Padilla,
1972 Ed.).
Labor Arbiter Raymundo Valenzuela should be made to answer for having acted without or beyond his
authority in proper administrative charges. He could also be prosecuted before the Tanodbayan under the
provisions of the Anti-Graft Law. Independently of his liabilities as a government officer, he could be the subject
of disbarment proceedings under Section 27, Rule 138 of the Revised Rules of Court.
Atty. Benjamin Pineda could also be held liable under Section 4(b) of R.A. No. 3019 (Anti-Graft and Corrupt
Practices Act) which makes it unlawful for any person knowingly to induce or cause any public official to
commit any of the offenses defined in Section 3 of said act. Section 3 enumerates the corrupt practices which
public officers may be prosecuted for. Atty. Pineda knowingly induced or caused Labor Arbiter Valenzuela to
issue the questioned orders without or beyond the latter's authority and to which orders the former was not
entitled, considering that he was not the sole and proper representative.
The Manila Banking Corporation (Cubao Branch) per manifestation and motion dated October 28, 1983 and
reiterated on November 10, 1983, had transmitted to the NLRC the remaining balance of P417,380.64 and
P2,022.70 for the account of the Union and Atty. Pineda, respectively. This turnover of the aforecited amounts
is a sufficient compliance with Our restraining order and resolution of September 13, 1983 and hence, the
Manila Banking Corporation can no longer be liable for contempt of court.
Very recently, on August 23, 1984, respondent Union, thru Acting Administrator Ricardo Capuno, filed its
motion to drop Halili Bus Drivers and Conductors Union from the contempt charge in view of these reasons:
1. The Manila Bank has already turned over to the NLRC the amount of P59,716.14 which represents the
remaining balance of 5% earmarked for Union expenses incurred in the case aside from the amounts
deposited in escrow for the workers. The amount of P42,140.00 was spent legitimately by the Union for
administration purposes relative to the subject property. The Union asserts that it is ready and willing to
account for all expenses and withdrawals from the bank before the NLRC.
2. The alleged 5% donation of Atty. Pineda to the Union taken from the 35% attorneys' fees was given to and
received by then President Domingo Cabading alone, who thereafter left for the United States.
3. The 1% allocated for unknown claimants or those not previously listed in the amount of P9,596.18 can easily
be accounted for by the Union before the NLRC.
In the same motion, Mr. Capuno clarifies that with regard to attorneys' fees, Atty. Pineda made the Union
officers believe that he would be the one to pay the fees of Attys. Espinas and Lopez for which reason, the
35% increased fees was approved by the Union's board in good faith. The Union likewise confirms that Atty.
Pineda came into the picture only when he was assigned by Atty. Espinas in, 1965 to execute the CIR decision
which, thru Atty. Espinas handling, was upheld by this Court in L-24864 in 1968. The Union officers were
aware that Atty. Espinas was the principal counsel even after Atty. Pineda's assignment. They also knew of the
original contract for 20% attorney's fees which was increased to 35% by Atty. Pineda upon the arrangement
that with the increase, he would answer for the payment of Attys. Espinas and Lopez' fees and for necessary
representation expenses (p. 450, L-24864 rec.).
Acting on the aforesaid motion, this Court in its resolution of August 28, 1964, dropped the Union and its
officers from the within contempt charge (p. 455, L-24864 rec.).
WHEREFORE, ATTY. BENJAMIN PINEDA IS HEREBY FOUND GUILTY OF INDIRECT CONTEMPT OF
COURT FOR WHICH HE IS HEREBY SENTENCED TO IMPRISONMENT IN THE MANILA CITY JAIL UNTIL
THE ORDERS OF THIS COURT DATED SEPTEMBER 1 AND SEPTEMBER 13, 1983 ARE COMPLIED
WITH.
ATTY. BENJAMIN PINEDA IS ALSO DIRECTED TO SHOW CAUSE WHY HE SHOULD NOT BE
DISBARRED UNDER RULE 138 OF THE REVISED RULES OF COURT.
LET COPIES OF THIS RESOLUTION AND THE RESOLUTION OF OCTOBER 18, 1983 BE FURNISHED
THE MINISTRY OF LABOR AND THE TANODBAYAN FOR APPROPRIATE ACTION.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-36800 October 21, 1974
JORGE MONTECILLO and QUIRICO DEL MAR, petitioners,
vs.
FRANCISCO M. GICA, MAGNO S. GATMAITAN, JOSE N. LEUTERIO, and RAMON G. GAVIOLA, Justices
of the Court of Appeals, respondents. In Re Quirico del Mar, For Disciplinary action as member of the
Philippine Bar, respondent.
ESGUERRA, J.:p
Petitioner Atty. Quirico del Mar of Cebu City in G. R. No. L-36800, and as respondent in contempt proceedings
both in the Court of Appeals and in this Court, virtually focused the limelight on himself and relegated to
insignificance the limelight on himself and relegated to insignificance the principal issue raised in the petition
for certiorari to review the entitled "Francisco M. Gica vs. Hon. Santiago O. Tañada, et al" which was denied
due course by this Court's resolution dated May 14, 1973, for lack of merit.
Although the petition for certiorari has been denied, it becomes imperatively necessary to elucidate upon the
antecedents of this case even if Our only justification in so doing is to seek a reason or motive for the acts of
contempt perpetrated by respondent Quirico del Mar that might serve to lighten the enormity of his wrongdoing
as a member of the Bar.
As a result of an alleged slander committed by Jorge Montecillo on Francisco M. Gica (the former allegedly
calling the latter "stupid" or a "fool'), Mr. Gica filed a criminal complaint for oral defamation against Montecillo
(Criminal Case No. R-28782 in Branch VII of the Cebu City Court) and a case for damages arising from the
same incident (Civil Case No. R-13075 in Branch VI of the Cebu City Court). Montecillo was acquitted in
Criminal Case No. R-28782, and in Civil Case No. R-13075, the Cebu City Court found that Montecillo did not
call Gica "stupid". Finding the counter-claim of Montecillo meritorious, the City Court rendered judgment
against Gica for him to pay Montecillo five hundred pesos as moral damages, two hundred pesos as
compensatory damages and three hundred pesos as attorney's fees, plus costs.
Francisco Gica appealed from the decision of the City Court of Cebu in Civil Case No. R-13075 to the Court of
First Instance of Cebu presided by Hon. Santiago O. Tañada but the Court of First Instance upheld the
decision of the City Court. The case was then elevated to the Court of Appeals by petition for review by
petitioner Francisco M. Gica and it was docketed therein as CA-G.R. No. 46504-R.
The Fourth Division of the Court of Appeals in a decision penned by the Hon. Magno S. Gatmaitan and
concurred in by Associate Justices Jose N. Leuterio and Ramon G. Gaviola, Jr. (promulgated on Sept. 27,
1972), reversed the decision of the Court of First Instance of Cebu; ruled in favor of petitioner Gica on the
ground that the preponderance of evidence favored petitioner Francisco M. Gica on the principle that positive
must prevail over the negative evidence, and that "some words must have come from Montecillo's lips that
were insulting to Gica". The appellate court concluded that its decision is a vindication of Gica and instead,
awarded him five hundred pesos as damages.
It is from this point that trouble began for respondent Atty. Quirico del Mar when, as counsel for Montecillo, he
moved for a reconsideration of the Appellate Court's decision with a veiled threat by mentioning the provisions
of the Revised Penal Code on "Knowingly rendering unjust judgment" and "judgment rendered through
negligence", and the innuendo that the Court of Appeals allowed itself to be deceived. When the Appellate
Court denied the motion for reconsideration in its Resolution of October 24, 1972, it observed that the
terminology of the motion insinuated that the Appellate Court rendered an unjust judgment, that it abetted a
falsification and it permitted itself to be deceived. It admonished Atty. del Mar to remember that threats and
abusive language cannot compel any court of justice to grant reconsideration. Respondent del Mar persisted
and in his second motion for reconsideration, filed without leave of court, made another threat by stating that
"with almost all penal violations placed under the jurisdiction of the President of the Philippines, particularly
Articles 171, 204 and 205 of the Revised Penal Code, as Commander in Chief of the AFP, by virtue of the
proclamation of martial law, the next appeal that will he interposed, will be to His Excellency, the President of
the Philippines."
The Appellate Court in its resolution of Nov. 27, 1972, noticed that notwithstanding its admonition in its
resolution of Oct. 24, 1972, for Atty. del Mar to refrain from abusive language and threats, he reiterated his
threats, and that the Appellate Court, impelled to assert its authority, ordered respondent del Mar to explain
within 10 days (and to appear on January 10, 1973) why he should not be punished for contempt of court.
On December 5, 1972, respondent del Mar made a written explanation wherein he said that the Appellate
Court could not be threatened and he was not making any threat but only informing the Appellate Court of the
course of action he would follow. On the same date, respondent sent a letter to the Justices of the 4th Division
of the Court of Appeals informing them that he sent a letter to the President of the Philippines, furnishing them
a copy thereof, and requesting the Justices to take into consideration the contents of said letter during the
hearing of the case scheduled for January 10, 1973. Not content with that move, on December 8, 1972,
respondent sent another letter to the same Justices of the Court of Appeals wherein he reminded them of a
civil case he instituted against Justices of the Supreme Court for damages in the amount of P200,000 for a
decision rendered not in accordance with law and justice, stating that he would not like to do it again but would
do so if provoked. We pause here to observe that respondent del Mar seems to be of that frame of mind
whereby he considers as in accordance with law and justice whatever he believes to be right in his own opinion
and as contrary to law and justice whatever does not accord with his views. In other words, he would like to
assume the role of this Court, personally and individually, in the interpretation and construction of the laws,
evaluation of evidence and determination of what is in accordance with law and justice.
The documented incidents as narrated in the Appellate Court's Resolution of March 5, 1973, cannot more
eloquently depict the very manifest and repeated threats of respondent del Mar to bludgeon the Justices of the
Fourth Davison into reconsidering its decision which happened to be adverse to respondent's client.
Respondent del Mar, instead of presenting lucid and forceful arguments on the merits of his plea for a
reconsideration to convince the Justices of the Fourth Division of the alleged error in their decision, resorted to
innuendos and veiled threats, even casting downright aspersion on the Justices concerned by insinuating that
for their decision they could be criminally and civilly liable for knowingly rendering unjust judgment, or doing it
through ignorance.
We quote with approval this portion of the Appellate Court's Resolution (March 5, 1973):
A just man can never be threatened, p. 145, rollo, is not at all true; any man, just or unjust, can
be threatened; if he is unjust, he will succumb, if he is just, he will not, but the offense is
committed, whether the threats do or do not succeed. As to his (respondent del Mar's reference
to the New Society, p. 150, in his letter to his Excellency, complaining against those justices, let
it be said that precisely it was under the Former Society that there had been so much disrespect
for the constituted authorities, there was abuse, worse than abuse, there was arrogant abuse, of
the so-called civil liberties, against the authorities, including the courts, not excluding even the
President; it is this anarchy that is the program to cure in the New.
This Resolution of the Appellate Court of March 5, 1973, fittingly concluded that "counsel del Mar is found
guilty of contempt and condemned to pay a fine of P200.00 and ordered suspended from the practice of law
and pursuant to Sec. 9 of Rule 139, let certified copies of these papers be elevated to the Honorable Supreme
Court". We upheld the Court of Appeals and gave full force and effect to this order of suspension from the
practice of law when in Our resolution dated Nov. 19, 1973, the Judicial Consultant of this Court was directed
to circularize all courts about the order of the Court of Appeals suspending Atty. Quirico del Mar from the
practice of law.
Not satisfied with the wrong that he had already done against Associate Justices Magno S. Gatmaitan, Jose N.
Leuterio and Ramon Gaviola, Jr., respondent del Mar sued the three Justices for damages in Civil Case No. R13277 of the Court of First Instance of Cebu, trying to hold them liable for their decision in CA-G.R. No. 46504R; that the case for damages (R-13277)was terminated by compromise agreement after Mr. del Mar himself
moved for the dismissal of his complaint apologized to the Court of Appeals and the Justices concerned, and
agreed to pay nominal moral damages in favor of the defendants-justices. This is the undeniable indication that
respondent del Mar did not only threaten the three Justices of the Appellate Court but he actually carried out
his threat, although he did not succeed in making them change their minds in the case they decided in
accordance with the exercise of their judicial discretion emanating from pure conviction.
To add insult to injury, respondent del Mar had the temerity to file his motion on October 10, 1973, before Us,
asking that his suspension from the practice of law imposed by the Court of Appeals be ignored because of the
amicable settlement reached in Civil Case No. R-13277 of the Court of First Instance of Cebu which was the
action for damages filed against the three Justices of the Appellate Court.
Respondent del Mar's ire at the Appellate Court, fanned by the wind of frustration, turned against Us when We
denied on May 14, 1973, his petition for review on certiorari of the decision of the Appellate Court, G. R. No. L36800, for on May 25, 1973, he filed his motion for reconsideration and wrote a letter addressed to the Clerk of
this Court requesting the names of the Justices of this Court who supported the resolution denying his petition,
together with the names of the Justices favoring his motion for reconsideration. This motion for reconsideration
We denied for lack of merit in Our resolution dated June 15, 1973. He, then, filed a manifestation dated July 1,
1973, before Us, stating brazenly, among other things, "I can at this time reveal to you that, had your Clerk of
Court furnished me with certified true copies of the last two Resolutions of the Supreme Court confirming the
decision of the Court of Appeals in the case entitled Francisco M. Gica vs. Jorge Montecillo, I would have filed
against the Justices supporting the same, civil and criminal suit as I did to the Justices of the Court of Appeals
who, rewarding the abhorent falsification committed by Mr. Gica, reversed for him the decisions of the City
Court and the Court of First Instance of Cebu, not with a view to obtaining a favorable judgment therein but for
the purpose of exposing to the people the corroding evils extant in our Government, so that they may well
know them and work for their extermination" (Emphasis supplied. In one breath and in a language certainly not
complimentary to the Appellate Court and to Us, respondent del Mar again made his veiled threat of retribution
aimed at the Appellate Court and at Us for Our judicial acts in CA-G. R. No. 46504-R and G. R. No. L-36800.
Our immediate reaction to this manifestation, dictated by the impulse of placing on a pedestal beyond
suspicion the integrity and honor of this Court and that of any of our other courts of justice, was to require by
Resolution of July 16, 1973, respondent del Mar to show cause why disciplinary action should not be taken
against him for the contemptuous statements contained in his manifestation.
At this juncture, We pause to reexamine the act of the Appellate Court in CA-G. R. No. 46504-R and our own
in G. R. No. L-36800 to determine what error we might have committed to generate such a vengeful wrath of
respondent del Mar which drove him to make his contemptuous statements.
The crucial issue in the case of oral defamation filed by Francisco M. Gica against Jorge Montecillo is as to
what was the statement really uttered by Montecillo on the occasion in question — "binuang man gud na" (That
act is senseless or done without thinking) or "buang man gud na siya" (He is foolish or stupid). If the statement
uttered was the former, Montecillo should be exonerated; if the latter, he would be liable. The Appellate Court
on evaluating the evidence ruled that the preponderance thereof favored Gica "on the principle that the positive
evidence must prevail over the negative" and, therefore, what was really uttered by Montecillo on that occasion
was "buang man gud na siya" (He is foolish or stupid), thus making him liable for oral defamation. When We
denied in G. R. No. L-36800 the petition for review on certiorari of the Appellate Court's decision in CA-G. R.
No. 46504-R, We did so because We could find no reason for disturbing the Appellate Court's finding and
conclusion on the aforementioned lone question of fact which would warrant overturning its decision.
On July 13, 1973, Our resolution of May 14, 1973, denying the petition for review on certiorari of the decision of
the Appellate Court in CA-G. R. No. 46504-R, became final and executory and the Court of Appeals was so
informed.
To Our resolution of July 16, 1973, requiring respondent del Mar to show cause why he should not be
disciplined for his statements contained in his manifestation of July 1, 1973, he submitted an explanation dated
August 1, 1973, wherein he stated that "..., he is attaching hereto the criminal case he filed with the President
of the Philippines (copy marked as Annex "A") and the civil case he instituted in the Court of First Instance of
Cebu (copy marked as Annex "B") against Justices Magno S. Gatmaitan, Jose N. Leuterio and Ramon G.
Gaviola, Jr., which embody the corroding evils he complained of as extant in the Government needing
correction. He would have followed suit were it not for the fact that he is firmly convinced that human efforts in
this direction will be fruitless. As manifested, he, therefore, decided to retire from a life of militancy to a life of
seclusion leaving to God the filling-up of human deficiencies" (Emphasis supplied).
This so-called explanation is more, in its tenor, of a defiant justification of his contemptuous statements
contained in the manifestation of July 1, 1973. Its contents reveal a continued veiled threat against the Justices
of this Court who voted to deny del Mar's petition for review on certiorari of the decision of the Court of Court
Appeals in CA-G R. No. 46504-R.
Our resolution of September 4, 1973, required respondent Atty. Quirico del Mar to appear personally at the
hearing of his explanation on November 5, 1973. On September 26, 1973, respondent filed an additional
explanation with this Court, wherein he stated, among other things: "Graft, corruption and injustice are rampant
in and outside of the Government. It is this state of things that convinced me that all human efforts to correct
and/or reform the said evils will be fruitless and, as stated in my manifestation to you, I have already decided to
retire from a life of militancy to a life of seclusion, leaving to God the filling-up of human deficiencies."
Again We noticed that the tenor of this additional explanation is a toned-down justification(as compared to his
explanation of August 1, 1973) of his previous contemptuous statements without even a hint of apology or
regret. Respondent is utilizing what exists in his mind as state of graft, corruption and injustice allegedly
rampant in and outside of the government as justification for his contemptuous statements. In other words, he
already assumed by his own contemptuous utterances that because there is an alleged existence of rampant
corruption, graft, and injustice in and out of the government, We, by Our act in G. R. No. L-36800, are among
the corrupt, the grafters and those allegedly committing injustice. We are at a complete loss to follow
respondent del Mar's logic and We certainly should, with understanding condescension, commiserate in the
pitiable state of mind of a brother in the legal profession who seems to have his reasoning and sense of
proportion blurred or warped by an all-consuming obsession emanating from a one-track mind that only his
views are absolutely correct and those of others are all wrong.
When this Court in the resolution dated November 19, 1973, directed the Judicial Consultant to circularize to all
courts concerning the order of the Court of Appeals suspending Atty. Quirico del Mar from the practice of law,
respondent del Mar filed a motion for reconsideration on December 12, 1973, requesting Us to reconsider said
directive. In Our resolution dated December 17, 1973, respondent del Mar, after he had been interpellated by
the Court, was given a period of five days to submit a memorandum in support of his explanation. In view of
respondent's manifestation that there was no need for further investigation of the facts involved, in accordance
with Section 29 of Rule 138, We resolved that the matter be deemed submitted for decision.
In the memorandum entitled "Explanation" dated December 20, 1973, respondent del Mar stated that he
suffered repeated strokes of high blood pressure which rendered him dizzy and unstable mentally and
physically; that his sight is blurred and his reasoning is faulty; he easily forgets things and cannot readily
correlate them; that for any and all mistakes he might have committed he asked for forgiveness; he reiterated
that "blunders" were committed by the Court of Appeals in its decision and that the Justices thereof knowingly
rendered the same in violation of Article 204 of the Penal Code; he persisted in his view that the Court of
Appeals committed an error in its decision; justified his act of invoking Article 204 of the Penal Code in trying to
make the Appellate Justices liable; that he was high in his academic and scholastic standing during his school
days; that "with all the confusion prevailing nowadays, the undersigned has decided for reasons of sickness
and old age to retire from the practice of law. He hopes and expects that, with the approval thereof by the
Supreme Court, he could have himself released from the obligation he has contracted with his clients as
regards all his pending cases."
It is Our observation that the tenor of this explanation although pleading mental and physical ailment as a
mitigation of the contemptuous acts, is still that of arrogant justification for respondent's previous statements.
We quote:
The undersigned was asked if he had not filed against the Justices of the Supreme Court a case
for damages against them. He answered in the affirmative, but the case was dismissed by
Judge Villasor, of the Court of First Instance of Cebu, because of an American ruling that a
justice of the Supreme Court of the Philippines cannot be civilly held liable. The ruling cited was
rendered during the American regime in the Philippines which was still subject to the jurisdiction
of the American laws. But the Philippines is now independent and Article 204 of the Penal Code
still remains incorporated therein for observance and fulfillment. Up to now, there is not yet any
definite ruling of the Supreme Court thereon
While still persistently justifying his contemptuous statements and at the same time pleading that his physical
and mental ailment be considered so that We may forgive respondent del Mar he shrewdly stated at the end of
his explanation that he has decided for reasons of sickness and old age to retire from the practice of law, in
practical anticipation of whatever penalty We may decide to impose on him and thus making it appear that he
has voluntarily done so with honor and in complete evasion of whatever this Court may decide to do in this
case.
With full realization that a practicing lawyer and officer of the court facing contempt proceedings cannot just be
allowed to voluntarily retire from the practice of law, an act which would negate the inherent power of the court
to punish him for contempt in defense of its integrity and honor, We resolve, by resolution of January 10, 1974,
to deny said prayer of Atty. del Mar without prejudice to his making arrangement directly with his clients.
To aged brethren of the bar it may appear belated to remind them that second only to the duty of maintaining
allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the
Philippines, is the duty of all attorneys to observe and maintain the respect due to the courts of justice and
judicial officers (Sec. 20 (b) Rule 138, Rules of Court). But We do remind them of said duty to emphasize to
their younger brethren its paramount importance. A lawyer must always remember that he is an officer of the
court exercising a high privilege and serving in the noble mission of administering justice.
It is the duty of the lawyer to maintain towards the courts a respectful attitude (People vs. Carillo, 77 Phil. 572).
As an officer of the court, it is his duty to uphold the dignity and authority of the court to which he owes fidelity,
according to the oath he has taken. Respect for the courts guarantees the stability of our democratic
institutions which, without such respect, would be resting on a very shaky foundation. (In re Sotto 82 Phil. 595).
As We stated before:
We concede that a lawyer may think highly of his intellectual endowment. That is his privilege.
And, he may suffer frustration at what he feels is others' lack of it. This is his misfortune. Some
such frame of mind, however, should not be allowed to harden into a belief that he may attack a
court's decision in words calculated to jettison the time-honored aphorism that courts are the
temples of right. He should give due allowance to the fact that judges are but men; and men are
encompassed by error, fettered by fallibility.
... To be sure, lawyers may come up with various methods, perhaps much more effective, in
calling the Court's attention to the issues involved. The language vehicle does not run short of
expressions, emphatic but respectful, convincing but not derogatory, illuminating but not
offensive (Rheem of the Philippines vs. Ferrer G. R. No. L-22979, June 26, 1967; 20 SCRA 441,
444-445)
Criminal contempt has been defined as a conduct that is directed against the dignity and authority of the court
or a judge acting judicially. It is an act obstructing the administration of justice which tends to bring the court
into disrepute or disrespect (17 C. J. S. 7).
We have held that statements contained in a motion to disqualify a judge, imputing to the latter conspiracy or
connivance with the prosecutors or concocting a plan with a view to securing the conviction of the accused,
and implicating said judge in a supposed attempt to extort money from the accused on a promise or assurance
of the latter's acquittal, all without basis, were highly derogatory and serve nothing but to discredit the judge
presiding the court in an attempt to secure his disqualification. Statements of that nature have no place in a
court pleading and if uttered by a member of the bar, constitute a serious disrespect. We said:
As an officer of the court, it is his sworn and moral duty to help build and not
destroy unnecessarily the high esteem and regard towards the court so essential to the proper
administration of justice(Emphasis supplied). (People vs. Carillo, 43 O.G. No. 12, p. 5021; De
Joya et al vs. C. F. I. of Rizal and Rilloraza 52 0. G. 6150).
As already stated, the decision of the Court of Appeals in CA-G. R. No. 46504-R was based on its evaluation
of the evidence on only one specific issue. We in turn denied in G. R. No. L-36800 the petition for review
on certiorari of the decision because We found no reason for disturbing the appellate court's finding and
conclusion. In both instances, both the Court of Appeals and this Court exercised judicial discretion in a case
under their respective jurisdiction. The intemperate and imprudent act of respondent del Mar in resorting to
veiled threats to make both Courts reconsider their respective stand in the decision and the resolution that
spelled disaster for his client cannot be anything but pure contumely for said tribunals.
It is manifest that respondent del Mar has scant respect for the two highest Courts of the land when on the
flimsy ground of alleged error in deciding a case, he proceeded to challenge the integrity of both Courts by
claiming that they knowingly rendered unjust judgment. In short, his allegation is that they acted with intent and
malice, if not with gross ignorance of the law, in disposing of the case of his client.
We note with wonder and amazement the brazen effrontery of respondent in assuming that his personal
knowledge of the law and his concept of justice are superior to that of both the Supreme Court and the Court of
Appeals. His pretense cannot but tend to erode the people's faith in the integrity of the courts of justice and in
the administration of justice. He repeatedly invoked his supposed quest for law and justice as justification for
his contemptuous statements without realizing that, in seeking both abstract elusive terms, he is merely
pursuing his own personal concept of law and justice. He seems not to comprehend that what to him may be
lawful or just may not be so in the minds of others. He could not accept that what to him may appear to be right
or correct may be wrong or erroneous from the viewpoint of another. We understand that respondent's mind
delves into the absolute without considering the universal law of change. It is with deep concern that We view
such a state of mind of a practicing lawyer since what We expect as a paramount qualification for those in the
practice of law is broadmindedness and tolerance, coupled with keen perception and a sound sense of
proportion in evaluating events and circumstances.
For a lawyer in the twilight of his life, with supposed physical and mental ailments at that, who dares to
challenge the integrity and honor of both the Supreme Court and Court of Appeals, We have nothing but
commiseration and sympathy for his choosing to close the book of his long years of law practice not by
voluntary retirement with honor but in disciplinary action with ignominy and dishonor. To those who are in the
practice of law and those who in the future will choose to enter this profession, We wish to point to this case as
a reminder for them to imprint in their hearts and minds that an attorney owes it to himself to respect the courts
of justice and its officers as a fealty for the stability of our democratic institutions.
WHEREFORE, the resolution of the Court of Appeals in CA-G.R. No. 46504-R, dated March 5, 1973,
suspending Atty. Quirico del Mar from the practice of law, as implemented by Our resolution of November 19,
1973, is hereby affirmed.
Respondent Atty. Quirico del Mar for his misconduct towards the Supreme Court, shall be, as he is hereby,
suspended from the practice of law until further orders of this Court, such suspension to take effect
immediately. (In re Almacen, No. L-27654, Feb. 18, 1970, 31 SCRA, p. 562.)
The Judicial Consultant of this Court is directed to circularize all courts and the Integrated Bar of the
Philippines regarding the indefinite suspension of Atty. Quirico del Mar from the practice of law.
SO ORDERED.
Republic of the Philippines
Supreme Court
Manila
EN BANC
VALERIANO F. NUEZ,
Complainant,
A.M. No. RTJ-06-1984
(Formerly OCA IPI No. 05-2255-RTJ)
Present:
- versus -
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
CORONA,
CARPIO MORALES,*
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, and
BERSAMIN, JJ.
JUDGE FRANCISCO B. IBAY, Regional
Promulgated:
Trial Court,
Branch 135, Makati City,
Respondent.
June 30, 2009
x-----------------------------------------------------------------------------------------x
DECISION
PERALTA, J.:
Before this Court is a Sinumpaang Salaysay[1] dated April 22, 2005 filed by complainant Valeriano F. Nuez with the Office
of the Court Administrator (OCA) against respondent Judge Francisco B. Ibay of Branch 135 of the Regional Trial Court
(RTC) of Makati City, charging the latter with grave abuse of authority.
Complainant alleged the following in his complaint:
Complainant was a driver at the Engineering Department of the Makati City Hall. On April 1, 2005, at around five oclock in
the afternoon, he parked the government vehicle which he was driving, an L-300 van with plate number SFN-767, at the
basement of the Makati City Hall and left the key in their office because drivers were not allowed to bring such vehicles
home. After the flag ceremony on April 4, 2005, complainant went to the Office of the Engineering Department where he
received an Order[2] from respondent Judge, directing the former to appear before the latter on that same day at ten oclock in
the morning and to explain why he occupied the parking space allotted for respondent Judge.
When complainant appeared before respondent Judge, the latter asked him if he had a lawyer. Although complainant replied
in the negative, respondent Judge still further questioned the complainant. Complainant apologized and explained that he
did not intend to park in respondent Judges space, and that he did not know that such space was reserved for respondent
Judge.
However, respondent Judge refused to accept complainants apology and, instead, found the latter guilty of direct contempt
of court for using the formers parking space, sentencing complainant to five (5) days imprisonment and a fine of one
thousand pesos (P1,000.00).[3] Respondent then ordered the jail guard to bring complainant to the City Jail in Fort Bonifacio,
where the latter was incarcerated for two days. On April 5, 2005, complainant was released after filing a Motion for
Reconsideration[4] and paying the fine of P1,000.00.
In his Comment[5] dated June 27, 2005, respondent Judge alleged that judges were assigned their respective parking spaces
in the basement of the City Hall of Makati City. Respondent Judge, in particular, placed a marker with his name at the space
allotted to him, facilitating the orderly parking which allowed him to work as early as seven oclock in the morning, almost
daily. He stated that he already programmed his activities to maintain and/or improve his present position as the third ranking
judge for the year 2004 among the RTC judges of Makati City.
Respondent Judge claimed that on the date and time in question, he was set to dispose a criminal case, and over the weekend,
had even conceptualized the matter on how to administer the proceedings to accomplish the requirements of that criminal
case. However, the inconsiderate and improper parking of complainant disturbed his train of thought as to the intended
disposition of his cases.
In addition, respondent Judge recounted that there were similar incidents which happened to him. Sometime in August 2002,
Allan Macrohon, Rodrigo Gonzales, and Redeem Ongtinco caused an overflow of water into the chambers of respondent
Judge, damaging his computer system at the old RTC. On March 18, 2005, Venancio P. Inonog, security-driver of the Chief
of the Business Permit Section of Makati City, also parked his vehicle at respondents parking slot. On April 12, 2005, John
Panaligan, electrician of the MakatiCity Hall, erroneously switched off the electrical outlets of respondent Judges sala.
Respondent Judge cited Macrohon, Gonzales, Ongtinco, Inonog, and Panaligan in contempt on the ground that they
disrupted respondent Judges performance of official duties. In turn, Macrohon et al., Inonog, and Panaligan all filed their
respective administrative complaints[6] against respondent Judge.
On November 25, 2005, the OCA recommended that the instant complaint be redocketed as a regular administrative matter,
and that respondent Judge be fined ten thousand pesos (P10,000.00) for grave abuse of authority.[7]
In its Resolution[8] dated March 15, 2006, the Court referred the administrative case to Associate Justice Renato Dacudao
of the Court of Appeals for investigation, report and recommendation within ninety (90) days from receipt of the records.
On June 22, 2006, the Investigating Justice issued an Order setting the said case for hearing.
The Investigating Justice submitted a Partial Report on September 6, 2006 in which he stated that he had just finished
receiving the evidence for the parties and required them to submit their respective memorandum. He also asked for an
extension of two months from September 20, 2006, or until November 20, 2006, within which to submit his Final
Investigation, Report and Recommendation.
In his Investigation, Report and Recommendation dated September 22, 2006, the Investigating Justice concluded:
Based on the testimonies of both parties and their witnesses, the undersigned Investigating Justice believes
that the complainant was not the person who parked the van on respondent judges parking slot, but rather
that it was Oscar de los Reyes. Complainant during the hearing maintained that he parked the L-300 van in
the middle, and not on the side, which was the parking slot assigned to respondent judge. Although the
witness, Oscar de los Reyes testified that, after buying merienda (on April 2, 2005), he parked the van at
the same place, he failed to explain where exactly he parked the van. Thus, we cannot discount the
possibility that De los Reyes might have parked the van at the same place, meaning the basement parking,
but not necessarily on the very same spot or slot.
But whether it was complainant or it was Oscar de los Reyes who parked the van, it would not change or
alter the fact that respondent judge committed grave abuse of authority in holding the complainant in
contempt of court for parking on his slot. Respondent judge himself declared that had he known that it was
De los Reyes who parked the van he would not have asked complainant to explain, but instead De los
Reyes. x x x In addition, why still subject complainant to further humiliation by having him handcuffed,
like a common criminal, after citing him for contempt of court? Obviously, respondent judge was really
bent on citing for contempt of court the person responsible for doing the parking in the parking slot which
he believed, (perhaps erroneously), was his assigned parking slot. Obviously, too, there is a streak of cruel
sadism, of pettiness or meanness, in respondent judges character, as it would seem that he could not refrain
from exhibiting such excesses as causing the manacling (apparently in open court at that), of an
unintentional offender like the complainant herein, who had the misfortune to injure, if innocuously, his
wounded pride and ego as a judge.
xxxx
In this case, the undersigned Investigating Justice finds no reason why complainants act of parking on the
parking slot of respondent judge would constitute contempt of court. It may have caused respondent judge
some delay in immediately parking his car that morning of April 4, 2005, but to say that the one-hour
disruption delayed the administration of justice would be stretching the logic of the situation too much.
According to respondent judge, time is of the essence in his decision-making program. But the irony of it
is that the amount of time respondent judge allotted in hearing the explanation as well as the motion for
reconsideration of complainant in this case must have cost him more than the one hour he claimed he lost.
As justification for his actions, respondent judge said that because of the prior or previous incidents he was
convinced that the particular incident was intentional and deliberate. Such reasoning is unacceptable. There
was no showing that complainant or Oscar de los Reyes intentionally or deliberately parked the van on
respondent judges slot in order to purposely annoy or irk him. And, even if it did annoy or irk respondent
judge, he should remember that, the power to cite persons in contempt is at his disposal for purposes that
are strictly impersonal, because that power is intended as a safeguard not for the judges as persons, but for
the official functions that they exercise or perform.
Besides, it was unfair for respondent judge to assume that complainant knew of the prior or previous
incident, where respondent judge cited a driver for contempt of court for parking on his parking slot, just
because both drivers are employees of the Makati City Hall; this is clearly a non-sequitur. And, assuming
that complainant knew of the said incident, this alone would not prove that what he did was intentional or
deliberate.
Neither would respondent judges allegation, that someone, an unknown person inside, is orchestrating the
filing of these cases against him for the chief or sole purpose of harassing him, exonerate him of the charge.
To begin with, he failed to present any proof to substantiate this allegation. All he could point to are mere
coincidences or speculations. What is more, respondent judge seemed to have taken some kind of
pleasurable satisfaction in citing these complainants in contempt of court simply for parking on the slot
which he assumed was allot(t)ed to him; or for switching the lights off in his office; or for accidentally
drenching his computers. He, in fact, even admitted having issued all these Orders to punish the
complainants in these cases for disrupting or disturbing him in performing his duties; hence, he cannot
blame these persons for filing a case or cases against him, as these persons must have felt aggrieved by his
actuations in precipitately citing them for contempt. Nor can he accuse an unknown person of orchestrating
all of these. All the cases or incidents he mentioned only strengthened the undersigned Investigating Justices
perception that respondent judge has an unseemly propensity for abusing the power granted to him by law.
Respondent judge ought to be reminded that as a member of the bench, he is expected to take recourse to
the contempt power only as a last resort, when all other alternative courses of action are exhausted in the
pursuit of maintaining respect for the court and its processes; and that when a less harsh remedy can be
availed of by the judge, he should at all times hesitate to use his contempt power, and instead opt for the
less harsh remedy.
Thus, if respondent judge wanted to teach complainant a lesson, he could have done so by merely
reprimanding or admonishing him considering that when complainant appeared before respondent judge he
immediately begged for forgiveness.
Respondent judges act of citing complainant in contempt of court for parking on his slot is a violation of
Rule 2.01 of the Code of Judicial Conduct, which provides that A judge should so behave at all times as to
promote public confidence in the integrity and impartiality of the judiciary.
xxxx
For the reasons heretofore stated, the undersigned Investigating Justice finds respondent judge guilty of
grave abuse of authority for using contempt as a retaliatory measure aggravated in this case by a streak of
cruel sadism, of pettiness or meanness, in respondents character, as elsewhere indicated.
RECOMMENDATIONS
Notwithstanding the finding of guilt of the respondent judge, the undersigned Investigating Justice deems
that certain circumstances must be considered in imposing the proper penalty.
It must be noted that respondent judge has a very good performance record. His strong adherence to the
Supreme Courts reminder that, members of the judicial branch judges and judicial personnel alike to be
conscientious, diligent and thorough in the performance of their functions. At all time(s) they must observe
the high standard of public service required of them. is quite admirable and commendable. Also, he already
admitted his error in declaring complainant in contempt of court. All these may be taken as mitigating
circumstances which could alleviate his culpability.
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the undersigned Investigating Justice hereby
recommends that the respondent Judge be fined in the amount of PESOS: FIVE THOUSAND
(Php5,000.00) with a stern warning that a repetition of the same or similar acts in the future will be dealt
with more severely.
In a Resolution dated February 7, 2007, the Court referred the administrative matter to the OCA for evaluation, report and
recommendation, within thirty (30) days from notice, on the propriety of consolidating the instant case with the other
administrative cases filed against respondent Judge.
In its Memorandum dated March 30, 2007, the OCA observed that:
After a cautious evaluation of the entire records of the instant case, this Office agrees with the Investigating
Justices findings that respondent committed grave abuse of authority in citing complainant in contempt of
court. Respondent wrongly argues that complainant delayed the administration of justice when he
improperly parked the van on respondents assigned slot which disrupted his scheduled disposition of cases.
Respondents reaction to the complainants mistake is exaggerated. The complainants act may have caused
inconvenience to the respondent but it could not delay the administration of justice.
There is no evidence to show that complainant Nuez parked the van at respondents slot purposely to annoy
him or he was aware of the previous similar incident which involved Venancio Inonog. In fact, complainant
explained that his mistake was not deliberate and he asked for respondents forgiveness. Respondent
likewise failed to substantiate his allegation that someone is orchestrating the filing of administrative cases
against him for the sole purpose of harassing him. The other complainants cannot be faulted for filing the
said cases as they may have felt aggrieved by respondents actuations in citing them for contempt for flimsy
and personal reasons.
xxxx
Respondents order dated April 4, 2005 citing complainant Nuez in contempt of court betrays not only his
ignorance as regards the Rule on Contempt of Court, but it also shows his despotic nature. The fact that
respondent had also declared Inonog, Panaligan, Macrohon and two others in contempt of court shows that
he does not possess the judicial temperament which a judge should possess. x x x
The power to punish for contempt must be used sparingly with due regard to the provisions of the law and
the constitutional rights of the individual. It should be exercised strictly for the preservation of the dignity
of the court and its proceedings. In the instant complaint, respondent exercised the said power in an arbitrary
and oppressive manner and for purposes that are purely personal.
The exacting standards of conduct demanded from judges are designed to promote public confidence in the
integrity and impartiality of the judiciary. When the judge himself becomes the transgressor of the law
which he is sworn to apply, he places his office in disrepute, encourages disrespect for the law and impairs
public confidence in the integrity of the judiciary itself.
After a cautious evaluation of the entire records of the instant case, this Office finds the recommended
penalty not commensurate to respondents offense. This is not respondents first offense. He had been
administratively sanctioned for grave abuse of authority and was ordered by the Court to pay a fine on June
21, 2006 in the case of Panaligan v. Ibay docketed as A.M. No. RTJ-06-1972. In the case filed by Allan
Macrohon, et al., docketed as A.M. No. RTJ-06-1970, respondent was ordered by the Court to pay a fine
of P25,000.00 for gravely abusing his authority and was also warned that a repetition of the same or similar
offense shall be dealt with more severely. Respondent has another pending case filed by Venancio Inonog
for the same charge. In the said case of Allan Macrohon, et al. against respondent, the Court stated that the
similarity of the charges in these administrative complaints against him betrays a deplorable proclivity for
the use of contempt powers at the slightest provocation.
Taking into consideration that the instant complaint is a third transgression of a similar offense, this Office
recommends that respondent Judge Francisco B. Ibay be SUSPENDED for FOUR (4) MONTHS with
STERN WARNING that a repetition of similar act shall be dealt with more severely.
In its Resolution dated July 25, 2007, the Court required the parties to manifest whether they were willing to submit the
case for decision on the basis of the pleadings/records already filed and submitted within 30 days from notice.
In its Resolution dated November 21, 2007, the Court deemed as served upon the complainant the copy of the Resolution
dated July 25, 2007 which was sent to complainant, but was returned unserved with postmans notation RTS-Unknown.
In its Resolution dated March 3, 2008, after failure of respondent Judge to manifest whether he was willing to submit the
case for decision on the basis of the pleadings/records already filed and submitted as required in the Resolution dated July
25, 2007, the Court deemed the case for decision.
The issue which lies before this Court is whether respondent Judge can be held administratively liable for grave abuse of
authority in citing complainant for contempt of court.
The power to hold a person in direct contempt is provided for under Section 1, Rule 71 of the Rules of Court, which reads:
SECTION 1. Direct contempt punished summarily. A person guilty of misbehavior in the presence of or so
near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the
court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe
an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such
court and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10)
days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not
exceeding two hundred pesos or imprisonment not exceeding one (1) day or both, if it be a lower court.
In Sison v. Caoibes, Jr.,[9] the Court held that the power to declare a person in contempt of court, however plenary as it may
seem, must be exercised judiciously and sparingly. A judge should never allow himself to be moved by pride, prejudice,
passion or pettiness in the performance of his duties.
Respondent Judge averred that someone was out to harass and embarrass him, which was why six different complaints were
simultaneously filed against him, prompting him to cite the complainants for contempt of court. He explained that the
individual acts of the complainants were contemptuous, including herein complainants improper parking, because they
disrupted the speedy administration of justice.
The Court disagrees. Aside from the fact that respondent Judge failed to substantiate his allegation, the Court does not see
how the improper parking by complainant, or by a certain Oscar dela Cruz, could, even in the remotest manner, disrupt the
speedy administration of justice. At most, it would cause respondent Judge inconvenience or annoyance, but still, this does
not fall under any of the aforementioned acts for which a person could be cited for contempt. Neither does it appear from
the records, nor from the evidence presented, that complainant intended any disrespect toward respondent Judge. In fact,
upon being summoned, complainant immediately apologized for his mistake.
In Oclarit v. Paderanga,[10] the Court held that the power to punish for contempt must be exercised on the preservative, not
vindicative, principle and on the corrective and not retaliatory idea of punishment. Courts must exercise the power to punish
for contempt for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons,
but for the functions that they exercise.
By the time the instant complaint was filed, respondent Judge had already cited six persons for contempt, including herein
complainant. Worse, respondent Judge immediately detained complainant, thereby preventing him from resorting to the
remedies provided under Section 2, Rule 71 of the Rules of Court, cited as follows:
SEC.2. Remedy therefrom. The person adjudged in direct contempt by any court may not appeal
therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment
shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court
which rendered the judgment and conditioned that he will abide by and perform the judgment should the
petition be decided against him.
Such abusive behavior on the part of respondent Judge fails to show his integrity, which is essential not only to the proper
discharge of the judicial office, but also to his personal demeanor. [11] In addition, Sections 1 and 2, Canon 2 of the New
Code of Judicial Conduct for the Philippine Judiciary[12] state that:
SECTION 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be
so in the view of a reasonable observer.
SEC. 2. The behavior and conduct of judges must reaffirm the peoples faith in the integrity of the judiciary.
Justice must not merely be done but must also be seen to be done.
The Court believes that the frequency of his offenses already constitutes gross misconduct. Gross has been defined as
flagrant and shameful, while misconduct means a transgression of some established and definite rule of action, willful in
character, improper or wrong behavior.[13] Under Section 8(3), Rule 140 of the Rules of Court, gross misconduct is classified
as a serious offense punishable under the sanctions enumerated under the same Rule, Section 11 of which provides that:
SEC. 11. Sanctions. If the respondent is guilty of a serious charge, any of the following sanctions may be
imposed:
1.
Dismissal from the service, forfeiture of all or part of the benefits as the Court
may determine and disqualification from reinstatement or appointment to any public office,
including government-owned or controlled corporations. Provided, however, that the
forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from office with salary and other benefits for more than three (3), but not exceeding six (6)
months; or
3. A fine of more than P20,000.00, but not exceeding P40,000.00.
In previous cases wherein judges cited persons for contempt without legal basis, the Court has found respondents guilty of
grave abuse of authority and usually imposed a penalty of reprimand with a warning, or a fine of P5,000.00 with a
warning.[14]
However, respondent Judge has been twice administratively sanctioned by the Court for the same offense. In Panaligan v.
Ibay,[15] respondent Judge was found to have abused his authority in citing a person for contempt without sufficient legal
basis, for which he was sentenced to pay a fine of P5,000.00, with a stern warning that a repetition of the same or similar
acts in the future would be dealt with more severely. In Macrohon v. Ibay,[16] he was again found liable for the same offense
and sentenced to pay a fine of P25,000.00, with a stern warning that a repetition of the same or similar acts would be dealt
with more severely.
In view of respondent Judges penchant for citing persons for contempt even without legal basis, the Investigating Justice
recommended that he be ordered to pay a fine of P5,000.00 with a stern warning, while the OCA recommended that he be
suspended for four (4) months with a stern warning. Considering that respondent Judge had opted to avail himself of the
Optional Retirement under Republic Act (R.A.) No. 910, as amended by R.A. No. 5095 and Presidential Decree (P.D.) No.
1438, effective at the close of office hours of August 18, 2007, which was approved by the Court (First Division) per
Resolution dated November 14, 2007,[17] provided that the amount of Four Hundred Thousand (P400,000.00) Pesos shall
be retained/withheld from his retirement benefits to answer for whatever adverse decision the Court may later impose upon
him in A.M. No. RTJ-06-1984 (herein case) and OCA IPI No. 05-2248-RTJ, the Court, therefore, deems it appropriate to
impose a fine of P40,000.00, with a stern warning that a repetition of the same or similar acts in the future would be dealt
with more severely.
WHEREFORE, respondent Judge Francisco B. Ibay is found GUILTY of grave abuse of authority for citing complainant
Valeriano F. Nuez for contempt without legal basis, and is ORDERED to PAY a FINE of Forty Thousand Pesos
(P40,000.00), to be deducted from his retirement benefits, which in this case shall be deductible from the Four Hundred
Thousand Pesos (P400,000.00) withheld from his retirement benefits, per Resolution dated November 14, 2007.
SO ORDERED.
FIRST DIVISION
ROGELIO A. TAN, NORMA TAN G.R. No. 169517
and MALIYAWAO PAGAYOKAN,
Petitioners, Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
BENEDICTO M. BALAJADIA,
Respondent. Promulgated:
March 14, 2006
x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:
Before us is an original petition[1] for contempt filed by petitioners Rogelio Tan, Norma Tan and Maliyawao
Pagayokan against respondent Benedicto Balajadia.
Petitioners allege that on May 8, 2005, respondent filed a criminal case against them with the Office of the City
of Prosecutor of Baguio City for usurpation of authority, grave coercion and violation of city tax ordinance due to the
alleged illegal collection of parking fees by petitioners from respondent. In paragraph 5 of the complaint-affidavit,
respondent asserted that he is a practicing lawyer based in Baguio City with office address at Room B-207, 2/F Lopez
Building, Session Road, Baguio City.[2] However, certifications issued by the Office of the Bar Confidant[3] and the
Integrated Bar of the Philippines[4] showed that respondent has never been admitted to the Philippine Bar. Hence,
petitioners claim that respondent is liable for indirect contempt for misrepresenting himself as a lawyer.
In his Comment,[5] respondent avers that the allegation in paragraph 5 of the complaint-affidavit that he is a
practicing lawyer was an honest mistake. He claims that the secretary of Atty. Paterno Aquino prepared the subject
complaint-affidavit which was patterned after Atty. Aquinos complaint-affidavit.[6] It appears that Atty. Aquino had
previously filed a complaint-affidavit against petitioners involving the same subject matter.
Respondent claims that two complaint-affidavits were drafted by the same secretary; one for the May 5,
2005 parking incident at 10:00 oclock in the morning and another for the parking incident on the same date but which
occurred at 1:00 oclock in the afternoon. Respondent insists that the complaint-affidavit regarding the 1:00 oclock parking
incident correctly alleged that he is a businessman with office address at Room B-204, 2/F Lopez Building, Session
Road, Baguio City.[7] However, the complaint-affidavit regarding the 10:00 oclock parking incident, which is the subject of
the instant petition, erroneously referred to him as a practicing lawyer because Atty. Aquinos secretary copied verbatim
paragraph 5 of Atty. Aquinos complaint-affidavit. Hence, it was inadvertently alleged that respondent is a practicing lawyer
based in Baguio City with office address at Room B-207, 2/F Lopez Building, Session Road, Baguio City, which statement
referred to the person of Atty. Aquino and his law office address.
Liza Laconsay, Atty. Aquinos secretary, executed an affidavit[8] admitting the mistake in the preparation of the
complaint-affidavit. Respondent alleged that he did not read the complaint-affidavit because he assumed that the two
complaint-affidavits contained the same allegations with respect to his occupation and office address. Respondent claims
that he had no intention of misrepresenting himself as a practicing lawyer.
In their Reply,[9] petitioners reiterate that respondent should be made liable for indirect contempt for having made
untruthful statements in the complaint-affidavit and that he cannot shift the blame to Atty. Aquinos secretary.
The sole issue for resolution is whether respondent is liable for indirect contempt.
Section 3(e), Rule 71 of the Rules of Court provides:
Section 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has
been filed, and an opportunity given to the respondent to comment thereon within such period as may be
fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may
be punished for indirect contempt:
xxxx
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
x x x x.
In several cases,[10] we have ruled that the unauthorized practice of law by assuming to be an attorney and acting
as such without authority constitutes indirect contempt which is punishable by fine or imprisonment or both. The liability
for the unauthorized practice of law under Section 3(e), Rule 71 of the Rules of Court is in the nature of criminal contempt
and the acts are punished because they are an affront to the dignity and authority of the court, and obstruct the orderly
administration of justice. In determining liability for criminal contempt, well-settled is the rule that intent is a necessary
element, and no one can be punished unless the evidence makes it clear that he intended to commit it.[11]
In the case at bar, a review of the records supports respondents claim that he never intended to project himself
as a lawyer to the public. It was a clear inadvertence on the part of the secretary of Atty Aquino. The affidavit of Liza
Laconsay attesting to the circumstances that gave rise to the mistake in the drafting of the complaint-affidavit conforms
to the documentary evidence on record. Taken together, these circumstances show that the allegation in paragraph 5 of
respondents complaint-affidavit was, indeed, the result of inadvertence.
Respondent has satisfactorily shown that the allegation that he is a practicing lawyer was the result of
inadvertence and cannot, by itself, establish intent as to make him liable for indirect contempt. In the cases where we
found a party liable for the unauthorized practice of law, the party was guilty of some overt act like signing court pleadings
on behalf of his client;[12] appearing before court hearings as an attorney;[13] manifesting before the court that he will
practice law despite being previously denied admission to the bar;[14] or deliberately attempting to practice law and
holding out himself as an attorney through circulars with full knowledge that he is not licensed to do so.[15]
In the case at bar, no evidence was presented to show that respondent acted as an attorney or that he intended
to practice law. Consequently, he cannot be made liable for indirect contempt considering his lack of intent to illegally
practice law.
However, while the evidence on record failed to prove respondents deliberate intent to misrepresent himself as
an attorney and act as such without authority, he is hereby warned to be more careful and circumspect in his future
actions.
WHEREFORE, the petition is DISMISSED. Respondent is WARNED to be more careful and circumspect in his future
actions.
SO ORDERED.
EN BANC
[G.R. Nos. 151809-12. April 12, 2005]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner, vs. SANDIGANBAYAN
(Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS, NATIVIDAD P.
SANTOS, DOMINGO CHUA, TAN HUI NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN
KEE HIONG (represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C. TAN,
TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME
KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG, ERNESTO B. LIM, BENJAMIN T.
ALBACITA, WILLY CO, ALLIED BANKING CORP., ALLIED LEASING AND FINANCE
CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS CORP., FOREMOST FARMS, INC.,
FORTUNE TOBACCO CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS
HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC., MANUFACTURING SERVICES
AND TRADE CORP., MARANAW HOTELS AND RESORT CORP., NORTHERN TOBACCO
REDRYING PLANT, PROGRESSIVE FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING
CORP., VIRGO HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P.
MENDOZA, respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for it concerns on one hand, the efforts
of the Bar to upgrade the ethics of lawyers in government service and on the other, its effect on the right of
government to recruit competent counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial difficulties. GENBANK had
extended considerable financial support to Filcapital Development Corporation causing it to incur daily
overdrawings on its current account with the Central Bank.[1] It was later found by the Central Bank that
GENBANK had approved various loans to directors, officers, stockholders and related interests totaling P172.3
million, of which 59% was classified as doubtful and P0.505 million as uncollectible.[2] As a bailout, the Central
Bank extended emergency loans to GENBANK which reached a total of P310 million.[3] Despite the mega
loans, GENBANK failed to recover from its financial woes. On March 25, 1977, the Central Bank issued a
resolution declaring GENBANK insolvent and unable to resume business with safety to its depositors,
creditors and the general public, and ordering its liquidation.[4] A public bidding of GENBANKs assets was
held from March 26 to 28, 1977, wherein the Lucio Tan group submitted the winning bid.[5] Subsequently, former
Solicitor General Estelito P. Mendoza filed a petition with the then Court of First Instance praying for the
assistance and supervision of the court in GENBANKs liquidation as mandated by Section 29 of Republic Act
No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of the first acts of President
Corazon C. Aquino was to establish the Presidential Commission on Good Government (PCGG) to recover the
alleged ill-gotten wealth of former President Ferdinand Marcos, his family and his cronies. Pursuant to this
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint for reversion, reconveyance,
restitution, accounting and damages against respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos,
Natividad P. Santos, Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong,
Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo, Manuel Khoo, Miguel
Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy
Co, Allied Banking Corporation (Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic
Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan Development Corp., Himmel
Industries, Iris Holdings and Development Corp., Jewel Holdings, Inc., Manufacturing Services and Trade Corp.,
Maranaw Hotels and Resort Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings,
Inc., Sipalay Trading Corp., Virgo Holdings & Development Corp., (collectively referred to herein as respondents
Tan, et al.), then President Ferdinand E. Marcos, Imelda R. Marcos, Panfilo O. Domingo, Cesar Zalamea, Don
Ferry and Gregorio Licaros. The case was docketed as Civil Case No. 0005 of the Second Division of
the Sandiganbayan.[6] In connection therewith, the PCGG issued several writs of sequestration on properties
allegedly acquired by the above-named persons by taking advantage of their close relationship and influence
with former President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari, prohibition and injunction to
nullify, among others, the writs of sequestration issued by the PCGG. [7] After the filing of the parties comments,
this Court referred the cases to the Sandiganbayan for proper disposition. These cases were docketed as Civil
Case Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented by their counsel, former
Solicitor General Estelito P. Mendoza, who has then resumed his private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza as counsel for
respondents Tan, et al. with the Second Division of the Sandiganbayan in Civil Case Nos. 0005[8] and 00960099.[9] The motions alleged that respondent Mendoza, as then Solicitor General[10] and counsel to Central
Bank, actively intervened in the liquidation of GENBANK, which was subsequently acquired by respondents
Tan, et al. and became Allied Banking Corporation. Respondent Mendoza allegedly intervened in the acquisition
of GENBANK by respondents Tan, et al. when, in his capacity as then Solicitor General, he advised the Central
Banks officials on the procedure to bring about GENBANKs liquidation and appeared as counsel for the Central
Bank in connection with its petition for assistance in the liquidation of GENBANK which he filed with the Court of
First Instance (now Regional Trial Court) of Manila and was docketed as Special Proceeding No. 107812. The
motions to disqualify invoked Rule 6.03 of the Code of Professional Responsibility. Rule 6.03 prohibits
former government lawyers from accepting engagement or employment in connection with any matter in which
he had intervened while in said service.
On April 22, 1991 the Second Division of the Sandiganbayan issued a resolution denying PCGGs motion
to disqualify respondent Mendoza in Civil Case No. 0005.[11] It found that the PCGG failed to prove the existence
of an inconsistency between respondent Mendozas former function as Solicitor General and his present
employment as counsel of the Lucio Tan group. It noted that respondent Mendoza did not take a position adverse
to that taken on behalf of the Central Bank during his term as Solicitor General.[12] It further ruled that respondent
Mendozas appearance as counsel for respondents Tan, et al. was beyond the one-year prohibited period under
Section 7(b) of Republic Act No. 6713 since he ceased to be Solicitor General in the year 1986. The said section
prohibits a former public official or employee from practicing his profession in connection with any matter before
the office he used to be with within one year from his resignation, retirement or separation from public
office.[13] The PCGG did not seek any reconsideration of the ruling.[14]
It appears that Civil Case Nos. 0096-0099 were transferred from the Sandiganbayans Second Division to
the Fifth Division.[15] In its resolution dated July 11, 2001, the Fifth Division of the Sandiganbayan denied the
other PCGGs motion to disqualify respondent Mendoza.[16] It adopted the resolution of its Second
Division dated April 22, 1991, and observed that the arguments were the same in substance as the motion to
disqualify filed in Civil Case No. 0005. The PCGG sought reconsideration of the ruling but its motion was denied
in its resolution dated December 5, 2001.[17]
Hence, the recourse to this Court by the PCGG assailing the resolutions dated July 11, 2001 and December
5, 2001 of the Fifth Division of the Sandiganbayan via a petition for certiorari and prohibition under Rule 65 of
the 1997 Rules of Civil Procedure.[18] The PCGG alleged that the Fifth Division acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed resolutions contending that: 1) Rule
6.03 of the Code of Professional Responsibility prohibits a former government lawyer from accepting
employment in connection with any matter in which he intervened; 2) the prohibition in the Rule is not timebound; 3) that Central Bank could not waive the objection to respondent Mendozas appearance on behalf of the
PCGG; and 4) the resolution in Civil Case No. 0005 was interlocutory, thus res judicata does not apply.[19]
The petition at bar raises procedural and substantive issues of law. In view, however, of the import and
impact of Rule 6.03 of the Code of Professional Responsibility to the legal profession and the government, we
shall cut our way and forthwith resolve the substantive issue.
I
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility applies to respondent
Mendoza. Again, the prohibition states: A lawyer shall not, after leaving government service, accept engagement
or employment in connection with any matter in which he had intervened while in the said service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical lineage of Rule 6.03 of the Code
of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers were pervasive
in England and other parts of Europe. The early statements of standards did not resemble modern codes of
conduct. They were not detailed or collected in one source but surprisingly were comprehensive for their time.
The principal thrust of the standards was directed towards the litigation conduct of lawyers. It underscored the
central duty of truth and fairness in litigation as superior to any obligation to the client. The formulations of the
litigation duties were at times intricate, including specific pleading standards, an obligation to inform the court of
falsehoods and a duty to explore settlement alternatives. Most of the lawyer's other basic duties -- competency,
diligence, loyalty, confidentiality, reasonable fees and service to the poor -- originated in the litigation context,
but ultimately had broader application to all aspects of a lawyer's practice.
The forms of lawyer regulation in colonial and early post-revolutionary America did not differ markedly
from those in England. The colonies and early states used oaths, statutes, judicial oversight, and procedural
rules to govern attorney behavior. The difference from England was in the pervasiveness and continuity of such
regulation. The standards set in England varied over time, but the variation in early America was far greater. The
American regulation fluctuated within a single colony and differed from colony to colony. Many regulations had
the effect of setting some standards of conduct, but the regulation was sporadic, leaving gaps in the substantive
standards. Only three of the traditional core duties can be fairly characterized as pervasive in the formal, positive
law of the colonial and post-revolutionary period: the duties of litigation fairness, competency and reasonable
fees.[20]
The nineteenth century has been termed the dark ages of legal ethics in the United States. By midcentury, American legal reformers were filling the void in two ways. First, David Dudley Field, the drafter of the
highly influential New York Field Code, introduced a new set of uniform standards of conduct for lawyers. This
concise statement of eight statutory duties became law in several states in the second half of the nineteenth
century. At the same time, legal educators, such as David Hoffman and George Sharswood, and many other
lawyers were working to flesh out the broad outline of a lawyer's duties. These reformers wrote about legal ethics
in unprecedented detail and thus brought a new level of understanding to a lawyer's duties. A number of midnineteenth century laws and statutes, other than the Field Code, governed lawyer behavior. A few forms of
colonial regulations e.g., the do no falsehood oath and the deceit prohibitions -- persisted in some states.
Procedural law continued to directly, or indirectly, limit an attorney's litigation behavior. The developing law of
agency recognized basic duties of competence, loyalty and safeguarding of client property. Evidence law started
to recognize with less equivocation the attorney-client privilege and its underlying theory of confidentiality. Thus,
all of the core duties, with the likely exception of service to the poor, had some basis in formal law. Yet, as in the
colonial and early post-revolutionary periods, these standards were isolated and did not provide a
comprehensive statement of a lawyer's duties. The reformers, by contrast, were more comprehensive in their
discussion of a lawyer's duties, and they actually ushered a new era in American legal ethics.[21]
Toward the end of the nineteenth century, a new form of ethical standards began to guide lawyers in their
practice the bar association code of legal ethics. The bar codes were detailed ethical standards formulated by
lawyers for lawyers. They combined the two primary sources of ethical guidance from the nineteenth century.
Like the academic discourses, the bar association codes gave detail to the statutory statements of duty and the
oaths of office. Unlike the academic lectures, however, the bar association codes retained some of the official
imprimatur of the statutes and oaths. Over time, the bar association codes became extremely popular that states
adopted them as binding rules of law. Critical to the development of the new codes was the re-emergence of bar
associations themselves. Local bar associations formed sporadically during the colonial period, but they
disbanded by the early nineteenth century. In the late nineteenth century, bar associations began to form again,
picking up where their colonial predecessors had left off. Many of the new bar associations, most notably the
Alabama State Bar Association and the American Bar Association, assumed on the task of drafting substantive
standards of conduct for their members.[22]
In 1887, Alabama became the first state with a comprehensive bar association code of ethics. The 1887
Alabama Code of Ethics was the model for several states codes, and it was the foundation for the American Bar
Association's (ABA) 1908 Canons of Ethics.[23]
In 1917, the Philippine Bar found that the oath and duties of a lawyer were insufficient to attain the full
measure of public respect to which the legal profession was entitled. In that year, the Philippine Bar Association
adopted as its own, Canons 1 to 32 of the ABA Canons of Professional Ethics.[24]
As early as 1924, some ABA members have questioned the form and function of the canons. Among their
concerns was the revolving door or the process by which lawyers and others temporarily enter government
service from private life and then leave it for large fees in private practice, where they can exploit information,
contacts, and influence garnered in government service.[25] These concerns were classified as adverse-interest
conflicts and congruent-interest conflicts. Adverse-interest conflicts exist where the matter in which the
former government lawyer represents a client in private practice is substantially related to a matter that the lawyer
dealt with while employed by the government and the interests of the current and former are adverse. [26] On the
other hand, congruent-interest representation conflicts are unique to government lawyers and apply
primarily to former government lawyers.[27] For several years, the ABA attempted to correct and update the
canons through new canons, individual amendments and interpretative opinions. In 1928, the ABA amended
one canon and added thirteen new canons.[28] To deal with problems peculiar to former government
lawyers, Canon 36 was minted which disqualified them both for adverse-interest conflicts and congruent-interest
representation conflicts.[29] The rationale for disqualification is rooted in a concern that the government lawyers
largely discretionary actions would be influenced by the temptation to take action on behalf of the government
client that later could be to the advantage of parties who might later become private practice clients. [30] Canon
36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon the merits of which he has previously acted in
a judicial capacity.
A lawyer, having once held public office or having been in the public employ should not, after his retirement,
accept employment in connection with any matter he has investigated or passed upon while in such office or
employ.
Over the next thirty years, the ABA continued to amend many of the canons and added Canons 46 and 47
in 1933 and 1937, respectively.[31]
In 1946, the Philippine Bar Association again adopted as its own Canons 33 to 47 of the ABA Canons of
Professional Ethics.[32]
By the middle of the twentieth century, there was growing consensus that the ABA Canons needed more
meaningful revision. In 1964, the ABA President-elect Lewis Powell asked for the creation of a committee to
study the adequacy and effectiveness of the ABA Canons. The committee recommended that the canons needed
substantial revision, in part because the ABA Canons failed to distinguish between the inspirational and the
proscriptive and were thus unsuccessful in enforcement. The legal profession in the United States likewise
observed that Canon 36 of the ABA Canons of Professional Ethics resulted in unnecessary disqualification of
lawyers for negligible participation in matters during their employment with the government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA Model Code of Professional
Responsibility.[33] The basic ethical principles in the Code of Professional Responsibility were supplemented by
Disciplinary Rules that defined minimum rules of conduct to which the lawyer must adhere. [34] In the case of
Canon 9, DR 9-101(b)[35]became the applicable supplementary norm. The drafting committee reformulated the
canons into the Model Code of Professional Responsibility, and, in August of 1969, the ABA House of Delegates
approved the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with the results and indefinite standards
set forth by DR 9-101(b) and the Model Code of Professional Responsibility as a whole. Thus, in August 1983,
the ABA adopted new Model Rules of Professional Responsibility. The Model Rules used the restatement
format, where the conduct standards were set-out in rules, with comments following each rule. The new format
was intended to give better guidance and clarity for enforcement because the only enforceable standards were
the black letter Rules. The Model Rules eliminated the broad canons altogether and reduced the emphasis on
narrative discussion, by placing comments after the rules and limiting comment discussion to the content of the
black letter rules. The Model Rules made a number of substantive improvements particularly with regard to
conflicts of interests.[37] In particular, the ABA did away with Canon 9, citing the hopeless dependence of
the concept of impropriety on the subjective views of anxious clients as well as the norms indefinite
nature.[38]
In cadence with these changes, the Integrated Bar of the Philippines (IBP) adopted a proposed Code
of Professional Responsibility in 1980 which it submitted to this Court for approval. The Code was drafted
to reflect the local customs, traditions, and practices of the bar and to conform with new realities. On June 21,
1988, this Court promulgated the Code of Professional Responsibility.[39] Rule 6.03 of the Code of
Professional Responsibility deals particularly with former government lawyers, and provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement or employment in connection with
any matter in which he had intervened while in said service.
Rule 6.03 of the Code of Professional Responsibility retained the general structure of paragraph 2, Canon
36 of the Canons of Professional Ethics but replaced the expansive phrase investigated and passed
upon with the word intervened. It is, therefore, properly applicable to both adverse-interest
conflicts and congruent-interest conflicts.
The case at bar does not involve the adverse interest aspect of Rule 6.03. Respondent Mendoza, it is
conceded, has no adverse interest problem when he acted as Solicitor General in Sp. Proc. No. 107812 and
later as counsel of respondents Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before
the Sandiganbayan. Nonetheless, there remains the issue of whether there exists a congruent-interest
conflict sufficient to disqualify respondent Mendoza from representing respondents Tan, et al.
I.B. The congruent interest aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning of matter referred to in the rule and,
second, the metes and bounds of the intervention made by the former government lawyer on the matter. The
American Bar Association in its Formal Opinion 342, defined matter as any discrete, isolatable act as well as
identifiable transaction or conduct involving a particular situation and specific party, and not merely an act of
drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract
principles of law.
Firstly, it is critical that we pinpoint the matter which was the subject of intervention by respondent Mendoza
while he was the Solicitor General. The PCGG relates the following acts of respondent Mendoza as constituting
the matter where he intervened as a Solicitor General, viz:[40]
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth Division) in issuing the assailed
Resolutions dated July 11, 2001 and December 5, 2001 denying the motion to disqualify Atty. Mendoza as counsel for
respondents Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor General, actively intervened in the closure
of GENBANK by advising the Central Bank on how to proceed with the said banks liquidation and even filing the
petition for its liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared by certain key officials of the Central
Bank, namely, then Senior Deputy Governor Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy
Governor and General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota P. Valenzuela, then
Asistant to the Governor Arnulfo B. Aurellano and then Director of Department of Commercial and Savings Bank
Antonio T. Castro, Jr., where they averred that on March 28, 1977, they had a conference with the Solicitor General (Atty.
Mendoza), who advised them on how to proceed with the liquidation of GENBANK. The pertinent portion of the said
memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and he advised that the following
procedure should be taken:
1. Management should submit a memorandum to the Monetary Board reporting that studies and evaluation had
been made since the last examination of the bank as of August 31, 1976 and it is believed that the bank can
not be reorganized or placed in a condition so that it may be permitted to resume business with safety to its
depositors and creditors and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the liquidation of the bank and indicate
the manner of its liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the foregoing decision to liquidate the
bank and the liquidation plan approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance reciting the proceedings which
had been taken and praying the assistance of the Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary Board where it was shown that Atty.
Mendoza was furnished copies of pertinent documents relating to GENBANK in order to aid him in filing with the court
the petition for assistance in the banks liquidation. The pertinent portion of the said minutes reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a copy of the subject memorandum of
the Director, Department of Commercial and Savings Bank dated March 29, 1977, together with
copies of:
1. Memorandum of the Deputy Governor, Supervision and Examination Sector, to the Monetary
Board, dated March 25, 1977, containing a report on the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and Savings Bank, to the Monetary
Board, dated March 24, 1977, submitting, pursuant to Section 29 of R.A. No. 265, as amended by
P.D. No. 1007, a repot on the state of insolvency of Genbank, together with its attachments; and
4. Such other documents as may be necessary or needed by the Solicitor General for his use in then
CFI-praying the assistance of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the matter or the act of respondent Mendoza as Solicitor General involved in the
case at bar is advising the Central Bank, on how to proceed with the said banks liquidation and even filing the
petition for its liquidation with the CFI of Manila. In fine, the Court should resolve whether his act of advising the
Central Bank on the legal procedure to liquidate GENBANK is included within the concept of matter under Rule
6.03. The procedure of liquidation is given in black and white in Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the head of the appropriate
supervising or examining department or his examiners or agents into the condition of any bank or non-bank
financial intermediary performing quasi-banking functions, it shall be disclosed that the condition of the same is
one of insolvency, or that its continuance in business would involve probable loss to its depositors or creditors, it
shall be the duty of the department head concerned forthwith, in writing, to inform the Monetary Board of the
facts, and the Board may, upon finding the statements of the department head to be true, forbid the institution to
do business in the Philippines and shall designate an official of the Central Bank or a person of recognized
competence in banking or finance, as receiver to immediately take charge of its assets and liabilities, as
expeditiously as possible collect and gather all the assets and administer the same for the benefit of its creditors,
exercising all the powers necessary for these purposes including, but not limited to, bringing suits and
foreclosing mortgages in the name of the bank or non-bank financial intermediary performing quasi-banking
functions.
...
If the Monetary Board shall determine and confirm within the said period that the bank or non-bank
financial intermediary performing quasi-banking functions is insolvent or cannot resume business with safety to
its depositors, creditors and the general public, it shall, if the public interest requires, order its liquidation,
indicate the manner of its liquidation and approve a liquidation plan. The Central Bank shall, by the Solicitor
General, file a petition in the Court of First Instance reciting the proceedings which have been taken and praying
the assistance of the court in the liquidation of such institution. The court shall have jurisdiction in the same
proceedings to adjudicate disputed claims against the bank or non-bank financial intermediary performing quasibanking functions and enforce individual liabilities of the stockholders and do all that is necessary to preserve
the assets of such institution and to implement the liquidation plan approved by the Monetary Board. The
Monetary Board shall designate an official of the Central Bank, or a person of recognized competence in
banking or finance, as liquidator who shall take over the functions of the receiver previously appointed by the
Monetary Board under this Section. The liquidator shall, with all convenient speed, convert the assets of the
banking institution or non-bank financial intermediary performing quasi-banking functions to money or sell,
assign or otherwise dispose of the same to creditors and other parties for the purpose of paying the debts of such
institution and he may, in the name of the bank or non-bank financial intermediary performing quasi-banking
functions, institute such actions as may be necessary in the appropriate court to collect and recover accounts and
assets of such institution.
The provisions of any law to the contrary notwithstanding, the actions of the Monetary Board under this
Section and the second paragraph of Section 34 of this Act shall be final and executory, and can be set aside by
the court only if there is convincing proof that the action is plainly arbitrary and made in bad faith. No
restraining order or injunction shall be issued by the court enjoining the Central Bank from implementing its
actions under this Section and the second paragraph of Section 34 of this Act, unless there is convincing proof
that the action of the Monetary Board is plainly arbitrary and made in bad faith and the petitioner or plaintiff
files with the clerk or judge of the court in which the action is pending a bond executed in favor of the Central
Bank, in an amount to be fixed by the court. The restraining order or injunction shall be refused or, if granted,
shall be dissolved upon filing by the Central Bank of a bond, which shall be in the form of cash or Central Bank
cashier(s) check, in an amount twice the amount of the bond of the petitioner or plaintiff conditioned that it will
pay the damages which the petitioner or plaintiff may suffer by the refusal or the dissolution of the injunction.
The provisions of Rule 58 of the New Rules of Court insofar as they are applicable and not inconsistent with the
provisions of this Section shall govern the issuance and dissolution of the restraining order or injunction
contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the inability of a bank or non-bank financial
intermediary performing quasi-banking functions to pay its liabilities as they fall due in the usual and ordinary
course of business. Provided, however, That this shall not include the inability to pay of an otherwise noninsolvent bank or non-bank financial intermediary performing quasi-banking functions caused by extraordinary
demands induced by financial panic commonly evidenced by a run on the bank or non-bank financial
intermediary performing quasi-banking functions in the banking or financial community.
The appointment of a conservator under Section 28-A of this Act or the appointment of a receiver under
this Section shall be vested exclusively with the Monetary Board, the provision of any law, general or special, to
the contrary notwithstanding. (As amended by PD Nos. 72, 1007, 1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to liquidate GENBANK is not the
matter contemplated by Rule 6.03 of the Code of Professional Responsibility. ABA Formal Opinion No. 342 is
clear as daylight in stressing that the drafting, enforcing or interpreting government or agency procedures,
regulations or laws, or briefing abstract principles of law are acts which do not fall within the scope of the
term matter and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above act of respondent Mendoza
falls within the definition of matter per ABA Formal Opinion No. 342. Be that as it may, the said act of respondent
Mendoza which is the matter involved in Sp. Proc. No. 107812 is entirely different from the matter involved in
Civil Case No. 0096. Again, the plain facts speak for themselves. It is given that respondent Mendoza had nothing
to do with the decision of the Central Bank to liquidate GENBANK. It is also given that he did not participate in
the sale of GENBANK to Allied Bank. The matter where he got himself involved was in informing Central Bank
on the procedure provided by law to liquidate GENBANK thru the courts and in filing the necessary petition in
Sp. Proc. No. 107812 in the then Court of First Instance. The subject matter of Sp. Proc. No. 107812,
therefore, is not the same nor is related to but is different from the subject matter in Civil Case No. 0096.
Civil Case No. 0096 involves the sequestration of the stocks owned by respondents Tan, et al., in Allied Bank
on the alleged ground that they are ill-gotten. The case does not involve the liquidation of GENBANK. Nor does
it involve the sale of GENBANK to Allied Bank. Whether the shares of stock of the reorganized Allied Bank are
ill-gotten is far removed from the issue of the dissolution and liquidation of GENBANK. GENBANK was
liquidated by the Central Bank due, among others, to the alleged banking malpractices of its owners and officers.
In other words, the legality of the liquidation of GENBANK is not an issue in the sequestration cases. Indeed, the
jurisdiction of the PCGG does not include the dissolution and liquidation of banks. It goes without saying that
Code 6.03 of the Code of Professional Responsibility cannot apply to respondent Mendoza because his
alleged intervention while a Solicitor General in Sp. Proc. No. 107812 is an intervention on a matter
different from the matter involved in Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of the intervention contemplated by Rule 6.03. Intervene
means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to occur, fall, or come in between points
of time or events . . . 3: to come in or between by way of hindrance or modification: INTERPOSE . . . 4: to occur or lie
between two things (Paris, where the same city lay on both sides of an intervening river . . .)[41]
On the other hand, intervention is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the interests of
others.[42]
There are, therefore, two possible interpretations of the word intervene. Under the first interpretation,
intervene includes participation in a proceeding even if the intervention is irrelevant or has no effect or little
influence.[43] Under the second interpretation, intervene only includes an act of a person who has the power to
influence the subject proceedings.[44]We hold that this second meaning is more appropriate to give to the word
intervention under Rule 6.03 of the Code of Professional Responsibility in light of its history. The evils sought to
be remedied by the Rule do not exist where the government lawyer does an act which can be considered as
innocuous such as x x x drafting, enforcing or interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law.
In fine, the intervention cannot be insubstantial and insignificant. Originally, Canon 36 provided that a
former government lawyer should not, after his retirement, accept employment in connection with any
matter which he has investigated or passed upon while in such office or employ. As aforediscussed, the broad
sweep of the phrase which he has investigated or passed upon resulted in unjust disqualification of former
government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition extended only
to a matter in which the lawyer, while in the government service, had substantial responsibility. The 1983
Model Rules further constricted the reach of the rule. MR 1.11(a) provides that a lawyer shall not represent a
private client in connection with a matter in which the lawyer participated personally and substantially as a
public officer or employee.
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No. 107812 is significant
and substantial. We disagree. For one, the petition in the special proceedings is an initiatory pleading, hence,
it has to be signed by respondent Mendoza as the then sitting Solicitor General. For another, the record is
arid as to the actual participation of respondent Mendoza in the subsequent proceedings. Indeed, the case was
in slumberville for a long number of years. None of the parties pushed for its early termination. Moreover, we
note that the petition filed merely seeks the assistance of the court in the liquidation of GENBANK. The principal
role of the court in this type of proceedings is to assist the Central Bank in determining claims of
creditors against the GENBANK. The role of the court is not strictly as a court of justice but as an agent to assist
the Central Bank in determining the claims of creditors. In such a proceeding, the participation of the Office of
the Solicitor General is not that of the usual court litigator protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a commendable effort on the
part of the IBP to upgrade the ethics of lawyers in the government service. As aforestressed, it is a take-off from
similar efforts especially by the ABA which have not been without difficulties. To date, the legal profession in the
United States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional Responsibility, the Court took
account of various policy considerations to assure that its interpretation and application to the case at bar
will achieve its end without necessarily prejudicing other values of equal importance. Thus, the rule was not
interpreted to cause a chilling effect on government recruitment of able legal talent. At present, it is already
difficult for government to match compensation offered by the private sector and it is unlikely that government
will be able to reverse that situation. The observation is not inaccurate that the only card that the government
may play to recruit lawyers is have them defer present income in return for the experience and contacts that can
later be exchanged for higher income in private practice.[45] Rightly, Judge Kaufman warned that the sacrifice of
entering government service would be too great for most men to endure should ethical rules prevent them from
engaging in the practice of a technical specialty which they devoted years in acquiring and cause the firm with
which they become associated to be disqualified.[46] Indeed, to make government service more difficult to exit
can only make it less appealing to enter.[47]
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation tactic to harass
opposing counsel as well as deprive his client of competent legal representation. The danger that the rule will
be misused to bludgeon an opposing counsel is not a mere guesswork. The Court of Appeals for the District of
Columbia has noted the tactical use of motions to disqualify counsel in order to delay proceedings, deprive the
opposing party of counsel of its choice, and harass and embarrass the opponent, and observed that the tactic
was so prevalent in large civil cases in recent years as to prompt frequent judicial and academic
commentary.[48] Even the United States Supreme Court found no quarrel with the Court of Appeals description
of disqualification motions as a dangerous game.[49] In the case at bar, the new attempt to disqualify respondent
Mendoza is difficult to divine. The disqualification of respondent Mendoza has long been a dead issue. It was
resuscitated after the lapse of many years and only after PCGG has lost many legal incidents in the hands of
respondent Mendoza. For a fact, the recycled motion for disqualification in the case at bar was filed more than
four years after the filing of the petitions for certiorari, prohibition and injunction with the Supreme Court which
were subsequently remanded to the Sandiganbayan and docketed as Civil Case Nos. 0096-0099.[50] At the very
least, the circumstances under which the motion to disqualify in the case at bar were refiled put petitioners motive
as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the prejudice to the
client which will be caused by its misapplication. It cannot be doubted that granting a disqualification motion
causes the client to lose not only the law firm of choice, but probably an individual lawyer in whom the client has
confidence.[51] The client with a disqualified lawyer must start again often without the benefit of the work done by
the latter.[52] The effects of this prejudice to the right to choose an effective counsel cannot be overstated for it
can result in denial of due process.
The Court has to consider also the possible adverse effect of a truncated reading of the rule on the
official independence of lawyers in the government service. According to Prof. Morgan: An individual who
has the security of knowing he or she can find private employment upon leaving the government is free to work
vigorously, challenge official positions when he or she believes them to be in error, and resist illegal demands
by superiors. An employee who lacks this assurance of private employment does not enjoy such freedom.[53] He
adds: Any system that affects the right to take a new job affects the ability to quit the old job and any limit on the
ability to quit inhibits official independence.[54] The case at bar involves the position of Solicitor General, the
office once occupied by respondent Mendoza. It cannot be overly stressed that the position of Solicitor
General should be endowed with a great degree of independence. It is this independence that allows the
Solicitor General to recommend acquittal of the innocent; it is this independence that gives him the right to refuse
to defend officials who violate the trust of their office. Any undue dimunition of the independence of the Solicitor
General will have a corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former government lawyer of the freedom
to exercise his profession. Given the current state of our law, the disqualification of a former government
lawyer may extend to all members of his law firm. [55] Former government lawyers stand in danger of becoming
the lepers of the legal profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the Code of Professional
Responsibility is the possible appearance of impropriety and loss of public confidence in government. But as
well observed, the accuracy of gauging public perceptions is a highly speculative exercise at best [56] which can
lead to untoward results.[57] No less than Judge Kaufman doubts that the lessening of restrictions as to former
government attorneys will have any detrimental effect on that free flow of information between the governmentclient and its attorneys which the canons seek to protect.[58] Notably, the appearance of impropriety theory
has been rejected in the 1983 ABA Model Rules of Professional Conduct [59]and some courts have
abandoned per se disqualification based on Canons 4 and 9 when an actual conflict of interest exists, and
demand an evaluation of the interests of the defendant, government, the witnesses in the case, and the public.[60]
It is also submitted that the Court should apply Rule 6.03 in all its strictness for it correctly disfavors lawyers
who switch sides. It is claimed that switching sides carries the danger that former government employee
may compromise confidential official information in the process. But this concern does not cast a shadow in
the case at bar. As afore-discussed, the act of respondent Mendoza in informing the Central Bank on the
procedure how to liquidate GENBANK is a different matter from the subject matter of Civil Case No. 0005 which
is about the sequestration of the shares of respondents Tan, et al., in Allied Bank. Consequently, the danger that
confidential official information might be divulged is nil, if not inexistent. To be sure, there are no inconsistent
sides to be bothered about in the case at bar. For there is no question that in lawyering for respondents Tan, et
al., respondent Mendoza is not working against the interest of Central Bank. On the contrary, he is indirectly
defending the validity of the action of Central Bank in liquidating GENBANK and selling it later to Allied
Bank. Their interests coincide instead of colliding. It is for this reason that Central Bank offered no objection
to the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of respondents Tan, et al. There is
no switching of sides for no two sides are involved.
It is also urged that the Court should consider that Rule 6.03 is intended to avoid conflict of loyalties, i.e.,
that a government employee might be subject to a conflict of loyalties while still in government service. [61] The
example given by the proponents of this argument is that a lawyer who plans to work for the company that he or
she is currently charged with prosecuting might be tempted to prosecute less vigorously. [62] In the cautionary
words of the Association of the Bar Committee in 1960: The greatest public risks arising from post employment
conduct may well occur during the period of employment through the dampening of aggressive administration
of government policies.[63] Prof. Morgan, however, considers this concern as probably excessive.[64] He opines x
x x it is hard to imagine that a private firm would feel secure hiding someone who had just been disloyal to his or
her last client the government. Interviews with lawyers consistently confirm that law firms want the best
government lawyers the ones who were hardest to beat not the least qualified or least vigorous advocates.[65] But
again, this particular concern is a non factor in the case at bar. There is no charge against respondent
Mendoza that he advised Central Bank on how to liquidate GENBANK with an eye in later defending respondents
Tan, et al. of Allied Bank. Indeed, he continues defending both the interests of Central Bank and respondents
Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived as the excessive influence
of former officials or their clout.[66] Prof. Morgan again warns against extending this concern too far. He
explains the rationale for his warning, viz: Much of what appears to be an employees influence may actually be
the power or authority of his or her position, power that evaporates quickly upon departure from government x x
x.[67] More, he contends that the concern can be demeaning to those sitting in government. To quote him further:
x x x The idea that, present officials make significant decisions based on friendship rather than on the merit says
more about the present officials than about their former co-worker friends. It implies a lack of will or talent, or
both, in federal officials that does not seem justified or intended, and it ignores the possibility that the officials
will tend to disfavor their friends in order to avoid even the appearance of favoritism.[68]
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the congruent interest prong of
Rule 6.03 of the Code of Professional Responsibility should be subject to a prescriptive period. Mr. Justice Tinga
opines that the rule cannot apply retroactively to respondent Mendoza. Obviously, and rightly so, they are
disquieted by the fact that (1) when respondent Mendoza was the Solicitor General, Rule 6.03 has not yet
adopted by the IBP and approved by this Court, and (2) the bid to disqualify respondent Mendoza was made
after the lapse of time whose length cannot, by any standard, qualify as reasonable. At bottom, the point they
make relates to the unfairness of the rule if applied without any prescriptive period and retroactively, at that. Their
concern is legitimate and deserves to be initially addressed by the IBP and our Committee on Revision of the
Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and December 5, 2001 of
the Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19450
May 27, 1965
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SIMPLICIO VILLANUEVA, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
Magno T. Buese for defendant-appellant.
PAREDES, J.:
On September 4, 1959, the Chief of Police of Alaminos, Laguna, charged Simplicio Villanueva with the Crime
of Malicious Mischief before the Justice of the Peace Court of said municipality. Said accused was represented
by counsel de officio but later on replaced by counsel de parte. The complainant in the same case was
represented by City Attorney Ariston Fule of San Pablo City, having entered his appearance as private
prosecutor, after securing the permission of the Secretary of Justice. The condition of his appearance as such,
was that every time he would appear at the trial of the case, he would be considered on official leave of
absence, and that he would not receive any payment for his services. The appearance of City Attorney Fule as
private prosecutor was questioned by the counsel for the accused, invoking the case of Aquino, et al. vs.
Blanco, et al.,
L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had been appointed to the position of
Assistant Provincial Fiscal or City Fiscal and therein qualified, by operation of law, he ceased to engage in
private law practice." Counsel then argued that the JP Court in entertaining the appearance of City Attorney
Fule in the case is a violation of the above ruling. On December 17, 1960 the JP issued an order sustaining the
legality of the appearance of City Attorney Fule.
Under date of January 4, 1961, counsel for the accused presented a "Motion to Inhibit Fiscal Fule from Acting
as Private Prosecutor in this Case," this time invoking Section 32, Rule 27, now Sec. 35, Rule 138, Revised
Rules of Court, which bars certain attorneys from practicing. Counsel claims that City Attorney Fule falls under
this limitation. The JP Court ruled on the motion by upholding the right of Fule to appear and further stating that
he (Fule) was not actually enagaged in private law practice. This Order was appealed to the CFI of Laguna,
presided by the Hon. Hilarion U. Jarencio, which rendered judgment on December 20, 1961, the pertinent
portions of which read:
The present case is one for malicious mischief. There being no reservation by the offended party of the
civil liability, the civil action was deemed impliedly instituted with the criminal action. The offended party
had, therefore, the right to intervene in the case and be represented by a legal counsel because of her
interest in the civil liability of the accused.
Sec. 31, Rule 127 of the Rules of Court provides that in the court of a justice of the peace a party may
conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or
with the aid of an attorney. Assistant City Attorney Fule appeared in the Justice of the Peace Court as
an agent or friend of the offended party. It does not appear that he was being paid for his services or
that his appearance was in a professional capacity. As Assistant City Attorney of San Pablo he had no
control or intervention whatsoever in the prosecution of crimes committed in the municipality of
Alaminos, Laguna, because the prosecution of criminal cases coming from Alaminos are handled by
the Office of the Provincial Fiscal and not by the City Attornev of San Pablo. There could be no possible
conflict in the duties of Assistant City Attorney Fule as Assistant City Attorney of San Pablo and as
private prosecutor in this criminal case. On the other hand, as already pointed out, the offended party in
this criminal case had a right to be represented by an agent or a friend to protect her rights in the civil
action which was impliedly instituted together with the criminal action.
In view of the foregoing, this Court holds that Asst. City Attorney Ariston D. Fule may appear before the
Justice of the Peace Court of Alaminos, Laguna as private prosecutor in this criminal case as an agent
or a friend of the offended party.
WHEREFORE, the appeal from the order of the Justice of the Peace Court of Alaminos, Laguna,
allowing the apprearance of Ariston D. Fule as private prosecutor is dismissed, without costs.
The above decision is the subject of the instant proceeding.
The appeal should be dismissed, for patently being without merits.1äwphï1.ñët
Aside from the considerations advanced by the learned trial judge, heretofore reproduced, and which we
consider plausible, the fallacy of the theory of defense counsel lies in his confused interpretation of Section 32
of Rule 127 (now Sec. 35, Rule 138, Revised Rules), which provides that "no judge or other official or
employee of the superior courts or of the office of the Solicitor General, shall engage in private practice as a
member of the bar or give professional advice to clients." He claims that City Attorney Fule, in appearing as
private prosecutor in the case was engaging in private practice. We believe that the isolated appearance of
City Attorney Fule did not constitute private practice within the meaning and contemplation of the Rules.
Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of
acts of the same kind. In other words, it is frequent habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864,
42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or
habitually holding one's self out to the public, as customarily and demanding payment for such services (State
vs. Bryan, 4 S.E. 522, 98 N.C. 644, 647). The appearance as counsel on one occasion is not conclusive as
determinative of engagement in the private practice of law. The following observation of the Solicitor General is
noteworthy:
Essentially, the word private practice of law implies that one must have presented himself to be in the
active and continued practice of the legal profession and that his professional services are available to
the public for a compensation, as a source of his livelihood or in consideration of his said services.
For one thing, it has never been refuted that City Attorney Fule had been given permission by his immediate
superior, the Secretary of Justice, to represent the complainant in the case at bar, who is a relative.
CONFORMABLY WITH ALL THE FOREGOING, the decision appealed from should be, as it is hereby
affirmed, in all respects, with costs against appellant..
Republic of the Philippines
SUPREME COURT
Manila
A.M. No. 2266 October 27, 1983
HERMINIO R. NORIEGA, complainant,
vs.
ATTY. EMMANUEL R. SISON, respondent.
Herminio R. Noriega for complainant.
Emmanuel R. Sison in his own behalf.
GUERRERO, J.:
This is a complaint for disbarment filed on June 3, 1981 by Herminio R. Noriega against Atty. Emmanuel R.
Sison "admitted to the Bar on March 31, 1976) on the ground of malpractice through gross misrepresentation
and falsification.
Complainant Noriega alleges that respondent Sison is a regular and permanent employee of the Securities and
Exchange Commission (SEC) as a Hearing Officer and as such, "is mandated to observe strictly the civil
service rules and regulations, more particularly ... the prohibition of government employees to practice their
professions"; that to circumvent the prohibition and to evade the law, respondent assumed a different name,
falsified his Identity and represented himself to be one "Atty. Manuel Sison", with offices at No. 605 EDSA,
Cubao, Quezon City, "at the times that he will handle private cases"; that "Manuel Sison" is not listed as a
member of the Bar in the records of the Supreme Court; that under his said assumed name, respondent is
representing one Juan Sacquing, the defendant in Case No. E01978 before the Juvenile and Domestic
Relations Court of Manila, submitting pleadings therein signed by him respondent) under his assumed name,
despite his full knowledge That "Manuel Sison" is not a member of the Bar and that his acts in doing so are
illegal and unlawful. 1 Xerox copies of pertinent documents, pleadings, orders and notices are annexed to the
complaint to support the material allegations therein.
As requireD, respondent filed his Answer on August 20, 1981. He attached thereto a copy of the written
authorization given by Julio A. Sulit, Jr., Associate Commissioner of the Securities and Exchange Commission,
for him to appear as counsel of Juan Sacquing, a close family friend, in the Juvenile and Domestic Relations
Court JDRC of Manila, Respondent alleges that he never held himself out to the public as a practicing lawyer;
that he provided legal services to Sacquing in view of close family friendship and for free; that he never
represented himself deliberately and intentionally as "Atty. Manuel Sison" in the Manila JDRC where, in the
early stages of his appearance, he always signed the minutes as "Atty. Emmanuel R. Sison", and in one
instance, he even made the necessary correction when the court staff wrote his name as Atty Manuel Sison";
that due to the "inept and careless work of the clerical staff of the JDRC", notices were sent to "Atty. Manuel
Sison", at 605 EDSA, Cubao, Quezon City, where respondent's parents conduct a printing office and
establishment, which notices were honored by the personnel of said office as respondent's family has called
respondent by the nickname "Manuel"; that respondent did not feel any necessity to correct this error of the
JDRC since he "could use his nickname 'Manuel' interchangeably with his original true name as a formal
name, and its use was not done for a fraudulent purpose nor to misrepresent"; and, that this administrative
case is only one of the numerous baseless complaints brought by complainant against respondent, the former
being a disgruntled loser in an injunction case in the SEC heard before respondent as Hearing Officer.
In resolving this disbarment case, We must initially emphasize the degree of integrity and respectability
attached to the law profession. There is no denying that the profession of an attorney is required after a long
and laborious study. By years of patience, zeal and ability the attorney acquires a fixed means of support for
himself and his family. This is not to say, however, that the emphasis is on the pecuniary value of this
profession but rather on the social prestige and intellectual standing necessarily arising from and attached to
the same by reason of the fact that every attorney is deemed an officer of the court.
The importance of the dual aspects of the legal profession has been wisely put by Chief Justice Marshall of the
United States Court when he said:
On one hand, the profession of an Atty. is of great importance to an individual and the prosperity
of his life may depend on its exercise. The right to exercise it ought not to be lightly or
capriciously taken from him. On the other hand, it is extremely desirable that the respectability
of the Bar should be maintained and that its harmony with the bench should be preserved. For
these objects, some controlling power, some discretion ought to be exercised with great
moderation and judgment, but it must be exercised. 2
The purpose of disbarment, therefore, is not meant as a punishment depriving him of a source of livelihood but
is rather intended to protect the administration of justice by requiring that those who exercise this function
should be competent, honorable and reliable in order that the courts and clients may rightly repose confidence
in them. 3
In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its
disciplinary powers, the case against the respondent must be established by clear, convincing, and satisfactory
proof. Considering the serious consequences of the disbarment or suspension of a member of the Bar, this
Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the
administrative penalty. 4
This Court has also held in re Atty. Felizarda M. de Guzman 5 that to be made the basis of suspension or
disbarment, the record must disclose as free from doubt a case which compels the exercise by this Court of its
disciplinary powers. The dubious character of the act done as well as the motivation thereof must be clearly
demonstrated. An attorney enjoys the legal presumption that he is innocent of the charges preferred against
him until the contrary is proved; and as an officer of the court, that he performed his duty in accordance with
his oath.
Examining the facts of this case, We hold that the allegations in the complaint do not warrant disbarment of the
respondent. There is no evidence that the respondent has committed an act constituting deceit, immoral
conduct, violation of his oath as a lawyer, wilful disobedience of any lawful order of the court, or corruptly and
willfully appearing as an attorney to a part to a case without attorney to do so. 6
There is no violation of the Civil Service Rules and Regulations for his appearance as counsel for the
defendant in the JDRC Case No. E-01978 was with authority given by the Associate Commisioner Of SEC,
Julio A. Sulit, Jr.
This Court also holds that under the facts complained of supported by the annexes and the answer of
respondent likewise sustained by annexes attached thereto and the reply of the complainant, the accusation
that respondent with malice and deliberate intent to evade the laws, assumed a different name, falsified his
Identity and represented himself to be one "ATTY. MANUEL SISON" with offices at No. 605 EDSA, Cubao,
Quezon City at the times that he will handle private cases, is not meritorious. Neither is the charge referred to
is that pending the slantiated. The only case DRC Case No. E-01978 wherein respondent appeared as counsel
for the defendant. It being an isolated case, the same does not constitute the practice of law, more so since
respondent did not derive any pecuniary gain for his appearance because respondent and defendant therein
were close family friends. Such act of the respondent in going out of his way to aid as counsel to a close family
friend should not be allowed to be used as an instrument of harrassment against respondent.
The ruling in Zeta vs. Malinao (87 SCRA 303) wherein the respondent was dismissed from the service
because being a government employee, he appeared as counsel in a private case, cannot be applied in the
case at bar because the respondent in said Zeta case had appeared as counsel without permission from his
superiors.
Although the complaint alleges violation of civil service rules, the complainant however states that the basis of
his complaint for disbarment is not the respondent's act of appearing as counsel but the unauthorized use of
another name. 7
A perusal of the records however, reveals that whereas there is indeed a pleading entitled
"Objection/Opposition to the 2 Formal Offer of Evidence" (Annex "C" to the Complaint for Disbarment, which is
signed as "Manuel Sisori", counsel for defendant, 605 EDSA, Cubao, Quezon City, p. 7 of the Records), there
is, however, no showing that respondent was thus motivated with bad faith or malice, for otherwise lie would
not have corrected the spelling of his name when the court staff misspelled it in one of the minutes of the
proceeding. Moreover, We find no reason or motive for respondent to conceal his true name when he have
already given express authority by his superior to act as counsel for Juan Sacquing in the latter's case pending
before the JDRC And while it may be True that subsequent errors were made in sending notices to him under
the name "Atty. Manuel Sison, ' the errors were attributable to the JDRC clerical staff and not to the
respondent.
At most, this Court would only counsel the respondent to be more careful and cautious in signing his name so
as to avoid unnecessary confusion as regards his Identity.
At this point, We are constrained to examine the motives that prompted the complainant in filing the present
case. An examination of the records reveals that the complainant was a defendant in the Securities and
Exchange Commission (SEC) Case No. 1982 filed by the Integrated Livestock Dealers Inc. and Teofisto Jiao
against seven (7) respondents including the complainant, seeking to oust the complainant and his
codefendants from acting as officers of the Integrated Livestock Dealers lnc. then pending before respondent
as Hearing Officer of the SEC, who after trial decided the case against the herein complainant. From this
antecedent fact, there is cast a grave and serious doubt as to the true motivation of the complainant in filing the
present case, considering further that other administrative charges were filed by the complainant against
respondent herein before the SEC, JDRC and the Fiscal's office in Manila.
We hold that complainant's repeated charges or accusations only indicate his resentment and bitterness in
losing the SEC case and not with the honest and sincere desire and objectives "(1) to compel the attorney to
deal fairly and honestly with his client;" (Strong vs. Munday 52 N.J. Eq. 833, 21 A. 611) and "(2) to remove
from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and
responsibilities belonging to the office of an attorney." (Ex parte Brounsal Cowp 829; 83 Reprint; 6 C.J., p. 581;
see In re de los Angeles Adm. Case No. 225, Sept. 31, 1959, cited in Moran, Comments on the Rules of Court,
Vol. 6, p. 242).
In the light of the foregoing, We find no reason or necessity to refer this complaint to the Solicitor General for
investigation, report and recommendation.
WHEREFORE, this case is hereby DISMISSED for lack of merit.
SO ORDERED.
EN BANC
A.C. No. 6705
March 31, 2006
RUTHIE LIM-SANTIAGO, Complainant,
vs.
ATTY. CARLOS B. SAGUCIO, Respondent.
DECISION
CARPIO, J.:
The Case
This is a disbarment complaint against Atty. Carlos B. Sagucio for violating Rule 15.03 of the Code of
Professional Responsibility and for defying the prohibition against private practice of law while working as
government prosecutor.
The Facts
Ruthie Lim-Santiago ("complainant") is the daughter of Alfonso Lim and Special Administratrix of his
estate. 1Alfonso Lim is a stockholder and the former President of Taggat Industries, Inc. 2
Atty. Carlos B. Sagucio ("respondent") was the former Personnel Manager and Retained Counsel of Taggat
Industries, Inc. 3 until his appointment as Assistant Provincial Prosecutor of Tuguegarao, Cagayan in 1992. 4
Taggat Industries, Inc. ("Taggat") is a domestic corporation engaged in the operation of timber concessions
from the government. The Presidential Commission on Good Government sequestered it sometime in
1986, 5 and its operations ceased in 1997. 6
Sometime in July 1997, 21 employees of Taggat ("Taggat employees") filed a criminal complaint entitled
"Jesus Tagorda, Jr. et al. v. Ruthie Lim-Santiago," docketed as I.S. No. 97-240 ("criminal complaint"). 7 Taggat
employees alleged that complainant, who took over the management and control of Taggat after the death of
her father, withheld payment of their salaries and wages without valid cause from 1 April 1996 to 15 July
1997. 8
Respondent, as Assistant Provincial Prosecutor, was assigned to conduct the preliminary investigation. 9 He
resolved the criminal complaint by recommending the filing of 651 Informations 10 for violation of Article
288 11 in relation to Article 116 12 of the Labor Code of the Philippines. 13
Complainant now charges respondent with the following violations:
1. Rule 15.03 of the Code of Professional Responsibility
Complainant contends that respondent is guilty of representing conflicting interests. Respondent, being the
former Personnel Manager and Retained Counsel of Taggat, knew the operations of Taggat very well.
Respondent should have inhibited himself from hearing, investigating and deciding the case filed by Taggat
employees. 14 Furthermore, complainant claims that respondent instigated the filing of the cases and even
harassed and threatened Taggat employees to accede and sign an affidavit to support the complaint. 15
2. Engaging in the private practice of law while working as a government prosecutor
Complainant also contends that respondent is guilty of engaging in the private practice of law while working as
a government prosecutor. Complainant presented evidence to prove that respondent received P10,000 as
retainer’s fee for the months of January and February 1995, 16 another P10,000 for the months of April and
May 1995, 17 and P5,000 for the month of April 1996. 18
Complainant seeks the disbarment of respondent for violating Rule 15.03 of the Code of Professional
Responsibility and for defying the prohibition against private practice of law while working as government
prosecutor.
Respondent refutes complainant’s allegations and counters that complainant was merely aggrieved by the
resolution of the criminal complaint which was adverse and contrary to her expectation. 19
Respondent claims that when the criminal complaint was filed, respondent had resigned from Taggat for more
than five years. 20 Respondent asserts that he no longer owed his undivided loyalty to Taggat. 21 Respondent
argues that it was his sworn duty to conduct the necessary preliminary investigation. 22 Respondent contends
that complainant failed to establish lack of impartiality when he performed his duty. 23 Respondent points out
that complainant did not file a motion to inhibit respondent from hearing the criminal complaint 24 but instead
complainant voluntarily executed and filed her counter-affidavit without mental reservation. 25
Respondent states that complainant’s reason in not filing a motion to inhibit was her impression that
respondent would exonerate her from the charges filed as gleaned from complainant’s statement during the
hearing conducted on 12 February 1999:
xxx
Q. (Atty. Dabu). What do you mean you didn’t think he would do it, Madam Witness?
A. Because he is supposed to be my father’s friend and he was working with my Dad and he was supposed to
be trusted by my father. And he came to me and told me he gonna help me. x x x. 26
Respondent also asserts that no conflicting interests exist because he was not representing Taggat employees
or complainant. Respondent claims he was merely performing his official duty as Assistant Provincial
Prosecutor. 27Respondent argues that complainant failed to establish that respondent’s act was tainted with
personal interest, malice and bad faith. 28
Respondent denies complainant’s allegations that he instigated the filing of the cases, threatened and
harassed Taggat employees. Respondent claims that this accusation is bereft of proof because complainant
failed to mention the names of the employees or present them for cross-examination. 29
Respondent does not dispute his receipt, after his appointment as government prosecutor, of retainer fees
from complainant but claims that it
was only on a case-to-case basis and it ceased in 1996. 30 Respondent contends that the fees were paid for
his consultancy services and not for representation. Respondent submits that consultation is not the same as
representation and that rendering consultancy services is not prohibited. 31 Respondent, in his ReplyMemorandum, states:
x x x [I]f ever Taggat paid him certain amounts, these were paid voluntarily by Taggat without the respondent’s
asking, intended as token consultancy fees on a case-to-case basis and not as or for retainer fees. These
payments do not at all show or translate as a specie of ‘conflict of interest’. Moreover, these consultations had
no relation to, or connection with, the above-mentioned labor complaints filed by former Taggat employees. 32
Respondent insists that complainant’s evidence failed to prove that when the criminal complaint was filed with
the Office of the Provincial Prosecutor of Cagayan, respondent was still the retained counsel or legal
consultant. 33
While this disbarment case was pending, the Resolution and Order issued by respondent to file 651
Informations against complainant was reversed and set aside by Regional State Prosecutor of Cagayan
Rodolfo B. Cadelina last 4 January 1999. 34 Hence, the criminal complaint was dismissed. 35
The IBP’s Report and Recommendation
The Integrated Bar of the Philippines’ Investigating Commissioner Ma. Carmina M. Alejandro-Abbas ("IBP
Commissioner Abbas") heard the case 36 and allowed the parties to submit their respective memoranda. 37 Due
to IBP Commissioner Abbas’ resignation, the case was reassigned to Commissioner Dennis A.B. Funa ("IBP
Commissioner Funa"). 38
After the parties filed their memoranda and motion to resolve the case, the IBP Board of Governors issued
Resolution No. XVI-2004-479 ("IBP Resolution") dated 4 November 2004 adopting with modification 39 IBP
Commissioner Funa’s Report and Recommendation ("Report") finding respondent guilty of conflict of interests,
failure to safeguard a former client’s interest, and violating the prohibition against the private practice of law
while being a government prosecutor. The IBP Board of Governors recommended the imposition of a penalty
of three years suspension from the practice of law. The Report reads:
Now the issue here is whether being a former lawyer of Taggat conflicts with his role as Assistant Provincial
Prosecutor in deciding I.S. No. 97-240. A determination of this issue will require the test of whether the matter
in I.S. No. 97-240 will conflict with his former position of Personnel Manager and Legal Counsel of Taggat.
I.S. No. 97-240 was filed for "Violation of Labor Code" (see Resolution of the Provincial Prosecutors Office,
Annex "B" of Complaint). Herein Complainant, Ruthie Lim-Santiago, was being accused as having
the "management and control" of Taggat (p. 2, Resolution of the Prov. Pros. Office, supra).
Clearly, as a former Personnel Manager and Legal Counsel of Taggat, herein Respondent
undoubtedly handled the personnel and labor concerns of Taggat. Respondent, undoubtedly dealt with and
related with the employees of Taggat. Therefore, Respondent undoubtedly dealt with and related with
complainants in I.S. No. 97-240. The issues, therefore, in I.S. No. 97-240, are very much familiar with
Respondent. While the issues of unpaid salaries pertain to the periods 1996-1997, the mechanics and
personalities in that case are very much familiar with Respondent.
A lawyer owes something to a former client. Herein Respondent owes to Taggat, a former client, the duty to
"maintain inviolate the client’s confidence or to refrain from doing anything which will injuriously affect him in
any matter in which he previously represented him" (Natam v. Capule, 91 Phil. 640; p. 231, Agpalo, Legal
Ethics, 4th ed.)
Respondent argues that as Assistant Provincial Prosecutor, he does not represent any client or any interest
except justice. It should not be forgotten, however, that a lawyer has an immutable duty to a former
client with respect to matters that he previously handled for that former client. In this case, matters relating
to personnel, labor policies, and labor relations that he previously handled as Personnel Manager and Legal
Counsel of Taggat. I.S. No. 97-240 was for "Violation of the Labor Code." Here lies the conflict. Perhaps it
would have been different had I.S. No. 97-240 not been labor-related, or if Respondent had not been a
Personnel Manager concurrently as Legal Counsel. But as it is, I.S. No. 97-240 is labor-related and
Respondent was a former Personnel Manager of Taggat.
xxxx
While Respondent ceased his relations with Taggat in 1992 and the unpaid salaries being sought in I.S. No.
97-240 were of the years 1996 and 1997, the employees and management involved are the very
personalities he dealt with as Personnel Manager and Legal Counsel of Taggat. Respondent dealt with
these persons in his fiduciary relations with Taggat. Moreover, he was an employee of the corporation and part
of its management.
xxxx
As to the propriety of receiving "Retainer Fees" or "consultancy fees" from herein Complainant while being an
Assistant Provincial Prosecutor, and for rendering legal consultancy work while being an Assistant Provincial
Prosecutor, this matter had long been settled. Government prosecutors are prohibited to engage in the
private practice of law (see Legal and Judicial Ethics, Ernesto Pineda, 1994 ed., p. 20; People v. Villanueva,
14 SCRA 109; Aquino v. Blanco 70 Phil. 647). The act of being a legal consultant is a practice of law. To
engage in the practice of law is to do any of those acts that are characteristic of the legal profession (In re:
David, 93 Phil. 461). It covers any activity, in or out of court, which required the application of law, legal
principles, practice or procedures and calls for legal knowledge, training and experience (PLA v. Agrava, 105
Phil. 173; People v. Villanueva, 14 SCRA 111; Cayetano v. Monsod, 201 SCRA 210).
Respondent clearly violated this prohibition.
As for the secondary accusations of harassing certain employees of Taggat and instigating the filing of criminal
complaints, we find the evidence insufficient.
Accordingly, Respondent should be found guilty of conflict of interest, failure to safeguard a former client’s
interest, and violating the prohibition against the private practice of law while being a government prosecutor.
The IBP Board of Governors forwarded the Report to the Court as provided under Section 12(b), Rule 139B 41 of the Rules of Court.
The Ruling of the Court
The Court exonerates respondent from the charge of violation of Rule 15.03 of the Code of Professional
Responsibility ("Code"). However, the Court finds respondent liable for violation of Rule 1.01, Canon 1 of the
Code of Professional Responsibility against unlawful conduct. 42 Respondent committed unlawful conduct
40
when he violated Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and
Employees or Republic Act No. 6713 ("RA 6713").
Canon 6 provides that the Code "shall apply to lawyers in government service in the discharge of their official
duties." 43 A government lawyer is thus bound by the prohibition "not [to] represent conflicting
interests." 44However, this rule is subject to certain limitations. The prohibition to represent conflicting interests
does not apply when no conflict of interest exists, when a written consent of all concerned is given after a full
disclosure of the facts or when no true attorney-client relationship exists. 45 Moreover, considering the serious
consequence of the disbarment or suspension of a member of the Bar, clear preponderant evidence is
necessary to justify the imposition of the administrative penalty. 46
Respondent is also mandated under Rule 1.01 of Canon 1 not to engage in "unlawful x x x conduct." Unlawful
conduct includes violation of the statutory prohibition on a government employee to "engage in the private
practice of [his] profession unless authorized by the Constitution or law, provided, that such practice will not
conflict or tend to conflict with [his] official functions." 47
Complainant’s evidence failed to substantiate the claim that respondent represented conflicting interests
In Quiambao v. Bamba, 48 the Court enumerated various tests to determine conflict of interests. One test of
inconsistency of interests is whether the lawyer will be asked to use against his former client any confidential
information acquired through their connection or previous employment. 49 In essence, what a lawyer owes his
former client is to maintain inviolate the client’s confidence or to refrain from doing anything which will
injuriously affect him in any matter in which he previously represented him. 50
In the present case, we find no conflict of interests when respondent handled the preliminary investigation of
the criminal complaint filed by Taggat employees in 1997. The issue in the criminal complaint pertains to nonpayment of wages that occurred from 1 April 1996 to 15 July 1997. Clearly, respondent was no longer
connected with Taggat during that period since he resigned sometime in 1992.
In order to charge respondent for representing conflicting interests, evidence must be presented to prove that
respondent used against Taggat, his former client, any confidential information acquired through his previous
employment. The only established participation respondent had with respect to the criminal complaint is that he
was the one who conducted the preliminary investigation. On that basis alone, it does not necessarily follow
that respondent used any confidential information from his previous employment with complainant or Taggat in
resolving the criminal complaint.
The fact alone that respondent was the former Personnel Manager and Retained Counsel of Taggat and the
case he resolved as government prosecutor was labor-related is not a sufficient basis to charge respondent for
representing conflicting interests. A lawyer’s immutable duty to a former client does not cover transactions that
occurred beyond the lawyer’s employment with the client. The intent of the law is to impose upon the lawyer
the duty to protect the client’s interests only on matters that he previously handled for the former client and not
for matters that arose after the lawyer-client relationship has terminated.
Further, complainant failed to present a single iota of evidence to prove her allegations. Thus, respondent is
not guilty of violating Rule 15.03 of the Code.
Respondent engaged in the private practice of law while working as a government prosecutor
The Court has defined the practice of law broadly as –
x x x 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." 51
"Private practice of law" contemplates a succession of acts of the same nature habitually or customarily
holding one’s self to the public as a lawyer. 52
Respondent argues that he only rendered consultancy services to Taggat intermittently and he was not a
retained counsel of Taggat from 1995 to 1996 as alleged. This argument is without merit because the law does
not distinguish between consultancy services and retainer agreement. For as long as respondent performed
acts that are usually rendered by lawyers with the use of their legal knowledge, the same falls within the ambit
of the term "practice of law."
Nonetheless, respondent admitted that he rendered his legal services to complainant while working as a
government prosecutor. Even the receipts he signed stated that the payments by Taggat were for "Retainer’s
fee." 53 Thus, as correctly pointed out by complainant, respondent clearly violated the prohibition in RA 6713.
However, violations of RA 6713 are not subject to disciplinary action under the Code of Professional
Responsibility unless the violations also constitute infractions of specific provisions of the Code of Professional
Responsibility. Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 – the Code of Conduct
and Ethical Standards for Public Officials and Employees – unless the acts involved also transgress provisions
of the Code of Professional Responsibility.
Here, respondent’s violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which mandates
that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." Respondent’s admission
that he received from Taggat fees for legal services while serving as a government prosecutor is an unlawful
conduct, which constitutes a violation of Rule 1.01.
Respondent admitted that complainant also charged him with unlawful conduct when respondent stated in his
Demurrer to Evidence:
In this instant case, the complainant prays that the respondent be permanently and indefinitely suspended or
disbarred from the practice of the law profession and his name removed from the Roll of Attorneys on the
following grounds:
xxxx
d) that respondent manifested gross misconduct and gross violation of his oath of office and in his dealings
with the public. 54
On the Appropriate Penalty on Respondent
The appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the
surrounding facts. 55
Under Civil Service Law and rules, the penalty for government employees engaging in unauthorized private
practice of profession is suspension for six months and one day to one year. 56 We find this penalty appropriate
for respondent’s violation in this case of Rule 1.01, Canon 1 of the Code of Professional Responsibility.
WHEREFORE, we find respondent Atty. Carlos B. Sagucio GUILTY of violation of Rule 1.01, Canon 1 of the
Code of Professional Responsibility. Accordingly, we SUSPEND respondent Atty. Carlos B. Sagucio from the
practice of law for SIX MONTHS effective upon finality of this Decision.
Let copies of this Decision be furnished the Office of the Bar Confidant to be appended to respondent’s
personal record as an attorney, the Integrated Bar of the Philippines, the Department of Justice, and all courts
in the country for their information and guidance.
SO ORDERED.
FIRST DIVISION
WILFREDO M. CATU, A.C. No. 5738
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
ATTY. VICENTE G. RELLOSA,
Respondent. Promulgated:
February 19, 2008
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RESOLUTION
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a lot[1] 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. DiazCatu[2] and Antonio Pastor[3] 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 Manila[4] 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
barangays 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 IBPs 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, respondents 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 respondents 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 7160[12] 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 lawyers
oath[20] 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.
FIRST DIVISION
WILFREDO M. CATU, A.C. No. 5738
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
ATTY. VICENTE G. RELLOSA,
Respondent. Promulgated:
February 19, 2008
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RESOLUTION
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a lot[1] 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. DiazCatu[2] and Antonio Pastor[3] 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 Manila[4] 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
barangays 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 IBPs 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, respondents 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 respondents 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 7160[12] 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 lawyers
oath[20] 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.
EN BANC
[AC-5365. April 27, 2005]
Spouses
FRANKLIN
and
LOURDES
DECIEMBRE, respondent.
OLBES, complainants,
vs.
Atty.
VICTOR
V.
DECISION
PANGANIBAN, J.:
Constituting a serious transgression of the Code of Professional Responsibility was the malevolent act of
respondent, who filled up the blank checks entrusted to him as security for a loan by writing on those checks
amounts that had not been agreed upon at all, despite his full knowledge that the loan they were meant to secure
had already been paid.
The Case
Before us is a verified Petition[1] for the disbarment of Atty. Victor V. Deciembre, filed by Spouses Franklin
and Lourdes Olbes with the Office of the Bar Confidant of this Court. Petitioners charged respondent with willful
and deliberate acts of dishonesty, falsification and conduct unbecoming a member of the Bar. After he had filed
his Comment[2] on the Petition, the Court referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.
The IBPs Commission on Bar Discipline (CBD), through Commissioner Caesar R. Dulay, held several
hearings. During those hearings, the last of which was held on May 12, 2003,[3]the parties were able to present
their respective witnesses and documentary evidence. After the filing of the parties respective formal offers of
evidence, as well as petitioners Memorandum,[4] the case was considered submitted for resolution. Subsequently,
the commissioner rendered his Report and Recommendation dated January 30, 2004, which was later adopted and
approved by the IBP Board of Governors in its Resolution No. XV-2003-177 dated July 30, 2004.
The Facts
In their Petition, Spouses Olbes allege that they were government employees working at the Central Post
Office, Manila; and that Franklin was a letter carrier receiving a monthly salary of P6,700, and Lourdes, a mail
sorter, P6,000.[5]
Through respondent, Lourdes renewed on July 1, 1999 her application for a loan from Rodela Loans, Inc.,
in the amount of P10,000. As security for the loan, she issued and delivered to respondent five Philippine
National Bank (PNB) blank checks (Nos. 0046241-45), which served as collateral for the approved loan as well
as any other loans that might be obtained in the future.[6]
On August 31, 1999, Lourdes paid respondent the amount of P14,874.37 corresponding to the loan plus
surcharges, penalties and interests, for which the latter issued a receipt,[7]herein quoted as follows:
August 31, 1999
Received the amount of P14,874.37 as payment of the loan of P10,000.00 taken earlier by Lourdes Olbes.
(Sgd.) Atty. Victor V. Deciembre
8-31-99
P10,000.00
PNB Check No. 46241 8/15/99[8]
Notwithstanding the full payment of the loan, respondent filled up four (of the five) blank PNB Checks (Nos.
0046241, 0046242, 0046243 and 0046244) for the amount of P50,000 each, with different dates of maturity -August 15, 1999, August 20, 1999, October 15, 1999 and November 15, 1999, respectively.[9]
On October 19, 1999, respondent filed before the Provincial Prosecution Office of Rizal an AffidavitComplaint against petitioners for estafa and violation of Batas Pambansa (BP) 22. He alleged therein that on
July 15, 1999, around one-thirty in the afternoon at Cainta, Rizal, they personally approached him and requested
that he immediately exchange with cash their postdated PNB Check Nos. 0046241 and 0046242
totaling P100,000.[10]
Several months after, or on January 20, 2000, respondent filed against petitioners another AffidavitComplaint for estafa and violation of BP 22. He stated, among others, that on the same day, July 15, 1999,
around two oclock in the afternoon at Quezon City, they again approached him and requested that he exchange
with cash PNB Check Nos. 0046243 and 0046244 totaling P100,000.[11]
Petitioners insisted that on the afternoon of July 15, 1999, they never went either to Cainta, Rizal, or to
Quezon City to transact business with respondent. Allegedly, they were in their office at the time, as shown by
their Daily Time Records; so it would have been physically impossible for them to transact business in Cainta,
Rizal, and, after an interval of only thirty minutes, in Quezon City, especially considering the heavy traffic
conditions in those places.[12]
Petitioners averred that many of their office mates -- among them, Juanita Manaois, Honorata Acosta and
Eugenia Mendoza -- had suffered the same fate in their dealings with respondent.[13]
In his Comment,[14] respondent denied petitioners claims, which he called baseless and devoid of any truth
and merit. Allegedly, petitioners were the ones who had deceived him by not honoring their commitment
regarding their July 15, 1999 transactions. Those transactions, totaling P200,000, had allegedly been covered
by their four PNB checks that were, however, subsequently dishonored due to ACCOUNT CLOSED. Thus, he
filed criminal cases against them. He claimed that the checks had already been fully filled up when petitioners
signed them in his presence. He further claimed that he had given them the amounts of money indicated in the
checks, because his previous satisfactory transactions with them convinced him that they had the capacity to
pay.
Moreover, respondent said that the loans were his private and personal transactions, which were not in any
way connected with his profession as a lawyer. The criminal cases against petitioners were allegedly private
actions intended to vindicate his rights against their deception and violation of their obligations. He maintained
that his right to litigate should not be curtailed by this administrative action.
Report of the Investigating Commissioner
In his Report and Recommendation, Commissioner Dulay recommended that respondent be suspended
from the practice of law for two years for violating Rule 1.01 of the Code of Professional Responsibility.
The commissioner said that respondents version of the facts was not credible. Commissioner Dulay
rendered the following analysis and evaluation of the evidence presented:
In his affidavit-complaint x x x executed to support his complaint filed before the Provincial Prosecution Office of Rizal
respondent stated that:
2. That last July 15, 1999, in the jurisdiction of Cainta, Rizal, both LOURDES E. OLBES and FRANKLIN A. OLBES x x
x, personally met and requested me to immediately exchange with cash, right there and then, their postdated checks
totaling P100,000.00 then, to be immediately used by them in their business venture.
Again in his affidavit-complaint executed to support his complaint filed with the Office of the City Prosecutor of Quezon
City respondent stated that:
2. That last July 15, 1999, at around 2PM, in the jurisdiction of Quezon City, M.M., both LOURDES E. OLBES and
FRANKLIN A. OLBES x x x, personally met and requested me to immediately exchange with cash, right there and then,
their postdated checks totaling P100,000.00 then, to be immediately used by them in their business venture.
The above statements executed by respondent under oath are in direct contrast to his testimony before this Commission on
cross-examination during the May 12, 2003 hearing, thus:
ATTY PUNZALAN: (continuing)
Q. Based on these four (4) checks which you claimed the complainant issued to you, you filed two
separate criminal cases against them, one, in Pasig City and the other in Quezon City, is that
correct?
A. Yes, Your Honor, because the checks were deposited at different banks.
Q. These four checks were accordingly issued to you by the complainants on July 15, 1999, is that
correct?
A. I will consult my records, You Honor, because its quite a long time. Yes, Your Honor, the first two
checks is in the morning and the next two checks is in the afternoon (sic).
COMM. DULAY:
Which are the first two checks?
ATTY. DECIEMBRE:
The first two checks covering check Nos. 46241 and 46242 in the morning. And Check No. 46243
and 46244 in the afternoon, Your Honor.
ATTY. PUNZALAN:
Q. Could you recall what particular time in the morning that these two checks with number 0046241
and 0046242 xxx have been issued to you?
A. I could not remember exactly but in the middle part of the morning around 9:30 to 10:00.
Q. This was issued to you in what particular place?
A. Here in my office at Garnet Road, Ortigas Center, Pasig City.
Q. Is that your house?
A. No, its not my house?
Q. What is that, is that your law office?
A. That is my retainer client.
Q. What is the name of that retainer client of yours?
ATTY. DECIEMBRE:
Your Honor, may I object because what is the materiality of the question?
ATTY. PUNZALAN:
That is very material. I am trying to test your credibility because according to you these checks
have been issued in Pasig in the place of your client on a retainer. Thats why I am asking your
client
COMM. DULAY:
The name of the client is not material I think. It is enough that he said it was issued here in Pasig.
What building?
ATTY. DECIEMBRE:
AIC Corporate Center, Your Honor.
COMM. DULAY:
What is the materiality of knowing the name of his clients office?
ATTY. PUNZALAN:
Because, Your Honor, the materiality is to find out whether he is telling the truth. The place, Your
Honor, according to the respondent is his client. Now I am asking who is that client?
COMM. DULAY:
Your answer.
ATTY. DECIEMBRE:
A. It is AIC Realty Corporation at AIC Building.
Q. And the same date likewise, the complainants in the afternoon issued PNB Check Nos. 0046243
and 0046244, is that correct?
A. Yes.
Q. So would you want to tell this Honorable office that there were four checks issued in the place of
your client in Pasig City, two in the morning and two in the afternoon?
A. That is correct, sir.
Respondent was clearly not being truthful in his narration of the transaction with the complainants. As between his
version as to when the four checks were given, we find the story of complainant[s] more credible. Respondent has
blatantly distorted the truth, insofar as the place where the transaction involving the four checks took place. Such
distortion on a very material fact would seriously cast doubt on his version of the transaction with complainants.
Furthermore respondents statements as to the time when the transactions took place are also obviously and glaringly
inconsistent and contradicts the written statements made before the public prosecutors. Thus further adding to the lack of
credibility of respondents version of the transaction.
Complainants version that they issued blank checks to respondent as security for the payment of a loan of P10,000.00 plus
interest, and that respondent filled up the checks in amounts not agreed upon appears to be more credible. Complainants
herein are mere employees of the Central Post Office in Manila who had a previous loan of P10,000.00 from respondent
and which has since been paid x x x. Respondent does not deny the said transaction. This appears to be the only previous
transaction between the parties. In fact, complainants were even late in paying the loan when it fell due such that they had
to pay interest. That respondent would trust them once more by giving them another P200,000.00 allegedly to be used for
a business and immediately release the amounts under the circumstances described by respondent does not appear credible
given the background of the previous transaction and personal circumstances of complainants. That respondent who is a
lawyer would not even bother to ask from complainants a receipt for the money he has given, nor bother to verify and ask
them what businesses they would use the money for contributes further to the lack of credibility of respondents version.
These circumstances really cast doubt as to the version of respondent with regard to the transaction. The resolution of the
public prosecutors notwithstanding we believe respondent is clearly lacking in honesty in dealing with the complainants.
Complainant Franklin Olbes had to be jailed as a result of respondents filing of the criminal cases. Parenthetically, we
note that respondent has also filed similar cases against the co-employees of complainants in the Central Post Office and
respondent is facing similar complaints in the IBP for his actions.[15]
The Courts Ruling
We agree with the findings and conclusions of Commissioner Dulay, as approved and adopted by the IBP
Board of Governors. However, the penalty should be more severe than what the IBP recommended.
Respondents Administrative Liability
Membership in the legal profession is a special privilege burdened with conditions. [16] It is bestowed upon
individuals who are not only learned in the law, but also known to possess good moral character. [17] A lawyer is
an oath-bound servant of society whose conduct is clearly circumscribed by inflexible norms of law and ethics,
and whose primary duty is the advancement of the quest for truth and justice, for which he [or she] has sworn to
be a fearless crusader.[18]
By taking the lawyers oath, an attorney becomes a guardian of truth and the rule of law, and an indispensable
instrument in the fair and impartial administration of justice.[19] Lawyers should act and comport themselves with
honesty and integrity in a manner beyond reproach, in order to promote the publics faith in the legal profession. [20]
The Code of Professional Responsibility specifically mandates the following:
Canon 1. A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal
processes.
xxxxxxxxx
Canon 7. A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of
the Integrated Bar.
xxxxxxxxx
Rule 7.03. A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he,
whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
A high standard of excellence and ethics is expected and required of members of the bar. [21] Such conduct
of nobility and uprightness should remain with them, whether in their public or in their private lives. As officers of
the courts and keepers of the publics faith, they are burdened with the highest degree of social responsibility and
are thus mandated to behave at all times in a manner consistent with truth and honor.[22]
The oath that lawyers swear to likewise impresses upon them the duty of exhibiting the highest degree of
good faith, fairness and candor in their relationships with others. The oath is a sacred trust that must be upheld
and kept inviolable at all times. Thus, lawyers may be disciplined for any conduct, whether in their professional
or in their private capacity, if such conduct renders them unfit to continue to be officers of the court.[23]
In the present case, the IBP commissioner gave credence to the story of petitioners, who said that they had
given five blank personal checks to respondent at the Central Post Office in Manila as security for the P10,000
loan they had contracted. Found untrue and unbelievable was respondents assertion that they had filled up the
checks and exchanged these with his cash at Quezon City and Cainta, Rizal. After a careful review of the records,
we find no reason to deviate from these findings.
Under the circumstances, there is no need to stretch ones imagination to arrive at an inevitable conclusion.
Respondent does not deny the P10,000 loan obtained from him by petitioners. According to Franklin Olbes
testimony on cross-examination, they asked respondent for the blank checks after the loan had been paid. On
the pretext that he was not able to bring the checks with him,[24] he was not able to return them. He thus
committed abominable dishonesty by abusing the confidence reposed in him by petitioners. It was their high
regard for him as a member of the bar that made them trust him with their blank checks. [25]
It is also glaringly clear that the Code of Professional Responsibility was seriously transgressed by his
malevolent act of filling up the blank checks by indicating amounts that had not been agreed upon at all and
despite respondents full knowledge that the loan supposed to be secured by the checks had already been paid.
His was a brazen act of falsification of a commercial document, resorted to for his material gain.
And he did not stop there. Because the checks were dishonored upon presentment, respondent had the
temerity to initiate unfounded criminal suits against petitioners, thereby exhibiting his vile intent to have them
punished and deprived of liberty for frustrating the criminal duplicity he had wanted to foist on them. As a matter
of fact, one of the petitioners (Franklin) was detained for three months[26] because of the Complaints. Respondent
is clearly guilty of serious dishonesty and professional misconduct. He committed an act indicative of moral
depravity not expected from, and highly unbecoming, a member of the bar.
Good moral character is an essential qualification for the privilege to enter into the practice of law. It is
equally essential to observe this norm meticulously during the continuance of the practice and the exercise of
the privilege.[27] Good moral character includes at least common honesty.[28] No moral qualification for bar
membership is more important than truthfulness and candor. [29] The rigorous ethics of the profession places a
premium on honesty and condemns duplicitous behavior.[30] Lawyers must be ministers of truth. Hence, they
must not mislead the court or allow it to be misled by any artifice. In all their dealings, they are expected to act
in good faith.[31]
Deception and other fraudulent acts are not merely unacceptable practices that are disgraceful and
dishonorable;[32] they reveal a basic moral flaw. The standards of the legal profession are not satisfied by conduct
that merely enables one to escape the penalties of criminal laws.[33]
Considering the depravity of the offense committed by respondent, we find the penalty recommended by
the IBP of suspension for two years from the practice of law to be too mild. His propensity for employing deceit
and misrepresentation is reprehensible. His misuse of the filled-up checks that led to the detention of one
petitioner is loathsome.
In Eustaquio v. Rimorin,[34] the forging of a special power of attorney (SPA) by the respondent to make it
appear that he was authorized to sell anothers property, as well as his fraudulent and malicious inducement of
Alicia Rubis to sign a Memorandum of Agreement to give a semblance of legality to the SPA, were sanctioned
with suspension from the practice of law for five years. Here, the conduct of herein respondent is even worse.
He used falsified checks as bases for maliciously indicting petitioners and thereby caused the detention of one
of them.
WHEREFORE, Atty. Victor V. Deciembre is found guilty of gross misconduct and violation of Rules 1.01 and
7.03 of the Code of Professional Responsibility. He is hereby indefinitely SUSPENDED from the practice of law
effective immediately. Let copies of this Decision be furnished all courts as well as the Office of the Bar Confidant,
which is directed to append a copy to respondents personal record. Let another copy be furnished the National
Office of the Integrated Bar of the Philippines.
SO ORDERED.