A.M. No.

RTJ-07-2076

October 12, 2010

OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. JUDGE ALBERTO L. LERMA, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. RTJ-07-2077 ATTY. LOURDES A. ONA, Complainant, vs. JUDGE ALBERTO L. LERMA, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. RTJ-07-2078 JOSE MARI L. DUARTE, Complainant, vs. JUDGE ALBERTO L. LERMA, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. RTJ-07-2079 RET. GENERAL MELITON D. GOYENA, Complainant, vs. JUDGE ALBERTO L. LERMA, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. RTJ-07-2080 OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. JUDGE ALBERTO L. LERMA, Respondent. DECISION PER CURIAM: Five (5) administrative cases were filed with the Office of the Court Administrator (OCA) against Judge Alberto L. Lerma (respondent judge) of the Regional Trial Court (RTC), Branch 256, Muntinlupa City, for violating Supreme Court rules, directives, and circulars, for making untruthful statements in his certificates of service, for gross ignorance of the law and/or gross negligence, for delay in rendering an order, for abusing judicial authority and discretion, and for serious irregularity. In a memorandum1 dated September 24, 2007, embodying the report and recommendation of the OCA, then Court Administrator Christopher O. Lock (Court Administrator Lock) referred to then Chief Justice Reynato S. Puno (Chief Justice Puno) the five administrative cases filed against respondent judge, to wit: a) Administrative Matter No. 98-6179-RTC (Re: Request for transfer of arraignment/trial of Criminal Case No. 3639-R); b) OCA IPI No. 07-2644-RTJ ([Ret.]

General Meliton D. Goyena v. Judge Alberto L. Lerma); c) OCA IPI No. 07-2643-RTJ (Jose Mari L. Duarte v. Judge Alberto L. Lerma); d) OCA IPI No. 07-2639-RTJ (Atty. Lourdes A. Ona v. Judge Alberto L. Lerma); and e) OCA IPI No. 07-2654-RTJ (Office of the Court Administrator v. Judge Alberto L. Lerma). Per resolution2 of the Supreme Court En Banc dated September 25, 2007, the foregoing cases were respectively redocketed as regular administrative cases, as follows: A.M. Nos. RTJ-07-2076, RTJ-07-2079, RTJ-07-2078, RTJ-07-2077, and RTJ-07-2080. Thereafter, the cases were referred to an Investigating Justice3 of the Court of Appeals (CA) for investigation and recommendation. We shall discuss the cases individually, taking into account their peculiar factual surroundings and the findings and recommendations of the Investigating Justice. a.) A.M. No. RTJ-07-2076 On November 27, 1995, Ruperto Pizarro y Bruno (accused) was charged with Violation of Presidential Decree No. 1866 in an information filed with the RTC, Branch 53, Rosales, Pangasinan and docketed as Criminal Case No. 3639-R.4 Since accused was already detained at the Quezon City Jail due to the pendency of another criminal case (Criminal Case No. Q95-64130-31) filed against him. The court ordered that all notices of hearings and proceedings in Criminal Case No. 3639-R be forwarded to the Jail Warden of the Quezon City Jail.5 Subsequently, in a letter dated March 25, 1998,6 Officerin-Charge/City Warden Arnold Buenacosa of the Quezon City Jail informed Judge Teodorico Alfonzo B. Bauzon (Judge Bauzon), RTC of Rosales, Pangasinan, that accused was transferred to the Bureau of Corrections in Muntinlupa City on March 21, 1998 in compliance with the commitment order and decision in Criminal Case No. Q-95-64130-31 of the RTC, Branch 82, Quezon City. The Supreme Court, in a resolution7 dated June 30, 1998, directed (1) the Clerk of Court of the RTC, Branch 53, Rosales, Pangasinan, to forward the records of Criminal Case No. 3639-R to the Executive Judge, RTC, Muntinlupa City, for appropriate action; (2) the Executive Judge, RTC, Muntinlupa City, to raffle the case among the judges to arraign the accused and consequently take his testimony; and (3) the Clerk of Court, RTC, Muntinlupa City, to return the records to the RTC, Branch 53, Rosales, Pangasinan, for the continuation of the proceedings. Pursuant to the Supreme Court resolution, Criminal Case No. 3639-R8 was raffled to RTC, Branch 256, Muntinlupa City, presided by respondent judge. Accused was arraigned on September 29, 1998. Thereafter, respondent judge proceeded to receive the evidence for the prosecution. On February 7, 2003, the prosecution formally offered its exhibits, but the firearm subject of the information was not included in the formal offer. On June 27, 2005, the accused, through Atty. Abelardo D. Tomas of the Public Attorneys Office (PAO), filed a motion for leave of court to file demurrer to prosecutions evidence.9 Respondent judge granted the said motion on July

26, 2005.10 On November 8, 2005, Atty. Rodney Magbanua of the PAO filed a demurrer to prosecutions evidence,11contending that, without the subject firearm, the prosecution failed to prove an essential element of the offense. On February 28, 2007, respondent judge issued an order, granting the demurrer to prosecutions evidence and dismissing the case for insufficiency of evidence.12 In a memorandum13 dated September 24, 2007, the OCA charged respondent judge with exceeding his authority under the Supreme Court resolution dated June 30, 1998 in A.M. No. 98-6-179-RTC. According to the OCA, the authority given to respondent judge under the resolution was clearly limited to the arraignment of the accused and the taking of his testimony; it did not authorize respondent judge to decide the merits of the case. The OCA contended that the act of respondent judge constituted violation of a Supreme Court directive, a less serious offense, under Section 9(4), Rule 140, Revised Rules of Court. In his comment dated November 16, 2007, respondent judge asserted that there was neither a conscious nor a deliberate intent on his part to disobey any directive of the Supreme Court when he granted the demurrer to evidence filed by the accused in Criminal Case No. 3639-R. He claimed that, through inadvertence, he was not able to recall the limits of the referral made to him, and stressed that he ruled on the merits of the case in a way not tainted with fraud, dishonesty, or corruption. He emphasized that he acted on the demurrer to evidence because of the inadequacy of the evidence for the prosecution and because of the failure of the latter to object to the demurrer. He maintained that it would have been wrong for him to add to the penalty already being served by the accused when there was no evidence to warrant the detention of the latter for the unproved offense.14 Under Section 9(4), Rule 140, Revised Rules of Court, failure to obey the Courts resolution is a less serious offense that carries a penalty of suspension from office without salary and other benefits for not less than one (1) month or more than three (3) months, or a fine of more than P10,000.00 but not exceeding P20,000.00. The Investigating Justice recommends that a fine of P15,000.00 be imposed upon respondent, based on the following findings: In criminal actions, it is a fundamental rule that venue is jurisdictional. The place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction. Thus, a court cannot exercise jurisdiction over a person charged with an offense committed outside the limited territory. Furthermore, the jurisdiction of a court over a criminal case is determined by the allegations in the complaint or information.15 The demurrer to evidence filed by the accused cited the accusatory portion of the information which charged him with unlawful possession of a caliber .30 U.S. carbine with two magazines and twenty-five (25) rounds of ammunition. The information clearly stated that the accused possessed the carbine, magazines, and ammunitions in Barangay Cabalaongan Sur, Municipality of Rosales, Province of

Pangasinan. Had respondent judge exercised a moderate degree of caution before resolving the demurrer to evidence, a mere perusal of the records would have reminded him that his court was only authorized to arraign the accused, to receive the evidence in the said case, and to return the records of the case to the RTC, Branch 53, Rosales, Pangasinan for continuation of the proceedings. In every case, a judge shall endeavor diligently to ascertain the facts.16 Respondent judge was found wanting in the diligence required of him. We agree with the Investigating Justice in finding respondent judge guilty of violating a Supreme Court directive, and impose upon him a fine of P15,000.00. b.) A.M. No. RTJ-07-2080 In a letter17 dated August 28, 2007, Godofredo R. Galindez, Jr., (Godofredo), president of the Alabang Country Club, Inc. (Alabang Country Club), in response to the letter dated August 21, 2007 of Court Administrator Lock, stated that respondent judge played golf at the Alabang Country Club on the following dates and tee-off time: Date April 8, 2000 July 21, 2000 August 4, 2000 November 28, 2000 May 17, 2001 September 29, 2001 March 5, 2002 June 19, 2002 February 12, 2004 February 28, 2005 Tee off-time 12:00 P.M. 1:08 P.M. 1:20 P.M. 10:00 A.M. 3:05 P.M. 12:56 P.M. 1:00 P.M. 7:12 A.M. 1:35 P.M. 10:41 A.M.

With the exception of May 17, 2001, during which respondent judge allegedly played nine (9) holes of golf, Godofredo stated in his letter that the former played eighteen (18) holes of golf on all the aforestated dates. In another letter18 dated September 3, 2007, Hirofumi Hotta (Hirofumi), operations manager of TAT Filipinas Golf Club (Tat Filipinas), in answer to an inquiry made by Court Administrator Lock, stated that respondent judge visited the said golf club and appeared to have played golf there on the following dates all Thursdays and time: Date April 14, 2005 April 28, 2005 August 18, 2005 August 25, 2005 Time 1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M.

November 17, 2005 November 24, 2005 December 15, 2005 January 26, 2006 February 9, 2006 March 2, 2006 March 23, 2006 April 6, 2006 April 27, 2006 June 15, 2006 December 14, 2006

1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M. 1:30 P.M.

Godofredo testified that the dates and time when respondent judge played golf at the Alabang Country Club, as mentioned in his letter, are based on the logbook entries made by the starter in the country club. A starter, explained Godofredo, is a person who records in the logbook the names of the individuals who play in the golf course. The starter may be the player himself or a member who brings in guests to play golf. On cross-examination, Godofredo admitted that he is not the custodian of the logbook; that he is neither the starter nor the person who wrote the entries in the logbook; and that he does not recognize in whose handwriting the entries were made. Hirofumi, the operations manager of TAT Filipinas, testified that Aquino, the front desk receptionist in the golf club, made the listing of the respective dates and time when respondent judge played at TAT Filipinas based on the data stored in their office computer. Aquino, who had been employed by the company for fifteen (15) years, and had been working as its front desk receptionist for six (6) years, testified that she saw respondent judge sign the registered member forms at the golf club prior to playing golf. The Investigating Justice found as insufficient the evidence that the OCA presented to show that respondent judge played golf at the Alabang Country Club on the dates alleged, but found substantial evidence that respondent judge played golf at TAT Filipinas on the dates and time indicated in Hirofumis letter dated September 3, 2007. The testimony of Aquino, along with the certification issued by Hermogena, that respondent judge did not file any leave of absence on the dates indicated in Hirofumis letter, indubitably established that respondent judge violated Supreme Court Memorandum Order dated November 19, 1973, Administrative Circular No. 3-99 dated January 15, 1999, and Administrative Circular No. 5 dated October 4, 1988. Supreme Court Memorandum Order dated November 19, 1973 provides for the observance by judges, among other officials and employees in the judiciary, of a five-day fortyhour week schedule which shall be from 8:00 a.m. to 12:00 p.m. and from 12:30 p.m. to 4:30 p.m. from Mondays to Fridays. Violation of Supreme Court rules, directives, and circulars, and making untruthful statements in the certificate of service are considered less serious charges under Section 9, Rule 140 of the Rules of Court. Under Section 11(B) of Rule 140, these acts may be punished by suspension from office without salary and other benefits for not less than one (1) month or more than three (3) months, or a fine of more than P10,000.00 but not exceedingP20,000.00. On the basis of the foregoing findings, we adopt the recommendation of the Investigating Justice that, in this administrative case, a fine of P15,000.00 be imposed upon respondent judge.

According to the OCA, its records in the Office of the Administrative Services show that respondent judge did not declare his absences on July 21, 2000, August 4, 2000, March 5, 2002, February 12, 2004, and February 28, 2005, during which he reportedly played golf at the Alabang Country Club. Further, in a certification19 dated September 5, 2007, Hermogena F. Bayani (Hermogena), Supreme Court Chief Judicial Staff Officer, Leave Division, OCA, stated that respondent judge did not file any application for a leave of absence on all the dates mentioned by Hirofumi in his letter dated September 3, 2007. These constituted violations of Supreme Court Memorandum Order dated November 19, 1973, Administrative Circular No. 3-99 dated January 15, 1999, and Administrative Circular No. 5 dated October 4, 1988.20 The OCA asserted that on the days that respondent judge played golf, he was lost to the judiciary for half the working/session hours on those days, positing that this is not merely truancy but also dishonesty and falsification of certificates of service. Respondent judge, in his comment, countered that contrary to the allegations of the OCA, he only played golf thrice in 2000, once in 2001, twice in 2002, six (6) times in 2005, and five (5) times in 2006 a total of eighteen (18) times in six years, or at the average of three (3) times a year. He argued that his playing golf 18 times in six years, or thrice a year, could not be reasonably characterized as habitual to the extent that it jeopardized the discharge of his functions as a judge. He alleged that since he shared his courtroom with the other judges in Muntinlupa, he only played golf on days when no other place was available for him to carry out his official functions. Likewise, he explained that, in 1996, his physician advised him to exercise more vigorously after he was diagnosed with diabetes and hypertension. Respondent judge also stressed that he had never missed a day in hearing cases pending in his sala.21 In the hearing conducted by the Investigating Justice on December 4, 2007, the OCA presented Godofredo, Hirofumi, and Sheila Aquino as witnesses.

c.) A.M. No. RTJ-07-2077 On January 24, 1995, the RTC, Branch 142, Makati City, rendered a decision in Civil Case No. 90-659, entitled Alexander Van Twest v. Gloria A. Anacleto and/or International Corporate Bank, ordering defendant bank (Interbank) or its successors-in-interest to release in favor of plaintiff Alexander Van Twest (Van Twest) the entire proceeds of Interbank Foreign Currency Trust Deposit (FCTD) No. 39156 in the amount of Deutsch Mark (DM) 260,000.00, including accrued interest and other earnings. The decision also directed defendant Gloria Anacleto to return to plaintiff the sum of DM 9,777.37 with interest thereon. The court ordered the defendants, jointly and severally, to pay plaintiff P500,000.00 as moral damages, P250,000.00 as exemplary damages, P200,000.00 as attorneys fees, and the costs of suit.22 However, even before the decision was rendered, Van Twest had disappeared and was believed to have been kidnapped and killed.23 Subsequently, Atty. Ernesto V. Perez (Atty. Perez), representing Van Twest, filed a Motion for Execution of Decision. In the motion, Atty. Perez informed the RTC of Makati City that, on October 30, 2006, the RTC, Branch 256, Muntinlupa City, with respondent judge presiding, granted the petition to appoint the former as administrator of the properties or estate of absentee Van Twest in Special Proceeding No. 97-045, entitled In the Matter of the Petition to Appoint an Administrator for the Estate of Absentee Alexander Van Twest a.k.a. Eugene Alexander Van West.24 On January 27, 2007, the RTC Branch 142, Makati City, granted the motion for execution.25 Union Bank of the Philippines (Union Bank) filed a Manifestation and Urgent Ex-Parte Motion dated May 23, 2007 in Special Proceeding No. 97-045, praying that the exercise by Atty. Perez of powers as administrator of absentee Van Twest be held in abeyance until the said manifestation and motion is heard. Because respondent judge was on official leave at the time of the filing of the Manifestation and Urgent Ex-Parte Motion, Judge Philip A. Aguinaldo, pairing judge of RTC Branch 256, Muntinlupa City, acted on the same, and, in an order dated May 28, 2007, granted Union Banks urgent exparte motion. Union Bank thereafter filed an Urgent Manifestation and Motion to Recall Writ of Execution/Garnishment in Civil Case No. 90-659, citing, in support thereof, the order dated May 28, 2007 issued by Judge Aguinaldo in Special Proceeding No. 97045. On June 1, 2007, Atty. Perez filed with the Muntinlupa RTC an Omnibus Motion: 1) To Lift or Set Aside Pairing Judges Order of May 28, 2007 for having been issued without jurisdiction, grave abuse of discretion and/or violation of due process of law; 2) To Cite Union Bank of the Philippines counsel for Indirect Contempt. At the hearing of the omnibus motion on June 6, 2007, respondent judge ordered Atty. Lourdes A. Ona (Atty. Ona), counsel for Union Bank, to file her Opposition and/or Comment to the said Motion within 10 days. Atty. Perez was given the same period from receipt of the Opposition and/or

Comment to file his Reply thereto, if necessary, and thereafter, the matter would be deemed submitted for resolution. On the same day, however, respondent judge issued another order bearing the same date, ruling that the bank had not shown any legal basis to set aside the courts decision of October 30, 2006, or to suspend the Letters of Administration issued to Atty. Perez pursuant thereto. The order then concluded that Atty. Perez may exercise all the powers granted to him as Administrator of the absentee Van Twest until further orders of the court. In a letter dated July 23, 2007, addressed to the OCA, complainant alleged that respondent judges issuance of the second order dated June 6, 2007 was irregular, in light of the following: 1) At the hearing held on June 6, 2007, the omnibus motion filed by Atty. Perez was deemed submitted for resolution only after the complainant shall have filed her comment/opposition thereto or until the 10-day period shall have expired; 2) The issuance of the second order dated June 6, 2007 was secretly railroaded to give Atty. Perez a ground to oppose Union Banks Urgent Manifestation and Motion to Recall Writ of Execution/Garnishment filed with the RTC, Branch 142, Makati City, in time for its hearing originally set on June 8, 2007; 3) Even the staff of respondent judge did not become aware of the second June 6, 2007 order until much later, since respondent judge never furnished complainant with a copy thereof until the latter made inquiries regarding the same; and 4) The contents of the second order dated June 6, 2007 contradicted the first order and rendered the pending incident moot and academic. Respondent judge, in his comment, denied the charge and argued that the same should be dismissed. The complainant, according to respondent judge, should instead be meted disciplinary penalties as a member of the bar. Notwithstanding the recommendation of the Investigating Justice, the Court finds that the actions of respondent judge constitute gross negligence and/or gross ignorance of the law. We have repeatedly held that to warrant a finding of gross ignorance of the law, it must be shown that the error is "so gross and patent as to produce an inference of bad faith."26 Gross negligence refers to negligence characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences insofar as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable.27 In the instant case, the issuance by respondent of divergent orders raises serious questions of impropriety that taint respondent judges credibility, probity, and integrity. Coupled with the clandestine issuance of the second order where the Union Bank counsel and even the judges own staff were left completely in the dark the action of respondent judge gives rise to an inference of bad faith. Indeed, we have ample reason to believe as Atty. Ona posits that the secretly-

issued second order was really intended to give Atty. Perez the ammunition to oppose Union Banks Urgent Manifestation and Motion to Recall Writ of Execution/Garnishment which was to be heard by the RTC of Makati City. Under the circumstances, the breach committed by respondent can be characterized as flagrant and palpable. This action of respondent judge violates Section 8 of Rule 140, and carries the penalty of dismissal from the service or suspension from office for more than three (3) months but not exceeding six (6) months, or a fine ofP20,000.00 but not exceeding P40,000.00. For this violation, we impose upon respondent judge the penalty of dismissal from the service, with forfeiture of all benefits, except earned leave credits, and perpetual disqualification from reemployment in the government service, including government-owned and controlled corporations. d) A.M. No. RTJ-07-2078 Jose Mari L. Duarte (complainant) is one of the defendants in Civil Case No. 2003-433, entitled "Eugene T. Mateo v. The Board of Governors of Ayala Alabang Village Association: Paolo V. Castano, Constantino A. Marcaida, Ruben P. Baes, Eric Yutuc, Roberto Santiago, Beatriz "Bettina" H. Pou, Edilberto Uichanco, Salvador S. Arceo, Jr., Benjamin Narciso, Guy L. Romualdez, and Jose Mari L. Duarte," for Declaration of the General Membership Meeting and Election of the Ayala Alabang Village Association (AAVA) as void ab initio, with prayer for the Issuance of a Preliminary Injunction and/or a Temporary Restraining Order (TRO) and Status Quo Order. Eugene T. Mateo filed the case on July 29, 2003 with the RTC, Muntinlupa City, and it was eventually raffled to the RTC, Branch 256, Muntinlupa City, presided over by respondent judge.28 On August 15, 2003, defendants Salvador S. Arceo, Jr. (Arceo) and Benjamin Narciso (Narciso) filed their answer with affirmative defenses and counterclaims, while all the other defendants filed a motion to dismiss. In moving for the dismissal of the case, all defendants invoked the trial courts lack of jurisdiction over the case and plaintiffs lack of cause of action. On September 2, 2003, plaintiff filed his opposition to motion to dismiss with motion to declare defendants in default. In an order dated September 12, 2003, respondent judge denied defendants motion to dismiss and plaintiffs motion to declare defendants in default, and set for hearing plaintiffs application for the issuance of a TRO. Respondent judge eventually denied the prayer of plaintiff for the issuance of a TRO on September 26, 2003. On November 25, 2003, respondent judge rendered a decision in favor of plaintiff, declaring the AAVAs general membership meeting held on June 15, 2003 void ab initio, and ordering that the status quo of the boards composition prior to the proceedings of June 15, 2003 be maintained. The respondent judge also enjoined defendants Arceo, Narciso, Guy L. Romualdez (Romualdez) and Jose Mari L. Duarte from further exercising the functions of the office they respectively hold. He directed the holding of another election of the AAVA board, and ordered the defendants to pay jointly and

severally the amount of P100,000.00 as and by way of attorneys fees. The respondent judge dismissed the defendants counterclaim. The aggrieved complainant, together with all the other defendants, appealed to the CA from the above-cited decision. On December 10, 2003, plaintiff filed with the RTC a petition to direct defendants to show cause why they should not be cited and thereafter punished for indirect contempt of court (petition for indirect contempt) for their alleged defiance of respondent judges decision dated November 25, 2003, as shown by their continued performance of duties as governors of Ayala Alabang Village, despite receipt of a copy of the said decision. On July 1, 2004, respondent judge issued an order declaring complainant, Arceo and Romualdez, guilty of indirect contempt, and ordering each of them to pay a fine in the amount of P30,000.00. Unperturbed, complainant and his co-defendants Arceo and Romualdez moved for reconsideration of the July 1, 2004 order. On September 24, 2004, respondent judge granted their motion for reconsideration, and reversed and set aside his order dated July 1, 2004. On June 29, 2007, the Special Sixteenth Division of the CA issued a resolution, ruling that the lower court should have dismissed the plaintiff-appellees Complaint for Declaration of the General Membership Meeting and Election of the AAVA as void ab initio with prayer for the Issuance of a Preliminary Injunction and/or TRO and Status Quo Order because it is the Housing and Land Use Regulatory Board that has jurisdiction over the dispute. On August 23, 2007, Mateo filed a complaint with the Supreme Court, contending that respondent judge did not have the judicial authority to hear and decide the issues involved in Civil Case No. 2003-433 for want of jurisdiction. According to complainant, this was brought to the attention of respondent judge, but the latter, being grossly ignorant of existing laws and rules, if not completely insolent of the same, and with grave abuse of discretion, took cognizance of the case. In his comment, respondent judge argued that the error he allegedly committed could be corrected by an available judicial remedy. He maintained that if he erroneously assumed jurisdiction over Civil Case No. 2003-433, the proper recourse available to complainant was not an administrative complaint, but a petition for certiorari under Rule 65 of the Rules of Court. The Investigating Justice recommended that the instant administrative case against respondent judge be dismissed. This Court takes the opposite view. It is true that to constitute gross ignorance of the law, it is not enough that the subject decision, order, or actuation of the judge in the performance of his official duties is contrary to existing law and jurisprudence but, most importantly, he must be moved by bad faith, fraud, dishonesty, or corruption.29

However, when the law is so elementary and the matter of jurisdiction is an elementary principle that judges should be knowledgeable of not to be aware of it constitutes gross ignorance of the law. Judges are expected to exhibit more than just cursory acquaintance with statutes and procedural rules. They are expected to keep abreast of our laws and the changes therein as well as with the latest decisions of the Supreme Court. They owe it to the public to be legally knowledgeable, for ignorance of the law is the mainspring of injustice. Judicial competence requires no less. It is a truism that the life chosen by a judge as a dispenser of justice is demanding. By virtue of the delicate position which he occupies in society, he is duty bound to be the embodiment of competence and integrity.30 On the matter of the order finding complainant guilty of indirect contempt, we also find the action of respondent judge sadly wanting. Section 4, Rule 71 of the same Rules provides: Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact butsaid petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.31 The Rules are unequivocal. Indirect contempt proceedings may be initiated only in two ways: (1) motu proprio by the court; or (2) through a verified petition and upon compliance with the requirements for initiatory pleadings. The procedural requirements are mandatory considering that contempt proceedings against a person are treated as criminal in nature.32 Conviction cannot be had merely on the basis of written pleadings.33 The records do not indicate that complainant was afforded an opportunity to rebut the charges against him. Respondent judge should have conducted a hearing in order to provide complainant the opportunity to adduce before the court documentary or testimonial evidence in his behalf. The hearing also allows the court a more thorough evaluation of the circumstances surrounding the case, including the chance to observe the accused present his side in open court and subject his defense to interrogation from the complainants or from the court itself.34 It must be remembered that the power to punish for contempt should be used sparingly with caution, restraint, judiciousness, deliberation, and due regard to the provisions

of the law and the constitutional rights of the individual.35 In this respect, respondent judge failed to measure up to the standards demanded of member of the judiciary. As already mentioned above, gross ignorance of the law or procedure is classified as a serious charge under Section 8(9), Rule 140, Revised Rules of Court, and a respondent found guilty of serious charge may be punished by: a) 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 governmentowned or controlled corporations, provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; b) suspension from office without salary and other benefits for more than three (3) months but not exceeding six (6) months; or c) a fine of more than P20,000.00 but not exceeding P40,000.00. In this case, we find respondent judge guilty of gross ignorance of the law, and impose upon him a fine ofP40,000.00. e.) A.M. No. RTJ-07-2079 On January 19, 2006, Bennie Cuason (Cuason) was charged before the RTC, Muntinlupa City, with estafa under Article 315, paragraph 2(a) of the Revised Penal Code, for defrauding Brigadier General Meliton D. Goyena (Gen. Goyena) (Ret.) by convincing the latter to invest, entrust, and/or deliver the amount of Twenty Million Pesos (P20,000,000.00) on the promise that the former would return the investment with interest, plus two (2) Condominium Certificates of Title over residential units on the 20st floor at Tower B of Diamond Bay Towers Condominium, with a total value of Nine Million Five Hundred Ninety-Two Thousand Pesos (P9,592,000.00). Gen. Goyena gave the amount of Twenty Million Pesos (P20,000,000.00) to the accused and received two (2) condominium certificates of title with numbers 6893 and 6894. After verification, complainant found that the condominium units were non-existent, or had not yet been constructed. The case was docketed as Criminal Case No. 06-179 and was raffled to RTC, Branch 204, Muntinlupa City, presided over by Judge Juanita T. Guerrero (Judge Guerrero). On February 14, 2006, accused Cuason, through counsel, filed with the RTC an entry of appearance with a plea to determine whether or not probable cause exists for the purpose of issuance of a warrant of arrest. Complainant, also through counsel, subsequently filed a Motion to deny the application for judicial determination of probable cause and to cite accused in contempt of this Honorable Court on the ground of forum shopping. On April 4, 2006, accused Cuason filed his comment and/or opposition thereto, and on April 10, 2006, accused Cuason filed a supplemental comment and/or opposition to the motion. With the designation of RTC, Branch 204, Muntinlupa City, as a special court for drug cases on May 2, 2006, the case was reraffled to the sala of respondent judge. After hearing the respective arguments of the parties, respondent judge issued

an omnibus order dated September 4, 2006, dismissing Criminal Case No. 06-179. The pertinent portions of the omnibus order read as follows: On this first issue, this Court, after a careful scrutiny of the arguments and evidence of both parties, believes that there was payment already made as to the principal obligation as admitted by the complainant in his affidavit dated September 20, 2005 (page 3, par. 17) and what is being left is the payment of interest which, under the premises, is in [the] form of condominium certificates. So also, while the complainant questions the authenticity of those certificates as well as the existence of [the] condominium units subject thereof, accused, indubitably, was able to satisfy this Court as to the authenticity of the questioned certificates and the existence of the units by showing proofs to that effect. On September 6, 2006, Gen. Goyena filed with the RTC a very urgent manifestation with motion for the court to conduct ocular inspection, and on September 22, 2006, he filed an omnibus motion for reconsideration, ocular inspection and inhibition, anchored on the following grounds: 1) as correctly found by the Office of the City Prosecutor of Muntinlupa City, the two (2) condominium units used in partly settling the liabilities of the accused to the private complainant do not exist a fact that should have been established by now, if only the court allowed the ocular inspection prayed for; 2) the court overlooked the pronouncement in the very case it has relied on, that "Allado and Salonga constitute exceptions to the general rule and may be invoked only if similar circumstances are clearly shown to exist"; and 3) the order dismissing the case was improperly or irregularly issued. On September 18, 2006, complainant filed a letter-complaint addressed to then Supreme Court Chief Justice Artemio Panganiban, charging respondent judge with abuse of judicial authority and discretion, serious irregularity, and gross ignorance of the law, allegedly shown by the latters act of willfully and knowingly reversing the well-grounded finding of probable cause made by the Office of the City Prosecutor of Muntinlupa City. Thereafter, respondent judge issued an order dated October 4, 2006, inhibiting himself from sitting in Criminal Case No. 06-179, and directing that the records of the case be forwarded to the Office of the Clerk of Court of the RTC, Muntinlupa City, for appropriate re-raffling. The case was eventually re-raffled to the RTC, Branch 206, Muntinlupa City, presided over by Judge Patricia Manalastasde Leon (Judge Manalastas-De Leon). In his memorandum dated September 24, 2007, Court Administrator Lock found ample basis to charge respondent judge with delay in rendering an order and for abuse of judicial discretion and authority The OCA stated that Criminal Case No. 06-179 was assigned to respondent judge on May 2, 2006, a fact which the latter did not dispute. More than a month later, or on June 19, 2006, respondent judge set accused Cuasons motion to determine whether or not a probable cause exists for the purpose of the issuance of a warrant of arrest and complainants motion to deny application for judicial determination of probable cause

and to cite accused in contempt of this Honorable Court on the ground of forum shopping for hearing on July 17, 2006. It must be stressed that accused Cuason and complainant filed their respective motions on February 14, 2006 and on March 22, 2006, or while the case was still pending in the sala of Judge Guerrero. After hearing the said motions on July 17, 2006, it took another forty-eight (48) days for respondent judge to issue the omnibus order dated September 4, 2006, dismissing the case for lack of probable cause. In his comment dated November 23, 2007, respondent judge insists that the charge filed against him should be dismissed.1avvphi1 This Court finds that respondent judges delay in the determination of probable cause clearly runs counter to the provisions of Section 6, Rule 112 of the Revised Rules of Criminal Procedure, which provides: Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to Section 7 of this Rules. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information. While respondent judge could not have ascertained the existence of probable cause for the issuance of an arrest warrant against Cuason within ten (10) days from the filing of the complaint or information Criminal Case No. 06-179 having been re-raffled to his sala only on May 2, 2006 prudence demanded that respondent judge should have determined the existence of probable cause within ten (10) days from July 17, 2006, the date he heard the respective arguments of the parties. This interpretation is in keeping with the provisions of Section 6, Rule 112. By allowing forty-eight (48) days to lapse before issuing the two-page omnibus order dated September 4, 2006, respondent judge should be held liable for undue delay in rendering an order, which is classified as a less serious charge under Section 9(1), Rule 140 of the Rules of Court, punishable by suspension from office without salary and other benefits for not less than one (1) month or more than three (3) months, or a fine of more thanP10,000.00 but not exceeding P20,000.00. Furthermore, the Court agrees with the OCA that the respondent judge is guilty of abuse of judicial discretion and authority.

The information in Criminal Case No. 06-179 clearly accuses Cuason of falsely pretending that he can return the investment of complainant by paying cash and two (2) condominium units when in fact these units do not exist or have not yet been constructed. The issue therefore boils down to whether or not the condominium units exist, and the incontrovertible proof of this are the condominium units themselves. The logical thing to do would have been to order the conduct of an ocular inspection. Instead of an ocular inspection, respondent relied on the certificate of registration, the development permit, the license to sell, the building permit, and the Condominium Certificate of Title on the basis of which the judge ordered the dismissal of the case. It may be that an ocular inspection was premature at the time the respondent dismissed the case because at that time the case was not yet set for the presentation of evidence of the parties. Nevertheless, it now appears that the pieces of evidence relied upon by the respondent do not fully support his conclusion. Section 4, Rule 128 of the Rules of Court provides that "evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence." "Relevancy is, therefore, determinable by the rules of logic and human experienceRelevant evidence is any class of evidence which has rational probative value to the issue in controversy."36 Logic and human experience teach us that the documents relied upon by respondent do not constitute the best evidence to prove the existence or non-existence of the condominium units. To repeat, the best evidence would have been adduced by an ocular inspection of the units themselves. Judge Lerma should also have exercised caution in determining the existence of probable cause. At the very least, he should have asked the prosecutor to present additional evidence, in accordance with Section 6, Rule 112 of the Revised Rules of Criminal Procedure or, in the alternative, to show cause why the case should not be dismissed instead of precipitately ordering the dismissal of the case. The circumstances required the exercise of caution considering that the case involved estafa in the considerable amount of P20 Million for which the complainant paid P129,970.00 in docket fees before the Office of the City Prosecutor and later P167,114.60 as docket fee for the filing of the Information before the RTC. For this particular violation, we find respondent judge guilty and impose upon him a fine of P21,000.00. As an unflattering footnote to these administrative offenses, the OCA, upon the authority of the Chief Justice, conducted a judicial audit from August 21-30, 2007 of the RTC, Branch 256, Muntinlupa. The initial result of the audit revealed that Judge Lerma failed to decide 30 civil cases and 11 criminal cases within the 90-day reglementary period. It also appears that 101 civil cases and 137 criminal cases remained unacted despite the lapse of a considerable period. Judge Lerma had previously been sanctioned by this Court. In a resolution dated September 13, 2003 in A.M. No. RTJ-031799, entitled Ma. Cristina Olondriz Pertierra v. Judge Alberto L. Lerma, this Court found him liable for conduct unbecoming a judge and imposed upon him the penalty of reprimand. In

that case, Judge Lerma was found having lunch with a lawyer who has a pending case in his sala. The totality of all these findings underscore the fact that respondent judges actions served to erode the peoples faith and confidence in the judiciary. He has been remiss in the fulfillment of the duty imposed on all members of the bench in order to avoid any impression of impropriety to protect the image and integrity of the judiciary. To reiterate, officers of the court have the duty to see to it that justice is dispensed evenly and fairly. Not only must they be honest and impartial, but they must also appear to be honest and impartial in the dispensation of justice. Judges should make sure that their acts are circumspect and do not arouse suspicion in the minds of the public. When they fail to do so, such acts cast doubt upon their integrity and ultimately on the judiciary in general.37"Courts will only succeed in their task and mission if the judges presiding over them are truly honorable men, competent and independent, honest and dedicated." 38 Respondent judge failed to live up to the judiciarys exacting standards, and this Court will not withhold penalty when called for to uphold the peoples faith in the Judiciary.39 WHEREFORE, premises considered, the Court RULES, as follows: 1) In A.M. No. RTJ-07-2076, Judge Alberto Lerma is found GUILTY of violating a Supreme Court directive, and we impose upon him a FINE in the total amount of FIFTEEN THOUSAND PESOS (P15,000.00); 2) In A.M. No. RTJ-07-2080, Judge Alberto Lerma is FINED in the total amount of FIFTEEN THOUSAND PESOS (P15,000.00) for violation of Supreme Court rules, directives, and circulars, and for making untruthful statements in his certificate of service; 3) In A.M. No. RTJ-07-2077, Judge Alberto Lerma is found GUILTY of gross misconduct and punished with the penalty of DISMISSAL from the service, with forfeiture of all benefits, except earned leave credits, with prejudice to reemployment in any government agency or instrumentality. 4) In A.M. No. RTJ-07-2078, we find Judge Alberto Lerma GUILTY of gross ignorance of the law, and impose upon him a FINE of FORTY THOUSAND PESOS (P40,000.00); and 5) In A.M. No. RTJ-07-2079, we find Judge Alberto Lerma GUILTY of grave abuse of authority and undue delay in rendering an order, and impose upon him a FINE of TWENTYONE THOUSAND PESOS (P21,000.00). This Decision is final and immediately executory. SO ORDERED.

G.R. No. 179487

November 15, 2010

ROMEO ILISAN y PIABOL, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION NACHURA, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the August 23, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 29937, which affirmed with modification the June 14, 2005 decision2 of the Regional Trial Court (RTC) of Quezon City, Branch 81, finding petitioner Romeo Ilisan guilty beyond reasonable doubt of homicide. The RTC and the CA similarly arrived at the following factual findings: On February 3, 2002, a baptismal celebration was held at the residence of Ricky Silva in Barangay Nagkaisang Nayon, Novaliches, Quezon City. Among those who attended were petitioner and one Joey Gaton (Gaton). They belonged to different groups of guests.3 While Gaton and petitioner were having a drinking spree with their respective groups, one of petitioners companions apparently got irked by the way Gaton looked at him. This prompted petitioner and his companions to maul Gaton. A melee then ensued; in the course of which, petitioner shot Gaton at the abdomen, causing the latters instantaneous death.4 The gun used by petitioner was a .45 caliber pistol. On February 7, 2002, an Information for murder was filed against petitioner with the RTC of Quezon City, Branch 81, viz.: That on or about 3rd day of February, 2002, in Quezon City, Philippines, the above-named accused, did then and there, willfully, unlawfully and feloniously with intent to kill, and with treachery and evident premeditation and with use of superior strength assault, attack and employ personal violence upon the person of one JOEY GATON Y GARALDE, by then and there shooting him with a gun hitting him on his trunk, thereby inflicting upon him serious and grave wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of JOEY GATON Y GARALDE. CONTRARY TO LAW.5 When arraigned on March 18, 2002, petitioner pleaded not guilty to the offense charged.6 Evidence for the prosecution consisted mainly of the testimonies of Gabriel Gaton, the victims brother, Marlon Dellamas, and Edgardo Dag-um, both neighbors of the victim, who all positively identified petitioner as the gunman. Gabriel Gaton was summoned to the place of the incident while his

brother was being mauled; Marlon Dellamas went to the scene of the incident to look for his brother Jojo; and Edgardo Dag-um was at the place where the mauling and shooting transpired. In his defense, petitioner and his witnesses, Jomarie Ilisan and Jaime Escasinas, petitioners brother and cousin, respectively, claimed that another guest, Chito Partisala, a jail guard in Bicutan, was the assailant. The defense also presented Engineer Leonard Jabonillo, Forensic Chemist of the Central Police District Crime Laboratory, who testified that petitioner tested negative for gunpowder residue when paraffin tests were conducted on him a day after the incident. In its June 14, 2005 decision, the RTC accorded more weight to the positive testimonies of the prosecution witnesses over the declarations of the defense. There being no adequate proof that treachery and evident premeditation qualified the killing of Gaton, the RTC convicted petitioner of homicide, viz.: IN VIEW OF THE FOREGOING, the Court finds accused ROMEO ILISAN y PIABOL guilty beyond reasonable doubt of the crime of Homicide punishable under Article 249 of the Revised Penal Code. Applying the provisions of the Indeterminate Sentence Law and there being no mitigating or aggravating circumstances, the accused is hereby sentenced to suffer imprisonment for a term ranging from eight years and one day of prision mayor as minimum to fourteen years and eight months of reclusion temporal as maximum, and to indemnify the heirs of the deceased in the amounts of P75,000.00 as actual damages, P50,000.00 for the death of the victim and P50,000.00 as moral damages. The period during which said accused was under detention should be deducted from the service of his sentence. Let a mittimus order be issued for service of sentence.7 On appeal to the CA, petitioner questioned the credibility of the prosecution witnesses who allegedly harbored ill motive against him because they were either related to the victim or to one of the participants in the commotion. Petitioner also argued that the negative results of the paraffin residue test conducted on him strongly indicate his innocence.81avvphi1 In a Decision dated August 23, 2007, the CA affirmed the RTCs finding of guilt, but modified the amount of actual damages awarded and the maximum period of the penalty imposed by adding one (1) more day thereto, viz.: WHEREFORE, the trial courts Decision dated June 14, 2005 is affirmed, subject to the modification of the maximum period of the indeterminate sentence to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal medium, and the reduction of the award of actual damages to P58,520.00.9 Hence, the present petition wherein petitioner reiterates the issues he raised before the CA. We deny the petition. The Court generally defers to the trial court's evaluation of the credibility of witness and their testimonies, for it is in a

better position to decide questions of credibility, having heard the witnesses themselves and observed their attitude and deportment during trial.10 In the absence of any clear showing that the trial court overlooked or misconstrued cogent facts and circumstances which would alter a conviction, we are doctrinally bound by the trial courts assessment of the credibility of witnesses.11 The application of this rule becomes even more stringent when such findings are sustained by the appellate court,12 as in the present case. We see no misappreciation of facts committed by the courts a quo, which were uniform in their reliance on the prosecutions version. Both were correct in concluding that the identity of petitioner and his actual shooting of Gaton were established beyond moral certainty through the testimonies of three (3) witnesses, namely: (i) Gabriel Gaton, who was summoned to the place of the incident while his brother Gaton was being mauled; (ii) Marlon Dellamas, who went to the scene of the incident to look for his brother; and (iii) Edgardo Dag-um, who was in the vicinity when the shooting transpired. Their ensuing testimonies are notable: Gabriel Gaton: Q: When Helen Dellamas went to your house and told you that your brother was being mauled, what did you do, if you did anything? A: We went to the place and we saw a person holding a gun. Q: You said that you went to the place, where was this place located? A: Near our house, sir. Q: Now, you said that you saw a man when you went there, what else did you see? A: I saw him pointing a gun at my brother Joey. Q: How far were you when you saw that man who was pointing a gun at your brother Joey? A: (Witness indicating a distance of 10 meters more or less.) Q: And how far was the man with a gun from your brother Joey? A: (Witness indicating a distance of 2 meters.) Q: What was the position of your brother Joey when the man was pointing his gun to your brother Joey? A: Sidewise, sir. Q: What happened after you saw the man pointing a gun at your brother?

A: I shouted: Dont (Huwag naman) but he ignored me and then the gun went off. Q: What happened after the gun went off? A: After firing the gun, he pointed the gun to the bystanders. Q: What happened to your brother? A: He fell down, sir.13 Marlon Dellamas: Q: Please tell this Honorable Court what [you were] doing [at] that time? A: I was looking for my brother Joey Dellamas. Q: If you can remember, were there many people on that alley? A: Yes sir. Q: And what was the [lighting] condition of that alley at that time? A: It was very bright at that time. Q: At that time and place, was there any unusual incident that transpired on that place? A: Yes maam, there was. They were arguing. Q: You said that they were arguing, tell this Honorable Court who was arguing, could you please be specific? A: The visitors of the owner of the house, maam. xxxx Q: What happened after they entered the gate which you said was opened? A: The person who was armed with a gun shot at Joey Gaton. Q: How far were you when this person shot Joey Gaton, how far were you to this person? A: I was very near, maam. I was about a meter only away from them. xxxx

Q: And what happened after this person who you just identified as Romeo Ilisan shot Joey Gaton, what happened? A: Joey Gaton fell down, maam.14 Edgardo Dag-um: Q: While you were enjoying yourself with your companions, do you recall of any unusual incident that happened? A: Yes, sir, we heard shouts. Q: Where did [those] shouts c[o]me from? A: From outside. Q: When you heard [the] shouts, what did you do? A: We went out the premises of the house of my sister. xxxx Q: And what did you see outside? A: There were persons quarrelling, sir. Q: Do you know that persons who were quarrelling [at] that time? xxxx A: I saw my brother-in-law Jojo Dellamas and Joey Gaton being mauled by some male persons. xxxx Q: And when you saw people attacking your brotherin-law and Joey Gaton, what else happened? A: When some of the neighbors were approaching the scene of the incident, those male persons who were mauling my brother-in-law entered the yard of the house of Jaime E[s]casinas. Q: Mr. Witness, you said a while ago that Joey Gaton was already dead, how did he die? A: He was shot, sir. Q: Who shot him? A: Romeo Ilisan, sir. xxxx

Q: You pointed to Romeo Ilisan as the person who shot Joey Gaton, how far were you when Romeo Ilisan shot Joey Gaton? A: About two (2) meters away sir. Q: What kind of firearm did this Romeo Ilisan use in shooting Joey Gaton? A: .45, sir.15 The fact that Gabriel Gaton is the victims brother does not impair his credibility as a witness. Relationship by itself does not give rise to a presumption of bias or ulterior motive, nor does it ipso facto diminish the credibility or tarnish the testimony of a witness. On the contrary, a witness relationship to a victim of a crime would even make his or her testimony more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the culprit. The natural interest of witnesses, who are relatives of the victim, in securing the conviction of the guilty would actually deter them from implicating persons other than the true culprits.16 There is likewise no indication that Marlon Dellamas and Edgardo Dag-um were improperly motivated when they testified against petitioner. As aptly observed by the Office of the Solicitor General in its Comment,17 aside from the prosecution witnesses relationship with the other participants in the fight, petitioner failed to show any other basis for the ill motive he imputes against them. As a rule, absent any evidence showing any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimonies are thus worthy of full faith and credit.18 Petitioners reliance on the negative results of the paraffin test conducted on him the day after the fateful event must fail. Our ruling in People v. Manalo,19 is apropos: [E]ven if he were subjected to a paraffin test and the same yields a negative finding, it cannot be definitely concluded that he had not fired a gun as it is possible for one to fire a gun and yet be negative for the presence of nitrates as when the hands are washed before the test. The Court has even recognized the great possibility that there will be no paraffin traces on the hand if, as in the instant case, the bullet was fired from a .45 Caliber pistol. Indeed, paraffin tests, in general, have been rendered inconclusive by this Court. Scientific experts concur in the view that the paraffin test has proved extremely unreliable. It can only establish the presence or absence of nitrates or nitrites on the hand; still, the test alone cannot determine whether the source of the nitrates or nitrites was the discharge of a firearm. The presence of nitrates should be taken only as an indication of a possibility or even of a probability but not of infallibility that a person has fired a gun.20 Conversely, the absence of gunpowder nitrates on petitioners hands, the day after the incident, does not conclusively establish that he did not fire a gun; neither are

the negative results yielded by the paraffin test an insurmountable proof of his innocence. The courts a quo also correctly rejected the version of the defense as a mere afterthought intended to exculpate petitioner, viz.: If it is true that they saw Chito Partisala sh[o]ot Joey, why they did not tell the policeman who arrived at the crime scene immediately that Partisala was the gunman. Why did Jomarie wait until somebody pointed to the accused as the gunman before he told them that it [was] Partisala who shot the victim.21 Thus, the positive, clear, and categorical testimonies of the three eyewitnesses to the crime deserve full merit in both probative weight and credibility over the negative results of the paraffin test conducted on petitioner and his witnesses anomalous claims. We now go to the penalty imposed. Homicide is punishable by reclusion temporal.22 There being no mitigating or aggravating circumstance proven in the case at bar, the penalty should be applied in its medium period of fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and four (4) months.23 Applying the Indeterminate Sentence Law, the maximum penalty will be selected from the above range, with the minimum penalty being selected from the range of the penalty one degree lower than reclusion temporal, which isprision mayor (six [6] years and one [1] day to twelve (12) years). Hence, the indeterminate sentence of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months, and one (1) day ofreclusion temporal, as maximum, imposed by the RTC, and affirmed with modification by the CA, is correct. The civil indemnity and moral damages awarded by the RTC and the CA were also in order and consistent with current jurisprudence. Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime.24 Under prevailing jurisprudence, the award of P50,000.00 to the heirs of the victim as civil indemnity is proper.25 Moral damages must also be awarded because these are mandatory in cases of homicide, without need of allegation and proof other than the death of the victim.26 The award of P50,000.00 as moral damages27 is correct. We must, however, modify the actual damages awarded by the CA. Actual damages pertain to the actual expenses incurred by the victims heirs in relation to his death, i.e., burial and funeral expenses. To justify an award therefor, it is necessary for a party to produce competent proof or the best evidence obtainable, such as receipts.28 In this case, the actual expenses incurred for the wake and burial of the victim were duly shown by receipts marked as Exhibits "K," "L," "M," and "M-1"29 in the aggregate amount of P88,520.00. But the CA

awarded only P58,520.00, which, after a perusal of the records, appears to have been caused by the non-inclusion of Exhibit "L," a receipt for P30,000.00 paid by the victims wife to La Funeraria Novaliches for the deceaseds autopsy and embalming treatment, and use of mortuary equipment for the interment. Having convincingly proved the nature of the expense in the amount of P30,000.00 in Exhibit "L," it is only right to increase the actual damages awarded to the victims heirs to P88,520.00. WHEREFORE, premises considered, the petition is hereby DENIED. The August 23, 2007 Decision of the Court of Appeals is AFFIRMED with modification that the award of actual damages is increased to P88,520.00. SO ORDERED.

G.R. No. 178830

July 14, 2008

ROLEX SUPLICO, Petitioner, vs. NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, represented by NEDA SECRETARY ROMULO L. NERI, and the NEDA-INVESTMENT COORDINATION COMMITTEE, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY LEANDRO MENDOZA, including the COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, headed by its Chairman, RAMON P. SALES, THE TELECOMMUNICATIONS OFFICE, BIDS AND AWARDS FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY (ICT), headed by DOTC ASSISTANT SECRETARY ELMER A. SONEJA as Chairman, and the TECHNICAL WORKING GROUP FOR ICT, AND DOTC ASSISTANT SECRETARY LORENZO FORMOSO, AND ALL OTHER OPERATING UNITS OF THE DOTC FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ZTE CORPORATION, AMSTERDAM HOLDINGS, INC., AND ALL PERSONS ACTING IN THEIR BEHALF, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179317 AMSTERDAM HOLDINGS, INC., and NATHANIEL SAUZ, Petitioners, vs. DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO MENDOZA, COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ASSISTANT SECRETARY LORENZO FORMOSO III, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179613 GALELEO P. ANGELES, VICENTE C. ANGELES, JOB FLORANTE L. CASTILLO, TRINI ANNE G. NIEVA, ROY ALLAN T. ARELLANO, CARLO MAGNO M. REONAL, ETHEL B. REGADIO, RAENAN B. MALIG, AND VINALYN M. POTOT, TOGETHER WITH LAWYERS AND ADVOCATES FOR ACCOUNTABILITY, TRANSPARENCY, INTEGRITY AND GOOD GOVERNANCE (LATIGO), Petitioners, vs. DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY LEANDRO MENDOZA, and ZHONG XING EQUIPMENT (ZTE) COMPANY, LTD., AND ANY AND ALL PERSONS ACTING ON THEIR BEHALF, Respondents. RESOLUTION REYES, R.T., J.: Under consideration is the Manifestation and Motion1 dated October 26, 2007 of the Office of the Solicitor General (OSG) which states:

The Office of the Solicitor General (OSG) respectfully avers that in an Indorsement dated October 24, 2007, the Legal Service of the Department of Transportation and Communications (DOTC) has informed it of the Philippine Governments decision not to continue with the ZTE National Broadband Network Project (see attachment2). That said, there is no more justiciable controversy for this Honorable Court to resolve. WHEREFORE, public respondents respectfully pray that the present petitions be DISMISSED. On November 13, 2007, the Court noted the OSGs manifestation and motion and required petitioners in G.R. Nos. 178830, 179317, and 179613 to comment. On December 6, 2007, Rolex Suplico, petitioner in G.R. No. 178830, filed his Consolidated Reply and Opposition,3opposing the aforequoted OSG Manifestation and Motion, arguing that: 66. Aside from the fact that the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao held 2 October 2007 were not attached to the 26 October 2007 Manifestation and Motion thus depriving petitioners of the opportunity to comment thereon a mere verbally requested 1st Indorsement is not sufficient basis for the conclusion that the ZTE-DOTC NBN deal has been permanently scrapped. 67. Suffice to state, said 1st Indorsement is glaringly self-serving, especially without the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao to support its allegations or other proof of the supposed decision to cancel the ZTE-DOTC NBN deal. Public respondents can certainly do better than that.4 Petitioner Suplico further argues that: 79. Assuming arguendo that some aspects of the present Petition have been rendered moot (which is vehemently denied), this Honorable Court, consistent with well-entrenched jurisprudence, may still take cognizance thereof.5 Petitioner Suplico cites this Courts rulings in Gonzales v. Chavez,6 Rufino v. Endriga,7 and Alunan III v. Mirasol8that despite their mootness, the Court nevertheless took cognizance of these cases and ruled on the merits due to the Courts symbolic function of educating the bench and the bar by formulating guiding and controlling principles, precepts, doctrines, and rules. On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Nathaniel Sauz, petitioners in G.R. No. 179317, also filed their comment expressing their sentiments, thus: 3. First of all, the present administration has never been known for candor. The present administration has a very nasty habit of not keeping its word. It says one thing, but does another.

4. This being the case, herein petitioners are unable to bring themselves to feel even a bit reassured that the government, in the event that the abovecaptioned cases are dismissed, will not backtrack, retransact, or even resurrect the now infamous NBNZTE transaction. This is especially relevant since what was attached to the OSGs Manifestation and Motion was a mere one (1) page written communication sent by the Department of Transportation and Communications (DOTC) to the OSG, allegedly relaying that the Philippine Government has decided not to continue with the NBN project "x x x due to several reasons and constraints." Petitioners AHI and Sauz further contend that because of the transcendental importance of the issues raised in the petition, which among others, included the Presidents use of the power to borrow, i.e., to enter into foreign loan agreements, this Court should take cognizance of this case despite its apparent mootness. On January 15, 2008, the Court required the OSG to file respondents reply to petitioners comments on its manifestation and motion. On April 18, 2008, the OSG filed respondents reply, reiterating their position that for a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice.9 Respondents also insist that there is no perfected contract in this case that would prejudice the government or public interest. Explaining the nature of the NBN Project as an executive agreement, respondents stress that it remained in the negotiation stage. The conditions precedent10 for the agreement to become effective have not yet been complied with. Respondents further oppose petitioners claim of the right to information, which they contend is not an absolute right. They contend that the matters raised concern executive policy, a political question which the judicial branch of government would generally hesitate to pass upon. On July 2, 2008, the OSG filed a Supplemental Manifestation and Motion. Appended to it is the Highlights from the Notes of Meeting between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao, held in XI Jiao Guesthouse, Shanghai, China, on October 2, 2007. In the Notes of Meeting, the Philippine Government conveyed its decision not to continue with the ZTE National Broadband Network Project due to several constraints. The same Notes likewise contained President Hu Jintaos expression of understanding of the Philippine Government decision. We resolve to grant the motion.

Firstly, the Court notes the triple petitions to be for certiorari, prohibition and mandamus, with application for the issuance of a Temporary Restraining Order (TRO) and/or Preliminary Injunction. The individual prayers in each of the three (3) consolidated petitions are: G.R. No. 178830 WHEREFORE, it is respectfully prayed of this Honorable Court: 1. Upon the filing of this Petition, pursuant to the second paragraph of Rule 58, Section 5 of the Rules of Court, issue forthwith an ex parte temporary restraining order enjoining respondents, their subordinates, agents, representatives and any and all persons acting on their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal; 2. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner or his undersigned counsel a certified true copy of the contract or agreement covering the NBN project as agreed upon with ZTE Corporation; 3. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2, Rule 56 of the revised Rules of Court; and, 4. Annul and set aside the award of the ZTE-DOTC Broadband Deal, and compel public respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract.11 (Emphasis supplied) G.R. No. 179317 WHEREFORE, petitioners Amsterdam Holdings, Inc., and Nathaniel Sauz respectfully pray as follows: A. upon the filing of this Petition for Mandamus and conditioned upon the posting of a bond in such amount as the Honorable Court may fix, a temporary restraining order and/or writ of preliminary injunction be issued directing the Department of Transportation and Communication, the Commission on Information and Communications Technology, all other government agencies and instrumentalities, their officers, employees, and/or other persons acting for and on their behalf to desist during the pendency of the instant Petition for Mandamus from entering into any other agreements and from commencing with any kind, sort, or specie of activity in connection with the National Broadband Network Project; B. the instant Petition for Mandamus be given due course; and,

C. after due consideration of all relevant issues, judgment be rendered directing respondents to allow herein petitioners access to all agreements entered into with the Government of China, the ZTE Corporation, and/or other entities, government instrumentalities, and/or individuals with regard to the National Broadband Network Project.12 (Emphasis supplied) G.R. No. 179613 WHEREFORE, it is respectfully prayed of this Honorable Court to: 1. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner or his undersigned counsel a certified true copy of the contract or agreement covering the NBN project as agreed upon with ZTE Corporation; 2. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2, Rule 56 of the Revised Rules of Court; 3. Annul and set aside the award of the contract for the national broadband network to respondent ZTE Corporation, upon the ground that said contract, as well as the procedures resorted to preparatory to the execution thereof, is contrary to the Constitution, to law and to public policy; 4. Compel public respondent to forthwith comply with pertinent provisions of law regarding procurement of government infrastructure projects, including public bidding for said contract to undertake the construction of the national broadband network.13 (Emphasis supplied) On September 11, 2007, the Court issued a TRO14 in G.R. No. 178830, enjoining the parties from "pursuing, entering into indebtedness, disbursing funds, and implementing the ZTEDOTC Broadband Deal and Project" as prayed for. Pertinent parts of the said Order read: WHEREAS, the Supreme Court, on 11 September 2007, adopted a resolution in the above-entitled case, to wit: "G.R. No. 178830 (Rolex Suplico vs. National Economic and Development Authority, represented by NEDA Secretary Romulo L. Neri, and the NEDA Investment Coordination Committee, Department of Transportation and Communications (DOTC), represented by DOTC Secretary Leandro Mendoza, including the Commission on Information and Communications Technology, headed by its Chairman, Ramon P. Sales, The Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), headed by DOTC Assistant Secretary Elmer A. Soneja as Chairman, and The Technical Working Group for ICT, and DOTC Assistant Secretary Lorenzo Formoso, and All Other Operating Units of the DOTC for Information and Communications Technology, and ZTE Corporation, Amsterdam Holdings, Inc., and ARESCOM, Inc.Acting on the

instant petition with prayer for temporary restraining order and/or writ of preliminary injunction, the Court Resolved, without giving due course to the petition, to xxxx (d) Issue a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, enjoining the (i) National Economic and Development Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation and Communications, Commission on Information and Communications Technology, (iv) Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal and Project as prayed for." NOW THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondents (i) National Economic and Development Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation and Communications, Commission on Information and Communications Technology, (iv) Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their behalf are hereby ENJOINED from "pursuing, entering into indebtedness, disbursing funds, and implementing the ZTEDOTC Broadband Deal and Project" as prayed for.15 (Emphasis supplied.) Petitioners in G.R. Nos. 178830 and 179613 pray that they be furnished certified true copies of the "contract or agreement covering the NBN project as agreed upon with ZTE Corporation." It appears that during one of the Senate hearings on the NBN project, copies of the supply contract16 were readily made available to petitioners.17Evidently, the said prayer has been complied with and is, thus, mooted. When President Gloria Macapagal-Arroyo, acting in her official capacity during the meeting held on October 2, 2007 in China, informed Chinas President Hu Jintao that the Philippine Government had decided not to continue with the ZTE-National Broadband Network (ZTE-NBN) Project due to several reasons and constraints, there is no doubt that all the other principal prayers in the three petitions (to annul, set aside, and enjoin the implementation of the ZTE-NBN Project) had also become moot. Contrary to petitioners contentions that these declarations made by officials belonging to the executive branch on the Philippine Governments decision not to continue with the ZTE-NBN Project are self-serving, hence, inadmissible, the

Court has no alternative but to take judicial notice of this official act of the President of the Philippines. Section 1, Rule 129 of the Rules of Court provides: SECTION 1. Judicial Notice, when mandatory. A court shall take judicial notice, without introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (Emphasis supplied) Under the rules, it is mandatory and the Court has no alternative but to take judicial notice of the official acts of the President of the Philippines, who heads the executive branch of our government. It is further provided in the above-quoted rule that the court shall take judicial notice of the foregoing facts without introduction of evidence. Since we consider the act of cancellation by President Macapagal-Arroyo of the proposed ZTE-NBN Project during the meeting of October 2, 2007 with the Chinese President in China as an official act of the executive department, the Court must take judicial notice of such official act without need of evidence. In David v. Macapagal-Arroyo,18 We took judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of Presidential Proclamation No. 1017 and General Order No. 5. In Estrada v. Desierto,19 the Court also resorted to judicial notice in resolving the factual ingredient of the petition. Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty of the executive officials20 of informing this Court of the governments decision not to continue with the ZTE-NBN Project is also presumed to have been regularly performed, absent proof to the contrary. Other than petitioner AHIs unsavory insinuation in its comment, the Court finds no factual or legal basis to disregard this disputable presumption in the present instance. Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the judiciarys role of strengthening political stability indispensable to progress and national development. Pontificating on issues which no longer legitimately constitute an actual case or controversy will do more harm than good to the nation as a whole. Wise exercise of judicial discretion militates against resolving the academic issues, as petitioners want this Court to do. This is especially true where, as will be further discussed, the legal issues raised cannot be resolved without previously establishing the factual basis or antecedents. Judicial power presupposes actual controversies, the very antithesis of mootness. In the absence of actual justiciable controversies or disputes, the Court generally opts to refrain from deciding moot issues. Where there is no more live

subject of controversy, the Court ceases to have a reason to render any ruling or make any pronouncement. Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado. In Republic Telecommunications Holdings, Inc. v. Santiago,21 the lone issue tackled by the Court of Appeals (CA) was whether the Securities Investigation and Clearing Department (SICD) and Securities and Exchange Commission (SEC) en banc committed reversible error in issuing and upholding, respectively, the writ of preliminary injunction. The writ enjoined the execution of the questioned agreements between Qualcomm, Inc. and Republic Telecommunications Holdings, Inc. (RETELCOM). The implementation of the agreements was restrained through the assailed orders of the SICD and the SEC en banc which, however, were nullified by the CA decision. Thus, RETELCOM elevated the matter to this Court praying for the reinstatement of the writ of preliminary injunction of the SICD and the SEC en banc. However, before the matter was finally resolved, Qualcomm, Inc. withdrew from the negotiating table. Its withdrawal had thwarted the execution and enforcement of the contracts. Thus, the resolution of whether the implementation of said agreements should be enjoined became no longer necessary. Equally applicable to the present case is the Court ruling in the above-cited Republic Telecommunications. There We held, thus: Indeed, the instant petition, insofar as it assails the Court of Appeals Decision nullifying the orders of the SEC en banc and the SICD, has been rendered moot and academic. To rule, one way or the other, on the correctness of the questioned orders of the SEC en banc and the SICD will be indulging in a theoretical exercise that has no practical worth in view of the supervening event. The rule is well-settled that for a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. Where the issue has become moot and academic, there is no justiciable controversy, and an adjudication thereon would be of no practical use or value as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. In the ultimate analysis, petitioners are seeking the reinstatement of the writ of injunction to prevent the concerned parties from pushing through with transactions with Qualcomm, Inc. Given that Qualcomm, Inc. is no longer interested in pursuing the contracts, there is no actual substantial relief to which petitioners would be entitled and which would be negated by the dismissal of the petition. The Court likewise finds it unnecessary to rule whether the assailed Court of Appeals Decision had the effect of overruling the Courts Resolution dated 29 January 1999, which set aside the TRO issued by the appellate court.

A ruling on the matter practically partakes of a mere advisory opinion, which falls beyond the realm of judicial review. The exercise of the power of judicial review is limited to actual cases and controversies. Courts have no authority to pass upon issues through advisory opinions or to resolve hypothetical or feigned problems. While there were occasions when the Court passed upon issues although supervening events had rendered those petitions moot and academic, the instant case does not fall under the exceptional cases. In those cases, the Court was persuaded to resolve moot and academic issues to formulate guiding and controlling constitutional principles, precepts, doctrines or rules for future guidance of both bench and bar. In the case at bar, the resolution of whether a writ of preliminary injunction may be issued to prevent the implementation of the assailed contracts calls for an appraisal of factual considerations which are peculiar only to the transactions and parties involved in this controversy. Except for the determination of whether petitioners are entitled to a writ of preliminary injunction which is now moot, the issues raised in this petition do not call for a clarification of any constitutional principle or the interpretation of any statutory provision.22 Secondly, even assuming that the Court will choose to disregard the foregoing considerations and brush aside mootness, the Court cannot completely rule on the merits of the case because the resolution of the three petitions involves settling factual issues which definitely requires reception of evidence. There is not an iota of doubt that this may not be done by this Court in the first instance because, as has been stated often enough, this Court is not a trier of facts. Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng paglilitis na hindi gawain ng Hukumang ito. Respondent ZTE, in its Comment in G.R. No. 178830,23 correctly pointed out that since petitioner Suplico filed his petition directly with this Court, without prior factual findings made by any lower court, a determination of pertinent and relevant facts is needed. ZTE enumerated some of these factual issues, to wit: (1) Whether an executive agreement has been reached between the Philippine and Chinese governments over the NBN Project; (2) Whether the ZTE Supply Contract was entered into by the Republic of the Philippines, through the DOTC, and ZTE International pursuant to, and as an integral part of, the executive agreement; (3) Whether a loan agreement for the NBN Project has actually been executed; (4) Whether the Philippine government required that the NBN Project be completed under a BuildOperate-and-Transfer Scheme;

(5) Whether the AHI proposal complied with the requirements for an unsolicited proposal under the BOT Law; (6) Whether the Philippine government has actually earmarked public finds for disbursement under the ZTE Supply Contract; and (7) Whether the coverage of the NBN Project to be supplied under the ZTE Supply Contract is more extensive than that under the AHI proposal or such other proposal submitted therefor.24 Definitely, some very specific reliefs prayed for in both G.R. Nos. 178830 and 179613 require prior determination of facts before pertinent legal issues could be resolved and specific reliefs granted. In G.R. No. 178830, petitioner seeks to annul and set aside the award of the ZTE-DOTC Broadband Deal and compel public respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract. In G.R. No. 179613, petitioners also pray that the Court annul and set aside the award of the contract for the national broadband network to respondent ZTE Corporation, upon the ground that said contract, as well as the procedures resorted to preparatory to the execution thereof, is contrary to the Constitution, to law and to public policy. They also ask the Court to compel public respondent to forthwith comply with pertinent provisions of law regarding procurement of government infrastructure projects, including public bidding for said contract to undertake the construction of the national broadband network. It is simply impossible for this Court "to annul and set aside the award of the ZTE-DOTC Broadband Deal" without any evidence to support a prior factual finding pointing to any violation of law that could lead to such annulment order. For sure, the Supreme Court is not the proper venue for this factual matter to be threshed out. Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court order "public respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract."25 It would be too presumptuous on the part of the Court to summarily compel public respondents to comply with pertinent provisions of law regarding procurement of government infrastructure projects without any factual basis or prior determination of very particular violations committed by specific government officials of the executive branch. For the Court to do so would amount to a breach of the norms of comity among co-equal branches of government. A perceived error cannot be corrected by committing another error. Without proper evidence, the Court cannot just presume that the executive did not comply with procurement laws. Should the Court allow itself to fall into this trap, it would plainly commit grave error itself.

Magiging kapangahasan sa Hukumang ito na pilitin ang mga pinipetisyon na tumalima sa batas sa pangongontrata ng pamahalaan kung wala pang pagtitiyak o angkop na ebidensiya ng nagawang paglabag dito. Let it be clarified that the Senate investigation in aid of legislation cannot be the basis of Our decision which requires a judicial finding of facts. Justice Antonio T. Carpio takes the view that the National Broadband Network Project should be declared null and void. The foregoing threefold reasons would suffice to address the concern of Our esteemed colleague. The Court is, therefore, constrained to dismiss the petitions and deny them due course because of mootness and because their resolution requires reception of evidence which cannot be done in an original petition brought before the Supreme Court. WHEREFORE, the petitions are DISMISSED. The Temporary Restraining Order issued on September 11, 2007 is DISSOLVED. SO ORDERED.