United States Supreme Court James N. Vaughan submitted on brief for Vaughan, appellee.
mitted on brief for Vaughan, appellee. provisions, and in March, 1947, it petitioned the Surrogate's
MULLANE v. CENTRAL HANOVER TR. CO., (1950)
No. 378
Argued: February 8, 1950 Decided: April 24, 1950
A trust company in New York which had exclusive
management and control of a common trust fund established
by it under 100-c of the New York Banking Law petitioned
under that section for a judicial settlement of accounts which
would be binding and conclusive as to any matter set forth
therein upon everyone having any interest in the common
fund or in any participating trust. In this common fund the
trust company had invested assets of numerous small trusts
of which it was trustee and of which some of the
beneficiaries were residents and some nonresidents of the
State. The only notice of this petition given beneficiaries was
by publication in a local newspaper pursuant to 100-c (12).
Held:
1. Whether such a proceeding for settlement of accounts be
technically in personam, in rem, or quasi in rem, the interest
of each state in providing means to close trusts that exist by
the grace of its laws and are administered under the
supervision of its courts is such as to establish beyond doubt
the right of its courts to determine the interests of all
claimants, resident or nonresident, provided its procedure
accords full opportunity to appear and be heard. Pp. 311-
313.
2. The statutory notice by publication is sufficient as to any
beneficiaries whose interests or addresses are unknown to
the trustee, since there are no other means of giving them
notice which are both practicable and more effective. Pp.
313-318.
3. Such notice by publication is not sufficient under the
Fourteenth Amendment as a basis for adjudication depriving
of substantial property rights known persons whose
whereabouts are also known, since it is not impracticable to
make serious efforts to notify them at least by ordinary mail
to their addresses on record with the trust company. Pp.
318-320.
299 N. Y. 697, 87 N. E. 2d 73, reversed.
Overruling objections to the statutory notice to beneficiaries
by publication authorized by 100-c of the New York Banking
Law, a New York Surrogate's Court entered a final decree
accepting an accounting of the trustee of [339 U.S. 306, 307]
a common trust fund established pursuant to that section. 75
N. Y. S. 2d 397. This decree was affirmed by the Appellate
Division of the Supreme Court of New York (see 274 App.
Div. 772, 80 N. Y. S. 2d 127) and the Court of Appeals of
New York (299 N. Y. 697, 87 N. E. 2d 73). On appeal to this
Court, reversed, p. 320.
Kenneth J. Mullane argued the cause and filed a brief for
appellant.
Albert B. Maginnes argued the cause for the Central
Hanover Bank & Trust Co., appellee. With him on the brief
was J. Quincy Hunsicker, 3rd.
Peter Keber and C. Alexander Capron filed a brief for the
New York State Bankers Association, as amicus curiae,
urging affirmance.
MR. JUSTICE JACKSON delivered the opinion of the Court.
This controversy questions the constitutional sufficiency of
notice to notice to beneficiaries on judicial settlement of
accounts by the trustee of a common trust fund established
under the New York Banking Law. The New York Court of
Appeals considered and overruled objections that the
statutory notice contravenes requirements of the Fourteenth
Amendment and that by allowance of the account
beneficiaries were deprived of property without due process
of law. 299 N. Y. 697, 87 N. E. 2d 73. The case is here on
appeal under 28 U.S.C. 1257.
Common trust fund legislation is addressed to a problem
appropriate for state action. Mounting overheads have made
administration of small trusts undesirable to corporate
trustees. In order that donors and testators of moderately
sized trusts may not be denied the service of corporate
fiduciaries, the District of Columbia and some [339 U.S. 306,
308] thirty states other than New York have permitted
pooling small trust estates into one fund for investment
administration. * The income, capital gains, losses and
expenses of the collective trust are shared by the constituent
trusts in proportion to their contribution. By this plan,
diversification of risk and economy of management can be
extended to those whose capital standing alone would not
obtain such advantage.
Statutory authorization for the establishment of such
common trust funds is provided in the New York Banking
Law, 100-c (c. 687, L. 1937, as amended by c. 602, L. 1943
and c. 158, L. 1944). Under this Act a trust company may,
with approval of the State Banking Board, establish a
common fund and, within prescribed limits, [339 U.S. 306,
309] invest therein the assets of an unlimited number of
estates, trusts or other funds of which it is trustee. Each
participating trust shares ratably in the common fund, but
exclusive management and control is in the trust company
as trustee, and neither a fiduciary nor any beneficiary of a
participating trust is deemed to have ownership in any
particular asset or investment of this common fund. The trust
company must keep fund assets separate from its own, and
in its fiduciary capacity may not deal with itself or any
affiliate. Provisions are made for accounting twelve to fifteen
months after the establishment of a fund and triennially
thereafter. The decree in each such judicial settlement of
accounts is made binding and conclusive as to any matter
set forth in the account upon everyone having any interest in
the common fund or in any participating estate, trust or fund.
In January, 1946, Central Hanover Bank and Trust Company
established a common trust fund in accordance with these
Court for settlement of its first account as common trustee.
During the accounting period a total of 113 trusts,
approximately half inter vivos and half testamentary,
participated in the common trust fund, the gross capital of
which was nearly three million dollars. The record does not
show the number or residence of the beneficiaries, but they
were many and it is clear that some of them were not
residents of the State of New York.
The only notice given beneficiaries of this specific application
was by publication in a local newspaper in strict compliance
with the minimum requirements of N. Y. Banking Law 100-c
(12): "After filing such petition [for judicial settlement of its
account] the petitioner shall cause to be issued by the court
in which the petition is filed and shall publish not less than
once in each week [339 U.S. 306, 310] for four successive
weeks in a newspaper to be designated by the court a notice
or citation addressed generally without naming them to all
parties interested in such common trust fund and in such
estates, trusts or funds mentioned in the petition, all of which
may be described in the notice or citation only in the manner
set forth in said petition and without setting forth the
residence of any such decedent or donor of any such estate,
trust or fund." Thus the only notice required, and the only
one given, was by newspaper publication setting forth
merely the name and address of the trust company, the
name and the date of establishment of the common trust
fund, and a list of all participating estates, trusts or funds.
At the time the first investment in the common fund was
made on behalf of each participating estate, however, the
trust company, pursuant to the requirements of 100-c (9),
had notified by mail each person of full age and sound mind
whose name and address were then known to it and who
was "entitled to share in the income therefrom . . . [or] . . .
who would be entitled to share in the principal if the event
upon which such estate, trust or fund will become
distributable should have occurred at the time of sending
such notice." Included in the notice was a copy of those
provisions of the Act relating to the sending of the notice
itself and to the judicial settlement of common trust fund
accounts.
Upon the filing of the petition for the settlement of accounts,
appellant was, by order of the court pursuant to 100-c (12),
appointed special guardian and attorney for all persons
known or unknown not otherwise appearing who had or
might thereafter have any interest in the income of the
common trust fund; and appellee Vaughan was appointed to
represent those similarly interested in the principal. There
were no other appearances on behalf of any one interested
in either interest or principal. [339 U.S. 306, 311]
Appellant appeared specially, objecting that notice and the
statutory provisions for notice to beneficiaries were
inadequate to afford due process under the Fourteenth
Amendment, and therefore that the court was without
jurisdiction to render a final and binding decree. Appellant's
objections were entertained and overruled, the Surrogate
holding that the notice required and given was sufficient. 75
N. Y. S. 2d 397. A final decree accepting the accounts has
been entered, affirmed by the Appellate Division of the
Supreme Court, 275 App. Div. 769, 88 N. Y. S. 2d 907, and
by the Court of Appeals of the State of New York. 299 N. Y.
697, 87 N. E. 2d 73.
The effect of this decree, as held below, is to settle "all
questions respecting the management of the common fund."
We understand that every right which beneficiaries would
otherwise have against the trust company, either as trustee
of the common fund or as trustee of any individual trust, for
improper management of the common trust fund during the
period covered by the accounting is sealed and wholly
terminated by the decree. See Matter of Hoaglund, 194
Misc. 803, 811-812, 74 N. Y. S. 2d 156, 164, aff'd 272 App.
Div. 1040, 74 N. Y. S. 2d 911, aff'd 297 N. Y. 920, 79 N. E. 2d
746; Matter of Bank of New York, 189 Misc. 459, 470, 67 N.
Y. S. 2d 444, 453; Matter of Security Trust Co. of Rochester,
id. 748, 760, 70 N. Y. S. 2d 260, 271; Matter of Continental
Bank & Trust Co., id. 795, 797, 67 N. Y. S. 2d 806, 807-808.
We are met at the outset with a challenge to the power of the
State - the right of its courts to adjudicate at all as against
those beneficiaries who reside without the State of New
York. It is contended that the proceeding is one in personam
in that the decree affects neither title to nor possession of
any res, but adjudges only personal rights of the
beneficiaries to surcharge their trustee for negligence or
breach of trust. Accordingly, it is said, under the strict
doctrine of Pennoyer v. Neff, 95 U.S. 714 , the Surrogate
[339 U.S. 306, 312] is without jurisdiction as to
nonresidents upon whom personal service of process was
not made.
Distinctions between actions in rem and those in personam
are ancient and originally expressed in procedural terms
what seems really to have been a distinction in the
substantive law of property under a system quite unlike our
own. Buckland and McNair, Roman Law and Common Law,
66; Burdick, Principles of Roman Law and Their Relation to
Modern Law, 298. The legal recognition and rise in economic
importance of incorporeal or intangible forms of property
have upset the ancient simplicity of property law and the
clarity of its distinctions, while new forms of proceedings
have confused the old procedural classification. American
courts have sometimes classed certain actions as in rem
because personal service of process was not required, and
at other times have held personal service of process not
required because the action was in rem. See cases collected
in Freeman on Judgments, 1517 et seq. (5th ed.).
Judicial proceedings to settle fiduciary accounts have been
sometimes termed in rem, or more indefinitely quasi in rem,
or more vaguely still, "in the nature of a proceeding in rem."
It is not readily apparent how the courts of New York did or
would classify the present proceeding, which has some
characteristics and is wanting in some features of
proceedings both in rem and in personam. But in any event
we think that the requirements of the Fourteenth Amendment
to the Federal Constitution do not depend upon a
classification for which the standards are so elusive and
confused generally and which, being primarily for state
courts to define, may and do vary from state to state.
Without disparaging the usefulness of distinctions between
actions in rem and those in personam in many branches of
law, or on other issues, or the reasoning which underlies
them, we do not rest the power of the State to resort to
constructive service in this proceeding [339 U.S. 306, 313]
upon how its courts or this Court may regard this historic
antithesis. It is sufficient to observe that, whatever the
technical definition of its chosen procedure, the interest of
each state in providing means to close trusts that exist by
the grace of its laws and are administered under the
supervision of its courts is so insistent and rooted in custom
as to establish beyond doubt the right of its courts to
determine the interests of all claimants, resident or
nonresident, provided its procedure accords full opportunity
to appear and be heard.
Quite different from the question of a state's power to
discharge trustees is that of the opportunity it must give
beneficiaries to contest. Many controversies have raged
about the cryptic and abstract words of the Due Process
Clause but there can be no doubt that at a minimum they
require that deprivation of life, liberty or property by
adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case.
In two ways this proceeding does or may deprive
beneficiaries of property. It may cut off their rights to have
the trustee answer for negligent or illegal impairments of
their interests. Also, their interests are presumably subject to
diminution in the proceeding by allowance of fees and
expenses to one who, in their names but without their
knowledge, may conduct a fruitless or uncompensatory
contest. Certainly the proceeding is one in which they may
be deprived of property rights and hence notice and hearing
must measure up to the standards of due process.
Personal service of written notice within the jurisdiction is the
classic form of notice always adequate in any type of
proceeding. But the vital interest of the State in bringing any
issues as to its fiduciaries to a final settlement can be served
only if interests or claims of individuals who are outside of
the State can somehow be determined. A construction of the
Due Process Clause which [339 U.S. 306, 314] would place
impossible or impractical obstacles in the way could not be
justified.
Against this interest of the State we must balance the
individual interest sought to be protected by the Fourteenth
Amendment. This is defined by our holding that "The
fundamental requisite of due process of law is the
opportunity to be heard." Grannis v. Ordean, 234 U.S. 385,
394 . This right to be heard has little reality or worth unless
one is informed that the matter is pending and can choose
for himself whether to appear or default, acquiesce or
contest.
The Court has not committed itself to any formula achieving
a balance between these interests in a particular proceeding
or determining when constructive notice may be utilized or
what test it must meet. Personal service has not in all
circumstances been regarded as indispensable to the
process due to residents, and it has more often been held
unnecessary as to nonresidents. We disturb none of the
established rules on these subjects. No decision constitutes
a controlling or even a very illuminating precedent for the
case before us. But a few general principles stand out in the
books.
An elementary and fundamental requirement of due process
in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.
Milliken v. Meyer, 311 U.S. 457 ; Grannis v. Ordean, 234
U.S. 385 ; Priest v. Las Vegas, 232 U.S. 604 ; Roller v. Holly,
176 U.S. 398 . The notice must be of such nature as
reasonably to convey the required information, Grannis v.
Ordean, supra, and it must afford a reasonable time for
those interested to make their appearance, Roller v. Holly,
supra, and cf. Goodrich v. Ferris, 214 U.S. 71 . But if with
due regard for the practicalities and peculiarities of the case
these conditions [339 U.S. 306, 315] are reasonably met,
the constitutional requirements are satisfied. "The criterion is
not the possibility of conceivable injury but the just and
reasonable character of the requirements, having reference
to the subject with which the statute deals." American Land
Co. v. Zeiss, 219 U.S. 47, 67 ; and see Blinn v. Nelson, 222
U.S. 1, 7 .
But when notice is a person's due, process which is a mere
gesture is not due process. The means employed must be
such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it. The
reasonableness and hence the constitutional validity of any
chosen method may be defended on the ground that it is in
itself reasonably certain to inform those affected, compare
Hess v. Pawloski, 274 U.S. 352 , with Wuchter v. Pizzutti,
276 U.S. 13 , or, where conditions do not reasonably permit
such notice, that the form chosen is not substantially less
likely to bring home notice than other of the feasible and
customary substitutes.
It would be idle to pretend that publication alone, as
prescribed here, is a reliable means of acquainting
interested parties of the fact that their rights are before the
courts. It is not an accident that the greater number of cases
reaching this Court on the question of adequacy of notice
have been concerned with actions founded on process
constructively served through local newspapers. Chance
alone brings to the attention of even a local resident an
advertisement in small type inserted in the back pages of a
newspaper, and if he makes his home outside the area of
the newspaper's normal circulation the odds that the
information will never reach him are large indeed. The
chance of actual notice is further reduced when, as here, the
notice required does not even name those whose attention it
is supposed to attract, and does not inform acquaintances
who might call it to attention. In weighing its sufficiency on
the basis of equivalence with actual notice, we are unable to
regard this as more than a feint. [339 U.S. 306, 316]
Nor is publication here reinforced by steps likely to attract
the parties' attention to the proceeding. It is true that
publication traditionally has been acceptable as notification
supplemental to other action which in itself may reasonably
be expected to convey a warning. The ways of an owner with
tangible property are such that he usually arranges means to
learn of any direct attack upon his possessory or proprietary
rights. Hence, libel of a ship, attachment of a chattel or entry
upon real estate in the name of law may reasonably be
expected to come promptly to the owner's attention. When
the state within which the owner has located such property
seizes it for some reason, publication or posting affords an
additional measure of notification. A state may indulge the
assumption that one who has left tangible property in the
state either has abandoned it, in which case proceedings
against it deprive him of nothing, cf. Anderson National Bank
v. Luckett, 321 U.S. 233 ; Security Savings Bank v.
California, 263 U.S. 282 , or that he has left some caretaker
under a duty to let him know that it is being jeopardized.
Ballard v. Hunter, 204 U.S. 241 ; Huling v. Kaw Valley R. Co.,
130 U.S. 559 . As phrased long ago by Chief Justice
Marshall in The Mary, 9 Cranch 126, 144, "It is the part of
common prudence for all those who have any interest in [a
thing], to guard that interest by persons who are in a
situation to protect it."
In the case before us there is, of course, no abandonment.
On the other hand these beneficiaries do have a resident
fiduciary as caretaker of their interest in this property. But it is
their caretaker who in the accounting becomes their
adversary. Their trustee is released from giving notice of
jeopardy, and no one else is expected to do so. Not even the
special guardian is required or apparently expected to
communicate with his ward and client, and, of course, if such
a duty were merely transferred [339 U.S. 306, 317] from the
trustee to the guardian, economy would not be served and
more likely the cost would be increased.
This Court has not hesitated to approve of resort to
publication as a customary substitute in another class of
cases where it is not reasonably possible or practicable to
give more adequate warning. Thus it has been recognized
that, in the case of persons missing or unknown,
employment of an indirect and even a probably futile means
of notification is all that the situation permits and creates no
constitutional bar to a final decree foreclosing their rights.
Cunnius v. Reading School District, 198 U.S. 458 ; Blinn v.
Nelson, 222 U.S. 1 ; and see Jacob v. Roberts, 223 U.S. 261
. with or apart from their remittances word might come to them
Those beneficiaries represented by appellant whose
interests or whereabouts could not with due diligence be
ascertained come clearly within this category. As to them the
statutory notice is sufficient. However great the odds that
publication will never reach the eyes of such unknown
parties, it is not in the typical case much more likely to fail
than any of the choices open to legislators endeavoring to
prescribe the best notice practicable.
Nor do we consider it unreasonable for the State to dispense
with more certain notice to those beneficiaries whose
interests are either conjectural or future or, although they
could be discovered upon investigation, do not in due course
of business come to knowledge of the common trustee.
Whatever searches might be required in another situation
under ordinary standards of diligence, in view of the
character of the proceedings and the nature of the interests
here involved we think them unnecessary. We recognize the
practical difficulties and costs that would be attendant on
frequent investigations into the status of great numbers of
beneficiaries, many of whose interests in the common fund
are so remote as to be ephemeral; and we have no doubt
that such impracticable and extended searches are not
required in the [339 U.S. 306, 318] name of due process.
The expense of keeping informed from day to day of
substitutions among even current income beneficiaries and
presumptive remaindermen, to say nothing of the far greater
number of contingent beneficiaries, would impose a severe
burden on the plan, and would likely dissipate its
advantages. These are practical matters in which we should
be reluctant to disturb the judgment of the state authorities.
Accordingly we overrule appellant's constitutional objections
to published notice insofar as they are urged on behalf of
any beneficiaries whose interests or addresses are unknown
to the trustee.
As to known present beneficiaries of known place of
residence, however, notice by publication stands on a
different footing. Exceptions in the name of necessity do not
sweep away the rule that within the limits of practicability
notice must be such as is reasonably calculated to reach
interested parties. Where the names and postoffice
addresses of those affected by a proceeding are at hand, the
reasons disappear for resort to means less likely than the
mails to apprise them of its pendency.
The trustee has on its books the names and addresses of
the income beneficiaries represented by appellant, and we
find no tenable ground for dispensing with a serious effort to
inform them personally of the accounting, at least by
ordinary mail to the record addresses. Cf. Wuchter v.
Pizzutti, supra. Certainly sending them a copy of the statute
months and perhaps years in advance does not answer this
purpose. The trustee periodically remits their income to
them, and we think that they might reasonably expect that
personally that steps were being taken affecting their
interests.
We need not weigh contentions that a requirement of
personal service of citation on even the large number of
known resident or nonresident beneficiaries would, by [339
U.S. 306, 319] reasons of delay if not of expense, seriously
interfere with the proper administration of the fund. Of course
personal service even without the jurisdiction of the issuing
authority serves the end of actual and personal notice,
whatever power of compulsion it might lack. However, no
such service is required under the circumstances. This type
of trust presupposes a large number of small interests. The
individual interest does not stand alone but is identical with
that of a class. The rights of each in the integrity of the fund
and the fidelity of the trustee are shared by many other
beneficiaries. Therefore notice reasonably certain to reach
most of those interested in objecting is likely to safeguard
the interests of all, since any objection sustained would inure
to the benefit of all. We think that under such circumstances
reasonable risks that notice might not actually reach every
beneficiary are justifiable. "Now and then an extraordinary
case may turn up, but constitutional law like other mortal
contrivances has to take some chances, and in the great
majority of instances no doubt justice will be done." Blinn v.
Nelson, supra, 7.
The statutory notice to known beneficiaries is inadequate,
not because in fact it fails to reach everyone, but because
under the circumstances it is not reasonably calculated to
reach those who could easily be informed by other means at
hand. However it may have been in former times, the mails
today are recognized as an efficient and inexpensive means
of communication. Moreover, the fact that the trust company
has been able to give mailed notice to known beneficiaries at
the time the common trust fund was established is
persuasive that postal notification at the time of accounting
would not seriously burden the plan.
In some situations the law requires greater precautions in its
proceedings than the business world accepts for its own
purposes. In few, if any, will it be satisfied with [339 U.S. 306,
320] less. Certainly it is instructive, in determining the
reasonableness of the impersonal broadcast notification
here used, to ask whether it would satisfy a prudent man of
business, counting his pennies but finding it in his interest to
convey information to many persons whose names and
addresses are in his files. We are not satisfied that it would.
Publication may theoretically be available for all the world to
see, but it is too much in our day to suppose that each or
any individual beneficiary does or could examine all that is
published to see if something may be tucked away in it that
affects his property interests. We have before indicated in
reference to notice by publication that, "Great caution should
be used not to let fiction deny the fair play that can be
secured only by a pretty close adhesion to fact." McDonald v.
Mabee, 243 U.S. 90, 91 .
We hold that the notice of judicial settlement of accounts
required by the New York Banking Law 100-c (12) is
incompatible with the requirements of the Fourteenth
Amendment as a basis for adjudication depriving known
persons whose whereabouts are also known of substantial
property rights. Accordingly the judgment is reversed and the
cause remanded for further proceedings not inconsistent
with this opinion.
Reversed.
3. Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127838 January 21, 1999
CIVIL SERVICE COMMISSION, petitioner,
vs.
JOSE J. LUCAS, respondent.
PARDO, J.:
The petition for review on certiorari before the Court assails
the decision of the Court of Appeals 1 which set aside the
resolution of the Civil Service Commission 2 and reinstated
that of the Board of Personnel Inquiry (BOPI for brevity),
Office of the Secretary, Department of Agriculture, 3
suspending respondent for one month, for simple
misconduct.
To provide a factual backdrop of the case, a recital of the
facts is necessary.
On May 26, 1992, Raquel P. Linatok, an assistant
information officer at the Agricultural Information Division,
Department of Agriculture (DA for brevity), filed with the
office of the Secretary, DA, an affidavit-complaint against
respondent Jose J. Lucas, a photographer of the same
agency, for misconduct.
Raquel described the incident in the following manner:
While standing before a mirror, near the office door of Jose
J. Lucas, Raquel noticed a chair at her right side which Mr.
Jose Lucas, at that very instant used to sit upon. Thereafter,
Mr. Lucas bent to reach for his shoe. At that moment she felt
Mr. Lucas' hand touching her thigh and running down his
palm up to her ankle. She was shocked and suddenly faced
Mr. Lucas and admonished him not to do it again or she will
kick him. But Lucas touched her again and so she hit Mr.
Lucas. Suddenly Mr. Lucas shouted at her saying "lumabas
ka na at huwag na huwag ka nang papasok dito kahit kailan"
A verbal exchange then ensued and respondent Lucas
grabbed Raquel by the arm and shoved her towards the
door causing her to stumble, her both hands protected her
face from smashing upon the door.
Mr. Lucas, bent on literally throwing the affiant out of the
office, grabbed her the second time while she attempted to
regain her posture after being pushed the first time. . . . while
doing all this, Mr. Lucas shouted at the affiant, saying,
"labas, huwag ka nang papasok dito kahit kailan". 4
On June 8, 1992, the Board of Personnel Inquiry, DA, issued
a summons requiring respondent to answer the complaint,
not to file a motion to dismiss, within five (5) days from
receipt. On June 17, 1992, respondent Lucas submitted a
letter to Jose P. Nitullano, assistant head, BOPI, denying the
charges. According to Lucas, he did not touch the thigh of
complainant Linatok, that what transpired was that he
accidentally brushed Linatok's leg when he reached for his
shoes and that the same was merely accidental and he did
not intend nor was there malice when his hand got in contact
with Linatok's leg.
On May 31, 1993, after a formal investigation by the BOPI,
DA, the board issued a resolution finding respondent guilty
of simple misconduct 5 and recommending a penalty of
suspension for one (1) month and one (1) day. The
Secretary of Agriculture approved the recommendation.
In due time, respondent appealed the decision to the Civil
Service Commission (CSC). On July 7, 1994, the CSC
issued a resolution finding respondent guilty of grave
misconduct and imposing on him the penalty of dismissal
from the service. 6 Respondent moved for reconsideration
but the CSC denied the motion.
Then, respondent appealed to the Court of Appeals. On
October 29, 1996, the Court of Appeals promulgated its
decision setting aside the resolution of the CSC and
reinstating the resolution of the BOPI, DA, stating thus: "It is
true that the Civil Service Act does not define grave and
simple misconduct. There is, however, no question that
these offenses fall under different categories. This is clear
from a perusal of memorandum circular No. 49-89 dated
August 3, 1989 (also known as the guidelines in the
application of penalties in administrative cases) itself which
classifies administrative offenses into three: grave, less
grave and light offenses. The charge of grave misconduct
falls under the classification of grave offenses while simple
misconduct is classified as a less grave offense. The former
is punishable by dismissal while the latter is punishable
either by suspension (one month and one day to six
months), if it is the first offense; or by dismissal, if it is the
second. Thus, they should be treated as separate and
distinct offenses. 7
The Court of Appeals further ruled that "a basic requirement
of due process on the other hand is that a person must be
duly informed of the charges against him (Felicito Sajonas
vs. National Labor Relations Commission, 183 SCRA 182).
In the instant case however, Lucas came to know of the
modification of the charge against him only when he
received notice of the resolution dismissing him from the
service. 8
Hence, this petition.
The issues are (a) whether respondent Lucas was denied
due process when the CSC found him guilty of grave
misconduct on a charge of simple misconduct, and (b)
whether the act complained of constitutes grave misconduct.
Petitioner anchors its position on the view that "the formal
charge against a respondent in an administrative case need
not be drafted with the precision of an information in a
criminal prosecution. It is sufficient that he is apprised of the
substance of the charge against him; what is controlling is
the allegation of the acts complained of, and not the
designation of the offense. 9
We deny the petition.
As well stated by the Court of Appeals, there is an existing
guideline of the CSC distinguishing simple and grave
misconduct. In the case of Landrito vs. Civil Service
Commission, we held that "in grave misconduct as
distinguished from simple misconduct, the elements of
corruption, clear intent to violate the law or flagrant disregard
of established rule, must be manifest, 10 which is obviously
lacking in respondent's case. Respondent maintains that as
he was charged with simple misconduct, the CSC deprived
him of his right to due process by convicting him of grave
misconduct.
We sustain the ruling of the Court of Appeals 11 that: (a) a
basic requirement of due process is that a person must be
duly informed of the charges against him 12 and that (b) a
person can not be convicted of a crime with which he was
not charged. 13
Administrative proceedings are not exempt from basic and
fundamental procedural principles, such as the right to due
process in investigations and hearings. 14
The right to substantive and procedural due process is
applicable in administrative proceedings. 15
Of course, we do not in any way condone respondent's act.
Even in jest, he had no right to touch complainant's leg.
However, under the circumstances, such act is not
constitutive of grave misconduct, in the absence of proof that
respondent was maliciously motivated. We note that
respondent has been in the service for twenty (20) years and
this is his first offense.
IN VIEW WHEREOF, the Court hereby DENIES the petition
for review on certiorari and AFFIRMS the decision of the
Court of Appeals in CA-G.R. SP No. 37137.1wphi1.nt
No cost.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
EN BANC
G.R. No. 154521 September 30, 2005
CIVIL SERVICE COMMISSION, Petitioners,
vs.
JULIANA E. LEDESMA, Respondent.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review1 assailing the
Decision2 of 31 July 2002 of the Court of Appeals. The
appellate court modified the Civil Service Commissions
("CSC") Resolutions No. 0012513 and No. 002748,4 dated
24 May 2000 and 11 December 2000, respectively. The CSC
found Juliana E. Ledesma ("Ledesma") guilty of grave
misconduct, dishonesty and conduct prejudicial to the best
interest of the service, and dismissed her from the service.
The Court of Appeals found Ledesma guilty of simple
misconduct only, and suspended her for six months.
Antecedent Facts
Ledesma is a Clerk III at the Records Section of the Bureau
of Immigration ("Bureau"). She has been with the Bureau for
more than 32 years. Rank-and-file employees of the Bureau
elected Ledesma to chair their union, Buklod ng mga Kawani
ng CID ("Buklod"), for three consecutive terms.
On 20 March 1999, a Saturday, Tsai I Hau, also known as
Steve Tsai, and his sister, Tsai Ching Yi ("Ching Tsai"),
executed complaint-affidavits against Ledesma. The Tsai
siblings ("complainants") are Taiwanese nationals who were
studying in the country at the time. Both complaint-affidavits
were sworn before Assistant City Prosecutor Henry B. Icay
("Prosecutor Icay"), the prosecuting officer detailed to the
Bureau at the time.
In his affidavit,5 Steve Tsai attested that on 15 March 1999
he went to the Bureau to seek Ledesmas assistance in
securing Emigrant Certificate Clearances ("ECCs") for him
and Ching Tsai. He gave their passports and P3,000 to
Ledesma. Steve Tsai claimed that Ledesma has helped him
obtain ECCs for the previous three years. He usually paid
P1,500 for each ECC. He knew that out of the amount
Ledesma kept P200 to P300 as a "service charge."6
According to Steve Tsai, Ledesma instructed him to return
for the ECCs on 17 March 1999, a Wednesday. However,
Ledesma did not give him the ECCs on that date. Steve Tsai
informed Ledesma that he and his sister were leaving for a
vacation that Friday. Ledesma replied that he should return
the next day, but when he did, she was still unable to
produce the requested documents. On Friday, 19 March
1999, Ledesma gave Steve Tsai the ECCs but did not return
their passports.
Ching Tsais affidavit7 mostly repeated her brothers
allegations. On 15 March 1999, she gave Steve Tsai P1,500
and her passport because he was meeting Ledesma. On 18
March 1999, Ching Tsai accompanied her brother to see
Ledesma, but to no avail. The next day, Steve Tsai received
their ECCs but not their passports, with the result that the
complainants were not able to leave the country for their
planned vacation.
On 23 March 1999, complainants jointly executed a
supplemental affidavit8 attesting that they confronted
Ledesma about their missing passports in the presence of
Associate Commissioner Alan Roullo Yap ("Associate
Commissioner Yap"). The confrontation took place while
Associate Commissioner Yap was conducting an ocular
inspection of the Records Section and a re-enactment of
Steve Tsais "break-in"9 into the office. Ledesma denied that
she was in possession of complainants passports.
Complainants supplemental affidavit was also sworn before
Prosecutor Icay.
An administrative case was filed against Ledesma based on
complainants affidavits. In a memorandum dated 12 April
1999, the Bureau directed Ledesma to submit a verified
answer to the complaint-affidavits.
On 16 April 1999, Ledesma filed a Queries/Bill of Particulars
seeking a ten-day extension to file her answer. Ledesma
argued that the complaint-affidavits did not charge her with
any offense, and requested that the Department of Justice
("DOJ") investigate her case. Ledesma believed that the
Bureau would not be impartial because of her conflict with
then Commissioner Rufus B. Rodriguez ("Commissioner
Rodriguez"). Commissioner Rodriguez refused to recognize
the promotion of 132 Bureau employees, including Ledesma.
The Bureaus Promotion and Selection Board approved
these 132 promotions a few months before Commissioner
Rodriguez was appointed as head of the Bureau in 1988.
Associate Commissioner Yap issued a Resolution and
Notice of Formal Investigation on 19 April 1999. The
Resolution assured Ledesma of a fair investigation and
granted her an additional forty-eight hours to submit a
verified explanation to the charges. It also notified Ledesma
that the formal hearing of her administrative case would be
conducted in the office of Associate Commissioner Yap on
23 April 1999.
Ledesma appealed Associate Commissioner Yaps
Resolution to the DOJ on 22 April 1999. Ledesma failed to
appear at the scheduled hearing before Associate
Commissioner Yap, and neglected to submit a verified
explanation. Associate Commissioner Yap placed Ledesma
under preventive suspension.
On 4 June 1999, Acting Commissioner Ma. Luisa Ylagan-
Cortez rendered a Decision10 ("Bureaus Decision") finding
Ledesma guilty of dishonesty and grave misconduct
prejudicial to the best interest of the service. The Bureaus
Decision meted Ledesma with the penalties of dismissal,
disqualification from re-entry into the service, and forfeiture
of all benefits and emoluments. Ledesma assailed the
Bureaus Decision before the DOJ. On 16 August 1999, the
DOJ dismissed the appeal and affirmed the Bureaus
Decision.
Ledesma appealed to the CSC. In her appeal
memorandum,11 Ledesma claimed that: (1) she asked
Steve Tsai only for the amount lawfully required; (2) the extra
amount complainants voluntarily gave was what the travel
agent had requested for her assistance; and (3)
complainants, particularly Steve Tsai, executed their
affidavits under questionable circumstances. Ledesma also
explained that she did not appear at the 23 April 1999
hearing because her appeal from Associate Commissioner
Yaps Resolution was pending before the DOJ.
The Ruling of the Civil Service Commission
On 24 May 2000, the CSC issued Resolution No. 001251
dismissing Ledesmas appeal. The CSC pointed out that
while Ledesma admitted receiving P3,000 from Steve Tsai,
there was no proof that she later gave the money to a travel
agent. The CSC also ruled that Ledesma was guilty of
concealment or dishonesty when she did not explain to
Steve Tsai that he was paying more than the required fees.
The dispositive portion of Resolution No. 001251 reads:
WHEREFORE, the appeal of Juliana E. Ledesma is
dismissed. Accordingly, the decision dated August 16, 1999
of the Secretary of the Department of Justice, affirming the
decision of the Bureau of Immigration dated June 4, 1999
finding her guilty of Dishonesty, Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service and
for which she is meted out the penalty of dismissal from the
service, with its accessory penalties, stands.12
Ledesma filed a motion for reconsideration and then a
supplemental motion for reconsideration. She attached to
the latter a so-called Sworn Statement13 ("Leonors
statement") from a Lilian Leonor ("Leonor"). Ledesma
claimed that she had just received Leonors statement by
registered mail.
According to Leonors statement, Ledesma merely referred
Steve Tsai to Leonor, who was one of the Liaison Officers
accredited by the Bureau. On 15 March 1999, in the
presence of Steve Tsai, Ledesma handed complainants
passports, documents and P3,000 to Leonor. Leonor
secured the ECCs and proceeded to the Records Section on
Friday, 19 March 1999. Once there, Leonor discovered that
she had left complainants passports in another folder.
Leonor left a message for Ledesma, who was not around,
that she would return with complainants passports on "the
next working day." However, when she heard that Steve Tsai
had been caught breaking into the Records Section, Leonor
decided to stay away from the Bureau. Leonor came forward
only when she found out that Ledesma was being dismissed
from the Bureau.
The CSC gave scant consideration to Leonors statement.
The CSC noted that Leonor was not a government employee
or a party to the case, and that Ledesma had never
mentioned Leonors name in her appeal memorandum or
first motion for reconsideration. Given its late introduction,
the CSC found Leonors statement highly doubtful.
In its Resolution No. 002748 dated 11 December 2000, the
CSC denied Ledesmas motion for reconsideration and
affirmed Resolution No. 001251.
The Ruling of the Court of Appeals
On appeal, the Court of Appeals took cognizance of Leonors
statement and the conflict between Ledesma and
Commissioner Rodriguez. Taking Ledesmas three decades
of previously unblemished service and the circumstances of
the case into account, the appellate court held that there was
insufficient proof that Ledesma acted with corrupt intention
or willful intent to violate the law or established rules.
The Court of Appeals found Ledesma guilty of simple
misconduct only, thus:
Considering that petitioner Ledesma served the government
for more than thirty (30) years with an untarnished record of
service and evidence show[s] that petitioner had not
previously or persistently committed acts inimical to
government service, the act committed by petitioner may be
classified as simple misconduct. Thus, the penalty
commensurate thereof would be six (6) months suspension
without pay.
WHEREFORE, the assailed resolutions are hereby
AFFIRMED with MODIFICATION in that she is found guilty
of simple misconduct. Petitioner Ledesma is therefore
penalized to suffer a suspension from the service without
pay for six (6) months. However, since petitioner has been
out of the service for more than six months, she is therefore
ordered REINSTATED immediately.
Accordingly, petitioner Ledesma is entitled to payment of
backwages from the time she was dismissed from the
service, commencing from the time she has deemed served
the aforestated six (6) months suspension up to the time of
her actual reinstatement.14
Dissatisfied, the CSC elevated the Court of Appeals
Decision of 31 July 2002 to this Court. Ledesma did not
appeal. She returned to work in the Bureau pursuant to the
Decision of the Court of Appeals.
The Issue
The CSCs sole assignment of error reads:
THE COURT OF APPEALS ERRED ON A QUESTION OF
LAW IN AFFIRMING THE JUDGMENT OF PETITIONER
AND AT THE SAME TIME DOWNGRADING THE OFFENSE
COMMITTED BY RESPONDENT FROM GRAVE
MISCONDUCT TO SIMPLE MISCONDUCT BECAUSE OF
HER LENGTH OF SERVICE AND THE SUPPOSED
ABSENCE OF A CORRUPT INTENTION TO VIOLATE THE
LAW.15
The CSC also scored the Court of Appeals supposed failure
to rule on whether respondent committed the administrative
offense of dishonesty.
The Ruling of the Court
The petition lacks merit.
Whether the Decision of the Court of Appeals
Violated Ledesmas Constitutional Right to Due Process
The CSCs contention that the Court of Appeals failed to rule
on the charge of dishonesty and violated Section 14, Article
VIII of the Constitution16 is without basis.
The Decision of the Court of Appeals states:
Petitioner is not innocent of any misconduct and We agree
with public respondent CSC that there are substantial
evidence to prove her guilt, not of dishonesty, grave
misconduct and conduct prejudicial to the best interest of the
service but simple misconduct.17
Clearly, the Court of Appeals did not simply ignore the
charge of dishonesty, as the CSC alleges. Rather, the
appellate court found that the evidence did not support the
charges enumerated, including that of dishonesty. The
appellate court appreciated the evidence presented and the
facts of the case differently from the CSC. The Court of
Appeals discussed at length in its 15-page Decision the
factual and legal basis for its verdict of simple misconduct.
The appellate court Decision thus sufficiently complied with
Section 14, Article VIII of the Constitution, which requires
only that a courts decision be clear on why either party
prevailed under the law applicable to the facts as proved.18
The constitutional provision does not require a point-by-point
refutation of the CSCs Resolutions so long as the basis for
the Court of Appeals decision modifying the former is clear.
The records support the appellate courts finding that Steve
Tsai knowingly paid more than the required ECC fees. Steve
Tsai stated in his affidavit that he knew he was paying P200
or P300 more than the necessary fees.19 There is no basis
in finding that Ledesma "concealed" this fact from Steve Tsai
to mislead him into paying more money.
The CSC next argues that the Court of Appeals erred in
finding Ledesma guilty of simple misconduct when the
charge against her was for grave misconduct. Citing Civil
Service Commission v. Lucas,20 the CSC posits that a
person charged with grave misconduct cannot be convicted
of simple misconduct because the two are distinct and
separate offenses.
This argument ignores prevailing jurisprudence and
misapplies the Courts ruling in Lucas. In that case, the CSC
found Lucas guilty of grave misconduct though the charge
against him was for simple misconduct only. The Court held
that the CSCs verdict in Lucas violated the basic
requirements of due process. The Court ruled that even in
an administrative proceeding Lucas had the right to be
informed of the charges against him, as well as the right not
to be convicted of an offense for which he was not
charged.21
Misconduct is "a transgression of some established and
definite rule of action, more particularly, unlawful behavior or
gross negligence by a public officer."22 The misconduct is
grave if it involves any of the additional elements of
corruption, willful intent to violate the law or to disregard
established rules, which must be established by substantial
evidence.23 Otherwise, the misconduct is only simple. A
person charged with grave misconduct may be held liable for
simple misconduct if the misconduct does not involve any of
the additional elements to qualify the misconduct as grave.
Grave misconduct necessarily includes the lesser offense of
simple misconduct. A person charged with simple
misconduct cannot be held liable for the more serious
offense of grave misconduct because he will be deprived of
his constitutional right to be informed of the charges against
him. A charge of simple misconduct does not give him notice
that he must traverse and if necessary rebut not only the
charge of misconduct, but also the element of corruption or
willful intent to violate the law or established rules. This is the
situation in the case of Civil Service Commission v. Lucas.
In contrast, a person charged with grave misconduct is put
on notice that he stands accused of misconduct coupled with
any of the elements of corruption or willful intent to violate
the law or established rules. Thus, such person can be held
liable for simple misconduct if any of the elements to make
the misconduct grave is not established by substantial
evidence. In such a situation, there is no violation of a
persons constitutional right to be informed of the charges
against him. This is the situation in the present case.
Consequently, the Court does not see how a verdict of
simple misconduct can violate Ledesmas right to due
process. The Court has, on several instances, overturned
charges of grave misconduct where the circumstances
showed that the respondent only committed simple
misconduct.24
Even in criminal cases, a person may be convicted of a
different offense than the offense he is charged with if the
latter offense necessarily includes the elements of the lesser
offense established by the evidence.25 There is no reason
why the same principle should not apply in administrative
cases. Criminal cases operate under more stringent rules
than administrative proceedings. The right of an accused to
due process is even more closely guarded in a criminal
case.
Whether the Court of Appeals Erred in Finding Ledesma
Guilty of Simple Misconduct
The Court of Appeals affirmed the CSCs Resolutions insofar
as the latter found that Ledesma committed misconduct.
Ledesma herself accepted this finding when she did not
appeal and returned to work pursuant to the appellate court
Decision.
Ledesma disclosed in her appeal memorandum26 before the
CSC that she asked Steve Tsai for an amount sufficient to
cover the fees for two ECCs, and that complainants gave her
P3,000, or P460 more than the sum required. Even if
Ledesma subsequently passed the P3,000 and
complainants documents to a travel agent, the fact remains
that Ledesma, a Records clerk, had no authority to receive
money or documents for Bureau transactions or to transact
with foreign nationals seeking ECCs. Having been with the
Bureau for more than three decades, Ledesma was surely
aware of the rules and procedure of the Bureau on the
issuance of ECCs. Ledesma herself explained that it was the
Bureaus Alien Registration Division that was responsible for
processing ECCs.27 By her own admission, Ledesmas
actions contravened the established rules of the Bureau on
the issuance of ECCs.
The remaining question is whether Ledesma is guilty of
grave misconduct and deserves dismissal from the service
and forfeiture of all her benefits.
This issue is factual in nature because it requires a re-
evaluation of the evidence at hand. Under Rule 45, factual
findings are ordinarily not subject to this Courts review. The
general rule is that the findings of facts of the Court of
Appeals are binding on this Court. A recognized exception to
this rule is when the Court of Appeals and the trial court, or
in this case the administrative body, make contradictory
findings.28 However, the exception does not apply in every
instance that the Court of Appeals and the trial court or
administrative body disagree. The factual findings of the
Court of Appeals remain conclusive on this Court if such
findings are supported by the record or based on substantial
evidence.29
Likewise, although the factual findings of administrative
bodies are entitled to great weight and respect on appeal,
such findings must be supported by substantial evidence.30
After a careful review of the records, we agree with the Court
of Appeals that the elements particular to grave misconduct
were not adequately proven in this case.
The charges against Ledesma are based on the affidavits
executed by complainants, particularly Steve Tsais. As the
Court of Appeals observed, peculiar circumstances
surrounding the execution of complainants affidavits cast
doubt on their credibility.
The Bureaus security log shows that Steve Tsai broke into
the Records Section office on 20 March 1999, a Saturday
and a non-working day.31 Bureau guards caught Steve Tsai
and detained him. Within a few hours, while Steve Tsai was
under Bureau custody, he and his sister executed their
complaint-affidavits against Ledesma. Both complaint-
affidavits were acknowledged before and certified by
Prosecutor Icay on the same non-working day, 20 March
1999.
Three days later, during a re-enactment of Steve Tsais
break-in, complainants confronted Ledesma in the presence
of Associate Commissioner Yap. Complainants executed
their supplemental affidavit against Ledesma on the same
day, again with the assistance of Prosecutor Icay.
The haste marking the execution of complainants affidavits
and the proceedings against Ledesma gives some force to
the latters claim that Bureau officials were eager to
prosecute her. We quote the findings of the Court of Appeals
on the rancor between Ledesma and Bureau management:
It must be remembered that petitioner and then
Commissioner Rufus B. Rodriguez were at odds over
several issues at the [Bureau of Immigration] BI especially
with the promotion of 132 personnel whose assumption to
office was impeded by Commissioner Rodriguez. Hence,
petitioner who was the Chairperson of the BI employees
union, Buklod ng mga Kawani ng CID, and also one of the
132 personnel, filed a case against then Commissioner
Rodriguez before the Ombudsman. This was not refuted by
the BI.
Interestingly, immediately after said conflict arose, several
fabricated cases were instituted by fictitious individuals
against petitioner Ledesma before the Ombudsman.
Eventually, the Ombudsman dismissed these cases. Hence,
it is highly probable that said cases were intended to harass
petitioner. It is therefore not far-fetched that petitioner will
suspect that then Commissioner Rodriguez had a hand in
the filing of said fabricated cases against her.32 (Emphasis
supplied)
The records indeed show that, after 32 years of blameless
service, three administrative complaints suddenly surfaced
against Ledesma within the same month. The complaints
were filed successively at the rate of almost one complaint a
week in March 1999.33 Ledesma claims that these charges
were meant to cause her removal from the Bureau after she
signed Buklods complaint against Commissioner Rodriguez.
The first two complaints against Ledesma were lodged with
the Ombudsman. The latter summarily dismissed these
complaints for lack of merit and because the complainants in
those cases appeared to be fictitious.34 Only the charges
filed with the Bureau prospered.
The Court finds it strange that, except for the brief mention of
an "ocular inspection and re-enactment of the break-in
incident conducted by Associate Commissioner Yap" in
complainants supplemental affidavit, there is barely any
reference to the incident in the records forwarded by the
Bureau and the CSC. Only Ledesma has persistently
brought the incident to the attention of the agencies and
courts hearing her case.
Indeed, the Bureau and CSC seem to have mostly ignored
Steve Tsais self-styled "break-in" and its implications on this
case. There is no reference to it in the Bureaus Decision.
The CSC similarly regarded the break-in as irrelevant to the
present case. The CSCs discussion of the break-in amounts
to scarcely more than a paragraph, as follows:
xxx The Commission in dismissing Ledesmas appeal in
CSC Resolution No. 00-1251 did not lose sight of the fact
that initially, the complainant was placed under custody
because of breaking into a government office. The
investigation of the incident resulted in a reasonable
explanation as to the reason why the complainant broke into
the BI premises. Consequently, the satisfactory explanation
of the complainant led to Ledesmas exposure to
administrative charges.
The criminal liability of the complainant for unlawfully
entering the premises, on the other hand, is a matter distinct
from the instant case.35
A review of the records shows that there was practically no
investigation conducted on the break-in. Again, the Bureaus
Decision does not even mention the incident. The Bureau
decided against Ledesma mainly because she failed to
answer the charges against her and to attend the hearing on
23 April 1999.36 The "reasonable" and "satisfactory"
explanation the CSC refers to is the bare allegation of the
Bureau that Steve Tsai broke into the Records Section to
look for his passport. It should be noted that this explanation
does not even appear in any of the affidavits executed by
Steve Tsai.
Certainly, Steve Tsai cannot be prosecuted for his offense in
this proceeding. However, the mere fact that Steve Tsai
executed his complaint-affidavit on the same day that he
was caught for suspicious activities should have raised
misgivings about his character, motives and truthfulness.
That the Bureau so quickly placed full faith and credence in
Steve Tsais claims puzzles the Court.
More disturbing is the undisputed contention that Steve Tsai
was not charged for such a serious offense. This is highly
unusual, to say the least. Ordinarily, a foreigner who breaks
into a government office would expect to face investigation,
prosecution and perhaps expulsion from the country, if not
incarceration. Instead, Steve Tsai received speedy and
extensive assistance from the very agency he tried to
burglarize.
In administrative proceedings, the burden is on the
complainant to prove by substantial evidence the allegations
in his or her complaint.37 Obviously, the credibility of the
complainant should be considered in judging whether the
standard of evidence was met or not. Although less than
preponderant, substantial evidence is not just any scrap or
scintilla of evidence. Substantial evidence is that amount of
relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.38
The standard was not met in this case. Taken as a whole,
the circumstances surrounding this case and the execution
of the complaint-affidavits against Ledesma would raise
doubts in a reasonable mind.
The primary complainant, Steve Tsai, is a foreigner who was
a mere student at the time. Yet he blithely broke into a
government office on a day that he probably knew, from his
stay in the country, to be a non-working day. At the least, this
brazen and appalling conduct shows that Steve Tsai is
hardly trustworthy. His version of events should not be
accepted wholesale. We have previously held that the
standard of substantial evidence is not met by affidavits of
questionable veracity.39
Given the questionable nature of the complainants affidavits,
we are left with Ledesmas admission that she received
P3,000 from complainants. There is no dispute that P2,560
was the required fee for two ECCs in 1999. This amount was
actually paid to the Bureau, and Steve Tsai and Ching Tsai
received their ECCs. Only P460 is unaccounted. Ledesmas
admission, however, does not prove by itself corruption or
the other elements particular to grave misconduct. Ledesma
admitted to receiving the money only so she could pass it to
someone else and not for her own benefit. In the absence of
substantial evidence to the contrary, Ledesmas explanation
is plausible. Moreover, to warrant dismissal, the misconduct
must be grave, serious, important, weighty, momentous and
not trifling.40 That is not the case here.
We stress that the law does not tolerate misconduct by a civil
servant. Public service is a public trust, and whoever breaks
that trust is subject to sanction. Dismissal and forfeiture of
benefits, however, are not penalties imposed for all
infractions, particularly when it is a first offense. There must
be substantial evidence that grave misconduct or some other
grave offense meriting dismissal under the law was
committed.
Further, this is Ledesmas first offense in more than three
decades of otherwise untarnished public service. Under the
circumstances, we agree with the Court of Appeals that
suspension for six months is an adequate penalty.41
A final note. The CSC disregarded Leonors statement
because, among other reasons, Leonor had "no personality
in the instant case to offer in evidence her affidavit."42 By
this, the CSC meant that Leonor was not a government
employee, that she was not a party to the instant case, and
that the CSC "had no disciplinary jurisdiction" over her.43
Leonor, however, was not trying to intervene in the present
case. Leonor was offering her statement merely as a
witness. A person need not be a government employee or a
party to a case to offer evidence in an administrative
proceeding. Under the rules, any person who can perceive
and make his perception known to others, and who has
personal knowledge about the facts of a case, can be a
witness.44
Nevertheless, Leonors statement has certain shortcomings.
Despite its title as a "Sworn Statement," 45 Leonors
statement was not acknowledged before a notary public or
officer legally authorized to administer oaths. It was thus not
"sworn to" and could not be regarded as having been given
under oath. It is in effect a private document, ordinarily
subject to proof of its due execution and authenticity.46 In
admitting Leonors statement, the Court of Appeals held that
the CSC is not bound by technical rules of procedure in
administrative proceedings. Although true,47 this does not
preclude the CSC from considering a documents technical
defects and the tardiness of its submission in weighing its
probative value.
However, the CSC should have also considered the dubious
circumstances under which the complaint against Ledesma
was lodged. The burden of proof in administrative cases lies
on the complainant. The CSC should have subjected
complainants affidavits to the same meticulous examination
it gave to Leonors statement.
WHEREFORE, we DENY the petition. We AFFIRM the
Decision of 31 July 2002 of the Court of Appeals in CA-G.R.
SP No. 62827.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
A.M. No. P-07-2333 December 19, 2007
(formerly OCA IPI No. 07-2510-P)
ANONYMOUS, complainant,
vs.
MA. VICTORIA P. RADAM, Utility Worker, Office of the Clerk
of Court, Regional Trial Court of Alaminos City, respondent.
RESOLUTION
CORONA, J.:
In an anonymous letter-complaint dated September 30,
2005,1 respondent Ma. Victoria Radam, utility worker in the
Office of the Clerk of Court of the Regional Trial Court of
Alaminos City in Pangasinan, was charged with immorality.
The unnamed complainant alleged that respondent was
unmarried but got pregnant and gave birth sometime in
October 2005.2 The complainant claimed that respondents
behavior tainted the image of the judiciary.
In connection with the complaint, Judge Elpidio N. Abella3
conducted a discreet investigation to verify the allegations
against respondent.
In his report dated March 8, 2006,4 Judge Abella made the
following findings:
On March 1, 2006, respondent submitted a letter addressed
to the Honorable Court Administrator, thru the undersigned,
duly subscribed and sworn to before the Clerk of Court VI of
the Court, alleging among others, the following:
1) She admitted that she is single/unmarried, and indeed she
was pregnant and actually gave birth to a baby boy named
Christian Jeon Radam on 03 November 2005 at the Western
Pangasinan District Hospital, Alaminos City;
2) The reason why she did not yet marry the father of her
child Christian Jeon was that she and the childs father have
pending application[s] [to migrate to Canada] as in fact they
have [a] mutual plan to remain unmarried [and]
3) Nevertheless, she expressed her remorse and promised
not to commit the same mistake and indiscretion in the
future.
Further investigation reveal[ed] the following:
1) That respondent was appointed as Utility Worker on
September 4, 2000;
2) The father of Christian Jeon Radam is unknown, as
shown by the childs Certificate of Live Birth, hereto
attached;5
3) It was verbally admitted by the respondent that she had
given birth to two (2) other children before Christian Jeon,
but they were conceived and born while respondent was
working abroad and before she was employed in the [Office
of the Clerk of Court of the Regional Trial Court of] Alaminos
City.6
In this connection, Judge Abella made the following
recommendation:
Since respondent admitted that she is single and that she
got pregnant and gave birth to a baby boy without being
married to the father of the child, albeit she advanced the
reason for her remaining unmarried, it being that she and her
boyfriend had a mutual plan to migrate to Canada, this
Investigating Judge considers that such conduct of the
respondent fell short of the strict standards of Court
personnel and contrary to the Code of Judicial Ethics and
the Civil Service Rules. A place in the judiciary demands
upright men and women who must carry on with dignity,
hence respondent is guilty of disgraceful and immoral
conduct which cannot be countenanced by the Court.
Certainly, the image of the Judiciary has been affected by
such conduct of the respondent.
Premises considered, it is hereby respectfully recommended
that respondent MA. VICTORIA RADAM be accordingly
found GUILTY of IMMORAL CONDUCT or ACT
UNBECOMING A COURT EMPLOYEE. A suspension of one
(1) month or a fine of Php5,000.00 is respectfully
recommended, with warning that a repetition of the same or
similar act in the future will be dealt with more severely.7
After reviewing the findings and recommendation of Judge
Abella, the Office of the Court Administrator (OCA)
recommended that, in accordance with Villanueva v. Milan,8
respondent be absolved of the charge of immorality because
her alleged misconduct (that is, giving birth out of wedlock)
did not affect the character and nature of her position as a
utility worker.9 It observed:
[T]here is no indication that the relationship of respondent to
her alleged boyfriend has caused prejudice to any person or
has adversely affected the performance of her function as
utility worker to the detriment of the public service.
However, it proposed that she be held liable for conduct
unbecoming a court employee and imposed a fine of P5,000
for stating in the birth certificate of her child Christian Jeon
that the father was "unknown" to her.10
The OCA correctly exonerated respondent from the charge
of immorality. However, its recommendation to hold her liable
for a charge of which she was not previously informed was
wrong.
For purposes of determining administrative responsibility,
giving birth out of wedlock is not per se immoral under civil
service laws. For such conduct to warrant disciplinary action,
the same must be "grossly immoral," that is, it must be so
corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree.11
In Estrada v. Escritor,12 we emphasized that in determining
whether the acts complained of constitute "disgraceful and
immoral behavior" under civil service laws, the distinction
between public and secular morality on the one hand, and
religious morality, on the other should be kept in mind.13 The
distinction between public and secular morality as expressed
albeit not exclusively in the law, on the one hand, and
religious morality, on the other, is important because the
jurisdiction of the Court extends only to public and secular
morality.14 Thus, government action, including its
proscription of immorality as expressed in criminal law like
adultery or concubinage, must have a secular purpose.15
For a particular conduct to constitute "disgraceful and
immoral" behavior under civil service laws, it must be
regulated on account of the concerns of public and secular
morality. It cannot be judged based on personal bias,
specifically those colored by particular mores. Nor should it
be grounded on "cultural" values not convincingly
demonstrated to have been recognized in the realm of public
policy expressed in the Constitution and the laws.16 At the
same time, the constitutionally guaranteed rights (such as
the right to privacy) should be observed to the extent that
they protect behavior that may be frowned upon by the
majority.17
Under these tests, two things may be concluded from the
fact that an unmarried woman gives birth out of wedlock:
(1) if the father of the child is himself unmarried, the woman
is not ordinarily administratively liable for disgraceful and
immoral conduct.18 It may be a not-so-ideal situation and
may cause complications for both mother and child but it
does not give cause for administrative sanction. There is no
law which penalizes an unmarried mother under those
circumstances by reason of her sexual conduct or proscribes
the consensual sexual activity between two unmarried
persons. Neither does the situation contravene any
fundamental state policy as expressed in the Constitution, a
document that accommodates various belief systems
irrespective of dogmatic origins.19
(2) if the father of the child born out of wedlock is himself
married to a woman other than the mother, then there is a
cause for administrative sanction against either the father or
the mother.20 In such a case, the "disgraceful and immoral
conduct" consists of having extramarital relations with a
married person.21 The sanctity of marriage is constitutionally
recognized22 and likewise affirmed by our statutes as a
special contract of permanent union.23 Accordingly, judicial
employees have been sanctioned for their dalliances with
married persons or for their own betrayals of the marital vow
of fidelity.
In this case, it was not disputed that, like respondent, the
father of her child was unmarried. Therefore, respondent
cannot be held liable for disgraceful and immoral conduct
simply because she gave birth to the child Christian Jeon out
of wedlock.
Respondent was indicted only for alleged immorality for
giving birth out of wedlock. It was the only charge of which
she was informed. Judge Abellas investigation focused
solely on that matter. Thus, the recommendation of the OCA
that she be held administratively liable in connection with an
entry in the birth certificate of Christian Jeon came like a
thief in the night. It was unwarranted. Respondent was
neither confronted with it nor given the chance to explain it.
To hold her liable for a totally different charge of which she
was totally unaware will violate her right to due process.
The essence of due process in an administrative proceeding
is the opportunity to explain ones side, whether written or
verbal.24 This presupposes that one has been previously
apprised of the accusation against him or her. Here,
respondent was deprived of both with regard to her alleged
unbecoming conduct in relation to a certain statement in the
birth certificate of her child.
An employee must be informed of the charges proferred
against him, and the normal way by which the employee
is so informed is by furnishing him with a copy of the charges
against him. This is a basic procedural requirement that
cannot [be] dispense[d] with and still remain consistent with
the constitutional provision on due process. The second
minimum requirement is that the employee charged with
some misfeasance or malfeasance must have a reasonable
opportunity to present his side of the matter, that is to say,
his defenses against the charges levelled against him and to
present evidence in support of his defense(s).25
Ones employment is not merely a specie of property rights.
It is also the means by which he and those who depend on
him live.26 It is therefore protected by the guarantee of
security of tenure. And in the civil service, this means that no
government employee may be removed, suspended or
disciplined unless for cause provided by law27 and after due
process. Unless the constitutional guarantee of due process
is a mere platitude, it is the Courts duty to insist on its
observance in all cases involving a deprivation, denigration
or dilution of ones right to life, liberty and property.
WHEREFORE, the administrative complaint against
respondent Ma. Victoria P. Radam is hereby DISMISSED.
She is, however, strongly advised to be more circumspect in
her personal and official actuations in the future.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 132248 January 19, 2000
HON. ERLINDA C. PEFIANCO, in her capacity as Secretary
of the Department of Education, Culture and Sports,
petitioner,
vs.
MARIA LUISA C. MORAL, respondent.
BELLOSILLO, J.:
SECRETARY ERLINDA C. PEFIANCO of the Department of
Education, Culture and Sports (DECS) seeks to nullify
through this petition for review the Decision of the Court of
Appeals1 dismissing the certiorari filed by then DECS
Secretary Ricardo T. Gloria for lack of merit, as well as its
Resolution dated 13 January 1998 denying reconsideration
thereof.1wphi1.nt
On 26 July 1994 former DECS Secretary Ricardo T. Gloria
filed a complaint against respondent Maria Luisa C. Moral,
then Chief Librarian, Catalog Division, of the National Library
for dishonesty, grave misconduct and conduct prejudicial to
the best interest of the service. The complaint charged
respondent Moral with the pilferage of some historical
documents from the vaults of the Filipiniana and Asian
Division (FAD) of the National Library which were under her
control and supervision as Division Chief and keeping in her
possession, without legal authority and justification, some
forty-one (41) items of historical documents which were
missing from the FAD vaults of the National Library.
The DECS Investigating Committee conducted several
hearings on the complaint. Atty. Jose M. Diaz, Special
Prosecutor from the Department of Justice, represented the
DECS Secretary in the administrative case while respondent
was represented by her own private counsel. On 25
September 1996 Secretary Gloria issued a resolution finding
respondent "guilty of the administrative offenses of
dishonesty, grave misconduct and conduct prejudicial to the
best interest of the service, for the commission of pilferage of
historical documents of the national library, to the prejudice
of the national library in particular, and the country in
general." She was ordered dismissed from the government
service with prejudice to reinstatement and forfeiture of all
her retirement benefits and other remunerations.
On 30 September 1996 respondent received a copy of the
resolution. Thereafter, or on 1 October 1996, she received
another resolution correcting the typographical errors found
on the first resolution. Respondent did not appeal the
judgment.
On 2 October 1996 respondent filed a Petition for the
Production of the DECS Investigation Committee Report
purportedly to "guide [her] on whatever action would be most
appropriate to take under the circumstances."2 Her petition
was, however, denied.
Unfazed, she filed a Reiteration for DECS Committee Report
and DECS Resolution dated September 25, 1996, which
Secretary Gloria similarly denied in his Order of 23 October
1996. Respondent moved for reconsideration but the motion
was merely "noted" in view of the warning in the 23 October
1996 Order that the denial of the request for the production
of the Investigation Committee Report was final.3 As earlier
stated, respondent did not appeal the Resolution dated 30
September 1996 dismissing her from the service. Instead,
she instituted an action for mandamus and injunction before
the regular courts against Secretary Gloria praying that she
be furnished a copy of the DECS Investigation Committee
Report and that the DECS Secretary be enjoined from
enforcing the order of dismissal until she received a copy of
the said report.4
Secretary Gloria moved to dismiss the mandamus case
principally for lack of cause of action, but the trial court
denied his motion. Thus, he elevated the case to the Court
of Appeals on certiorari imputing grave abuse of discretion to
the trial court. In its assailed Decision of 24 November 1997
the appellate court sustained the trial court and dismissed
Secretary Gloria's petition for lack of merit holding that
FIRST. Petitioner Gloria acted prematurely, not having filed
any motion for reconsideration of the assailed order with the
respondent judge before filing the instant petition to this
Court. This constitutes a procedural infirmity . . . . SECOND.
Even if the aforesaid procedural defect were to be
disregarded, the petition at hand, nevertheless, must fail.
The denial of the motion to dismiss is an option available to
the respondent judge. Such order is interlocutory and thus
not appealable. The proper recourse of the aggrieved party
is to file an answer and interpose, as defenses, the
objection(s) raised by him in said motion to dismiss, then
proceed with the trial and, in case of adverse decision, to
elevate the entire case on appeal in due course.
His motion for reconsideration having been denied by the
Court of Appeals on 13 January 1998, Secretary Gloria filed
the instant petition for review.
Meanwhile, Secretary Gloria was replaced by Secretary
Erlinda C. Pefianco who was thereafter substituted in the
case for Secretary Gloria.
The issues before us are: whether the Court of Appeals
erred in dismissing the petition for certiorari for failure of
petitioner to file a motion for reconsideration of the order
denying the motion to dismiss, and in holding that the trial
court did not commit grave abuse of discretion in denying the
motion to dismiss.
Petitioner contends that there is no need to file a motion for
reconsideration as the trial court's order denying the motion
to dismiss is a patent nullity, and a motion for
reconsideration would practically be a useless ceremony as
the trial court virtually decided the case, and that there is no
law requiring the DECS to furnish respondent with a copy of
the Report of the DECS Investigation Committee so that the
petition for mandamus has no leg to stand on hence should
have been dismissed for lack of cause of action.
Excepting thereto respondent argues that the denial of the
motion to dismiss is interlocutory in nature as it did not
dispose of the case on the merits, and petitioner still has a
residual remedy, i.e., to file an answer, thus her substantive
rights have not been violated as she contends; that
respondent is clearly entitled to the remedy of mandamus to
protect her rights; and, that petitioner has not shown any law,
DECS order or regulation prohibiting the release of the
petitioned documents for reasons of confidentiality or
national security.
We grant the petition. Section 3, Rule 16, of the 1997 Rules
of Civil Procedure mandatorily requires that the resolution on
a motion to dismiss should clearly and distinctly state the
reasons therefor
After hearing, the court may dismiss the action or claim,
deny the motion or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly
the reasons therefor (Emphasis supplied).
Clearly, the above rule proscribes the common practice of
perfunctorily denying motions to dismiss "for lack of merit."
Such cavalier disposition often creates difficulty and
misunderstanding on the part of the aggrieved party in taking
recourse therefrom and likewise on the higher court called
upon to resolve the issue, usually on certiorari.
The challenged Order of the trial court dated 23 April 1997
falls short of the requirements prescribed in Rule 16. The
Order merely discussed the general concept of mandamus
and the trial court's jurisdiction over the rulings and actions
of administrative agencies without stating the basis why
petitioner's motion to dismiss was being denied. We are
reproducing hereunder for reference the assailed Order
This treats of the Motion to Dismiss filed by respondent
Gloria on 14 March 1997 to which petitioner filed their (sic)
opposition on April 8, 1997.
Respondent premised his motion on the following grounds:
(a) Mandamus does not lie to compel respondent DECS
Secretary to release the Report of the DECS Investigating
Committee because the Petition does not state a cause of
action; (b) The DECS Resolution dismissing petitioner is
legal and valid, and therefore, the writ of preliminary
injunction cannot be granted to enjoin its execution; while
petitioner alleged among others that she has no plain,
speedy and adequate remedy in the ordinary course of law.
Mandamus is employed to compel the performance, when
refused, of a ministerial duty, this being its main objective.
"Purely ministerial" are acts to be performed in a given state
of facts, in a prescribed manner in obedience to the mandate
of legal authority without regard to the exercise of his own
judgment upon the propriety or impropriety of the act done.
While the discretion of a Constitutional Commission cannot
be controlled by mandamus . . . . the court can decide
whether the duty is discretionary or ministerial . . . .
Generally, courts have no supervising power over the
proceedings and actions of the administrative departments
of the government. This is generally true with respect to acts
involving the exercise of judgment or discretion, and finding
of fact. Findings of fact by an administrative board or official,
following a hearing, are binding upon the courts and will not
be disturbed except where the board or official has gone
beyond his statutory authority, exercised unconstitutional
powers or clearly acted arbitrarily and without regard to his
duty or with grave abuse of discretion or as when there is
capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction as 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 . . . .
WHEREFORE, in regard to the foregoing, the motion to
dismiss by herein respondent is hereby denied for lack of
merit and is hereby ordered to file its (sic) responsive
pleadings within ten (10) days from receipt of this Order.
Copy furnished petitioner who is likewise given ten (10) days
to submit his (sic) comment or opposition.
Indeed, we cannot even discern the bearing or relevance of
the discussion therein on mandamus, vis-a-vis the ground
relied upon by petitioner in her motion to dismiss, i.e., lack of
cause of action, and the dispositive portion of the order. The
order only confused petitioner and left her unable to
determine the errors which would be the proper subject of
her motion for reconsideration. Judges should take pains in
crafting their orders, stating therein clearly and
comprehensively the reasons for their issuance, which are
necessary for the full understanding of the action taken.
Where the court itself has not stated any basis for its order,
to be very strict in requiring a prior motion for reconsideration
before resort to higher courts on certiorari may be had,
would be to expect too much. Since the judge himself was
not precise and specific in his order, a certain degree of
liberality in exacting from petitioner strict compliance with the
rules was justified.
Ordinarily, certiorari will not lie unless the lower court,
through a motion for reconsideration, has been given an
opportunity to correct the imputed errors on its act or order.
However, this rule is not absolute and is subject to well-
recognized exceptions. Thus, when the act or order of the
lower court is a patent nullity for failure to comply with a
mandatory provision of the Rules; as in this case, a motion
for reconsideration may be dispensed with and the
aggrieved party may assail the act or order of the lower court
directly on certiorari.5
On the second issue, the nature of the remedy of mandamus
has been the subject of discussions in several cases. It is
settled that mandamus is employed to compel the
performance, when refused, of a ministerial duty, this being
its main objective. It does not lie to require anyone to fulfill a
discretionary duty. It is essential to the issuance of a writ of
mandamus that petitioner should have a clear legal right to
the thing demanded and it must be the imperative duty of the
respondent to perform the act required. It never issues in
doubtful cases. While it may not be necessary that the duty
be absolutely expressed, it must nevertheless be clear. The
writ will not issue to compel an official to do anything which is
not his duty to do or which is his duty not to do, or give to the
applicant anything to which he is not entitled by law. The writ
neither confers powers nor imposes duties. It is simply a
command to exercise a power already possessed and to
perform a duty already imposed.6
In her petition for mandamus, respondent miserably failed to
demonstrate that she has a clear legal right to the DECS
Investigation Committee Report and that it is the ministerial
duty of petitioner DECS Secretary to furnish her with a copy
thereof. Consequently, she is not entitled to the writ prayed
for.
Primarily, respondent did not appeal to the Civil Service
Commission the DECS resolution dismissing her from the
service.7 By her failure to do so, nothing prevented the
DECS resolution from becoming final and executory.
Obviously, it will serve no useful purpose now to compel
petitioner to furnish her with a copy of the investigation
report.
Moreover, there is no law or rule which imposes a legal duty
on petitioner to furnish respondent with a copy of the
investigation report. On the contrary, we unequivocally held
in Ruiz v. Drilon8 that a respondent in an administrative case
is not entitled to be informed of the findings and
recommendations of any investigating committee created to
inquire into charges filed against him. He is entitled only to
the administrative decision based on substantial evidence
made of record, and a reasonable opportunity to meet the
charges and the evidence presented against her during the
hearings of the investigation committee. Respondent no
doubt had been accorded these rights.
Respondent's assertion that the investigation report would
be used "to guide [her] on what action would be appropriate
to take under the circumstances,"9 hardly merits
consideration. It must be stressed that the disputed
investigation report is an internal communication between
the DECS Secretary and the Investigation Committee, and it
is not generally intended for the perusal of respondent or any
other person for that matter, except the DECS Secretary. As
correctly ruled by Secretary Gloria in his Order of 2 October
1996
Respondent's (Moral) counsel is reminded that the Report of
the DECS Investigating Committee is not an integral part of
the Decision itself . . . . [t]he report is an internal
communication between the Investigating Committee and
the DECS Secretary, and, therefore, confidential until the
latter had already read and used the same in making his
own determination of the facts and applicable law of the
case, to be expressed in the Decision he may make.
The Report remains an internal and confidential matter to be
used as part although not controlling of the basis for
the decision. Only when the party adversely affected by the
decision has filed and perfected an appeal to the Civil
Service Commission may all the records of the case,
including the aforesaid Report be forwarded to the CSC. In
the latter appellate tribunal, the respondent's counsel may be
allowed to read and/or be given a copy of the Report to
enable the appellant to file an intelligent and exhaustive
appellant's Brief Memorandum.
More importantly, the DECS resolution is complete in itself
for purposes of appeal to the Civil Service Commission, that
is, it contains sufficient findings of fact and conclusion of law
upon which respondent's removal from office was grounded.
This resolution, and not the investigation report, should be
the basis of any further remedies respondent might wish to
pursue, and we cannot see how she would be prejudiced by
denying her access to the investigation report.
In fine, the trial court's Order of 23 April 1997 denying
petitioner's motion to dismiss is not a mere error of judgment
as the Court of Appeals held, but a grave abuse of discretion
amounting to lack or excess of jurisdiction because, to
capsulize, the Order is a patent nullity for failure to comply
with the provisions of the rules requiring that a resolution on
a motion to dismiss should clearly and distinctly state the
reasons therefor; and, respondent is clearly not entitled to
the writ of mandamus as she did not appeal the DECS
resolution dismissing her from service, and there is no law or
rule which imposes a ministerial duty on petitioner to furnish
respondent with a copy of the investigation report, hence her
petition clearly lacked a cause of action. In such instance,
while the trial court's order is merely interlocutory and non-
appealable, certiorari is the proper remedy to annul the
same since it is rendered with grave abuse of discretion.
WHEREFORE, the petition is GRANTED. The Decision of
the Court of Appeals of 24 November 1997 sustaining the
trial court's denial of petitioner's motion to dismiss, as well as
its Resolution dated 13 January 1998 denying
reconsideration, is REVERSED and SET ASIDE. The
petition for mandamus filed by respondent before the court a
quo to compel petitioner to furnish her a copy of the DECS
Investigation Committee Report is DISMISSED for want of
cause of action.1wphi1.nt
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
Adm. Case No. 6475 January 30, 2013
FE A. YLAYA, Complainant,
vs.
ATTY. GLENN CARLOS GACOTT, Respondent.
DECISION
BRION, J.:
For the Court's consideration is the disbarment complaint1
tiled by Fe A. Ylaya (complainant) against Atty. Glenn Carlos
Gacott (respondent) who allegedly deceived the complainant
and her late husband, Laurentino L. Ylaya, into signing a
"preparatory" Deed of Sale that the respondent converted
into a Deed of Absolute Sale in favor of his relatives.
After the submission of the respondent's comment to the
complaint, the Court referred the complaint to the
Commission on Bar Discipline ofthe Integrated Bar of the
Philippines (IBP) for investigation, evaluation and
recommendation.
The complainant alleged that she and her late husband are
the registered owners of two (2) parcels of land covered by
Transfer Certificate of Title ( TCT) Nos. 162632 and 162633
located at Barangay Sta. Lourdes, Puerto Princesa City.
Prior to the acquisition of these properties, TCT No. 162632
(property) was already the subject of expropriation
proceedings filed by the City Government of Puerto Princesa
(City Government) on May 23, 1996 against its former
registered owner, Cirilo Arellano. The expropriation case was
filed with the Regional Trial Court (RTC) of Palawan and
Puerto Princesa, Branch 95, and was docketed as Civil Case
No. 2902. The RTC already fixed the price and issued an
order for the City Government to deposit P6,000,000.00 as
just compensation for the property.2
The respondent briefly represented the complainant and her
late husband in the expropriation case as intervenors for
being the new registered owners of the property. The
complainant alleged that the respondent convinced them to
sign a "preparatory deed of sale" for the sale of the property,
but he left blank the space for the name of the buyer and for
the amount of consideration. The respondent further alleged
that the deed would be used in the sale to the City
Government when the RTC issues the order to transfer the
titles.3 The respondent then fraudulently without their
knowledge and consent, and contrary to their understanding
converted the "preparatory deed of sale" into a Deed of
Absolute Sale dated June 4, 2001,4 selling the subject
property to Reynold So and Sylvia Carlos So for
P200,000.00.5
The complainant denied that she and Laurentino were paid
the P200,000.00 purchase price or that they would sell the
property "for such a measly sum" when they stood to get at
least P6,000,000.00 as just compensation.6
The complainant also claimed that the respondent notarized
the Deed of Absolute Sale dated June 4, 2001 even though
Reynold and Sylvia (his mothers sister) are his uncle and
his aunt, respectively.7
The respondent denied all the allegations in the complaint.8
The respondent argued that the complainants greed to get
the just Compensation9 caused her to file this "baseless,
unfounded and malicious" disbarment case.10 He claimed
that the sale was their voluntary transaction and that he
"simply ratified the document."11 He also claimed that
Reynold and Laurentino had originally jointly purchased the
properties from Cirilo Arellano on July 10, 2000; that they
were co-owners for some time; and that Laurentino
subsequently sold his share to Reynold under a Deed of
Absolute Sale dated June 4, 2001.12
The respondent specifically denied asking the complainant
and her late husband to execute any "preparatory deed of
sale" in favor of the City Government.13 He also denied that
the Deed of Absolute Sale contained blanks when they
signed it.14 That he filed for the spouses Ylaya and Reynold
an opposition to the just compensation the RTC fixed proved
that there was no agreement to use the document for the
expropriation case.15 He also argued that it was clear from
the document that the intended buyer was a natural person,
not a juridical person, because there were spaces for the
buyers legal age, marital status, and citizenship,16 and he
was even constrained to file a subsequent Motion to
Intervene on behalf of Reynold because the complainant
"maliciously retained" the TCTs to the subject properties after
borrowing them from his office.17 Lastly, he denied violating
the Rules on Notarial Practice.18
On September 4, 2006, the respondent filed a Motion to
Resolve or Decide the Case dated August 24, 2006 praying
for the early resolution of the complaint.19
On December 5, 2006, the complainant filed an Ex Parte
Motion to Withdraw the Verified Complaint and To Dismiss
the Case dated November 14, 2006.20
On February 28, 2008, the complainant executed an
Affidavit21 affirming and confirming the existence,
genuineness and due execution of the Deed of Absolute
Sale notarized on March 6, 2000;22 the Memorandum of
Agreement (MOA) dated April 19, 2000;23 and the Deed of
Absolute Sale notarized in 2001.24 The respondent
submitted this Affidavit to the IBP as an attachment to his
Motion for Reconsideration of April 21, 2008.25
The IBPs Findings
In her Report and Recommendation dated November 19,
2007, IBP Commissioner Anna Caridad Sazon-Dupaya
found the respondent administratively liable for violating
Canon 1, Rule 1.01 (A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct) and Canon 16 ("A
lawyer shall hold in trust all moneys and properties of his
client that may come into his possession) of the Code of
Professional Responsibility, and Section 3(c), Rule IV of A.M.
No. 02-8-13-SC (2004 Rules on Notarial Practice).26 She
recommended his suspension from the practice of law for a
period of six (6) months.27
In its Resolution No. XVIII-2007-30228 dated December 14,
2007, the IBP Board of Governors adopted the IBP
Commissioners finding, but increased the penalty imposed
to two (2) years suspension and a warning:
RESOLVED to ADOPT and APPROVE, as it is hereby
unanimously ADOPTED and APPROVED, with modification,
the Report and Recommendation of the Investigating
Commissioner [in] the above-entitled case, herein made part
of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on record
and the applicable laws and rules, and considering
respondents violations of Canon 1, [Rule] 1.01 and Canon
16 of the Code of Professional Responsibility and Rule IV,
Sec. 39(c) of A.M. No. 02-8-13-SC (2004 Rules on Notarial
Practice), Atty. Glenn Carlos Gacott is hereby SUSPENDED
from practice of law for two (2) years with a Warning that
commission of a similar offense will be dealt with more
severely. [emphases supplied]
On May 8, 2008, the respondent filed a Motion for
Reconsideration dated April 21, 2008, attaching, among
others, a copy of the complainants Affidavit dated February
27, 2008, admitting the existence, genuineness and due
execution of the Deed of Absolute Sale between Cirilo and
Laurentino; the MOA between Laurentino and Reynold; the
Deed of Absolute Sale between Laurentino and Reynold;
and the Compromise Agreement between Reynold and the
complainant dated November 14, 2006 for the expropriation
case.29
On September 4, 2008, the respondent filed a Manifestation
with the Supreme Court, requesting that the IBP be directed
to resolve his Motion for Reconsideration.30
By Resolution No. XIX-2010-545 dated October 8, 2010,31
the IBP Board of Governors denied the respondents Motion
for Reconsideration for failing to raise any new substantial
matter or any cogent reason to warrant a reversal or even a
modification of its Resolution No. XVIII-2007-302.32
On March 14, 2012, the respondent filed a Petition for
Review (on appeal) assailing the IBPs findings, as
follows:33
a) In conveniently concluding that the Deed of Absolute Sale
was pre-signed and fraudulently notarized without requiring
Fe Ylaya to adduce evidence in a formal hearing thus,
violated the respondents right to due process as he was not
able to cross-examine her. This is not to mention that the
complainant failed to offer corroborative proof to prove her
bare allegations;
b) In sweepingly and arbitrarily disregarded/skirted (sic) the
public documents (MOA and 2 other DOAS) duly executed
by the parties therein and notarized by the respondent;
c) In totally ignoring the complainants Affidavit admitting the
genuineness and due execution of the Deed of Absolute
Sale in issue;
d) In arbitrarily concluding the absence of co-ownership by
Reynold So and Fe Ylaya of the subject lots despite the
existence of a notarized MOA clearly showing the co-
ownership of Ylaya and So; and
e) In finding the respondent/appellants act of notarizing the
DOAS as contrary to the notarial rules.
The Issues
From the assigned errors, the complainant poses the
following issues:
(1) whether the IBP violated the respondents right to due
process; and
(2) whether the evidence presented supports a finding that
the respondent is administratively liable for violating Canon
1, Rule 1.01 and Canon 16 of the Code of Professional
Responsibility, and Section 3(c), Rule IV of A.M. No. 02-8-
13-SC.
The Courts Ruling
We set aside the findings and recommendations of the IBP
Commissioner and those of the IBP Board of Governors
finding the respondent liable for violating Canon 1, Rules
1.01 and Section 3(c), Rule IV of A.M. No. 02-8-13-SC.34
We however hold the respondent liable for violating Canon
16 of the Code of Professional Responsibility for being
remiss in his obligation to hold in trust his clients properties.
We likewise find him liable for violation of (1) Canon 15, Rule
15.03 for representing conflicting interests without the written
consent of the represented parties, thus, violating the rule on
conflict of interests; and (2) Canon 18, Rule 18.03 for
neglecting a legal matter entrusted to him.
a. Due process violation
The most basic tenet of due process is the right to be heard.
Denial of due process means the total lack of opportunity to
be heard or to have ones day in court. As a rule, no denial of
due process takes place where a party has been given an
opportunity to be heard and to present his case;35 what is
prohibited is the absolute lack of opportunity to be heard.
The respondent claims that the IBP violated his right to due
process because he was not given the "amplest opportunity
to defend himself, to cross examine the witness complainant,
to object to the admissibility of documents or present
controverting evidence"36 when the IBP rendered its
conclusion without requiring the complainant to adduce
evidence in a formal hearing and despite the absence of
corroborative proof. He insists that these defects rendered
the complainants allegations as hearsay, and the IBPs
report, recommendation or resolution null and void.
Although the respondent failed to have a face-to-face
confrontation with the complainant when she failed to appear
at the required mandatory conference on October 6, 2005,37
the records reveal that the respondent fully participated
during the entire proceedings and submitted numerous
pleadings, including evidence, before the IBP. He was even
allowed to file a motion for reconsideration supported by his
submitted evidence, which motion the IBP considered and
ruled upon in its Resolution No. XIX-2010-545 dated October
8, 2010.38
In Alliance of Democratic Free Labor Organization v.
Laguesma,39 we held that due process, as applied to
administrative proceedings, is the opportunity to explain
ones side. In Samalio v. Court of Appeals,40 due process in
an administrative context does not require trial-type
proceedings similar to those in courts of justice. Where the
opportunity to be heard, either through oral arguments or
through pleadings, is accorded, no denial of procedural due
process takes place. The requirements of due process are
satisfied where the parties are afforded a fair and reasonable
opportunity to explain their side of the controversy at hand.
Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the
President,41 we held that "due process, as a constitutional
precept, does not always, and in all situations, require a trial-
type proceeding. Litigants may be heard through pleadings,
written explanations, position papers, memoranda or oral
arguments. The standard of due process that must be met in
administrative tribunals allows a certain degree of latitude[,
provided that] fairness is not ignored. It is, therefore, not
legally objectionable for being violative of due process, for
an administrative agency to resolve a case based solely on
position papers, affidavits or documentary evidence
submitted by the parties."42
In this case, the respondents failure to cross-examine the
complainant is not a sufficient ground to support the claim
that he had not been afforded due process. The respondent
was heard through his pleadings, his submission of alleged
controverting evidence, and his oral testimony during the
October 6, 2005 mandatory conference. These pleadings,
evidence and testimony were received and considered by
the IBP Commissioner when she arrived at her findings and
recommendation, and were the bases for the IBP Boards
Resolution.
Moreover, "any seeming defect in the observance of due
process is cured by the filing of a motion for reconsideration.
A denia of due process cannot be successfully invoked by a
party who has had the opportunity to be heard on his motion
for reconsideration. Undoubtedly in this case, the
requirement of the law was afforded to the respondent."43
We also note that the respondent, on a Motion to Resolve or
Decide the Case dated August 24, 2006, submitted his case
to the IBP for its resolution without any further hearings. The
motion, filed almost one year after the mandatory conference
on October 6, 2005, significantly did not contain any
statement regarding a denial of due process. In effect, the
respondent himself waived his cross-examination of the
complainant when he asked the IBP Board of Governors to
resolve the case based on the pleadings and the evidence
on record. To quote his own submission:
1. On June 30, 2004, a complaint was filed in this case;
2. On October 19, 2004, the respondent filed his comment
with all its attachments denying all the allegations in the
complaint;
3. On June 23, 2005, the respondent filed his position paper.
On April 28, 2006, the respondent also filed his supplemental
position paper. By contrast, up to this date, the
complainant/petitioner has not filed her verified position
paper thus, waived her right to file the same;
4. There being no other genuine issues to be heard in this
case as all the defenses and counter-arguments are
supported by documentary evidence, it is most respectfully
prayed that the instant case be resolved on its merits or be
ordered dismissed for lack of merit without further hearing;
5. Further, considering that there is an on-going case in
Branch 52 of the Regional Trial Court of Palawan in Civil
Case No. 2902 for Expropriation involving the same property,
and such fact was deliberately omitted by the complainant in
her Verified Complaint as shown in the certification of non-
forum shopping, the outright dismissal of this case is
warranted, hence, this motion; and
6. This is meant to expedite the termination of this case.44
(underscore ours; italics supplied)
Finally, we note Section 11, Rule 139-B of the Rules of Court
which provides that:
No defect in a complaint, notice, answer, or in the
proceeding or the Investigators Report shall be considered
as substantial unless the Board of Governors, upon
considering the whole record, finds that such defect has
resulted or may result in a miscarriage of justice, in which
event the
Board shall take such remedial action as the circumstances
may warrant, including invalidation of the entire proceedings.
In this case, the IBP Commissioners findings were twice
reviewed by the IBP Board of Governors the first review
resulted in Resolution No. XVIII-2007-30245 dated
December 14, 2007, affirming the IBP Commissioners
findings, but modifying the penalty; the second review
resulted in Resolution No. XIX-2010-545 dated October 8,
2010,46 denying the respondents motion for
reconsideration. In both instances, the IBP Board of
Governors found no defect or miscarriage of justice
warranting a remedial action or the invalidation of the
proceedings.
We emphasize that disciplinary proceedings against lawyers
are sui generis in that they are neither purely civil nor purely
criminal; they involve investigations by the Court into the
conduct of one of its officers,47 not the trial of an action or a
suit.
Disciplinary proceedings against lawyers are sui generis.
Neither purely civil nor purely criminal, they do not involve a
trial of an action or a suit, but is rather an investigation by the
Court into the conduct of one of its officers. Not being
intended to inflict punishment, it is in no sense a criminal
prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. It may be initiated by the Court motu
proprio. Public interest is its primary objective, and the real
question for determination is whether or not the attorney is
still a fit person to be allowed the privileges as such. Hence,
in the exercise of its disciplinary powers, the Court merely
calls upon a member of the Bar to account for his actuations
as an officer of the Court with the end in view of preserving
the purity of the legal profession and the proper and honest
administration of justice by purging the profession of
members who by their misconduct have proved themselves
no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such
posture, there can thus be no occasion to speak of a
complainant or a prosecutor. [emphases deleted]
The complainant in disbarment cases is not a direct party to
the case but a witness who brought the matter to the
attention of the Court.48 Flowing from its sui generis
character, it is not mandatory to have a formal hearing in
which the complainant must adduce evidence.
From all these, we find it clear that the complainant is not
indispensable to the disciplinary proceedings and her failure
to appear for cross-examination or to provide corroborative
evidence of her allegations is of no merit. What is important
is whether, upon due investigation, the IBP
Board of Governors finds sufficient evidence of the
respondents misconduct to warrant the exercise of its
disciplinary powers.
b. Merits of the Complaint
"In administrative cases against lawyers, the quantum of
proof required is preponderance of evidence which the
complainant has the burden to discharge."49 Preponderance
of evidence means that the evidence adduced by one side
is, as a whole, superior to or has a greater weight than that
of the other. It means evidence which is more convincing to
the court as worthy of belief compared to the presented
contrary evidence.
Under Section 1, Rule 133 of the Rules of Court, in
determining whether preponderance of evidence exists, the
court may consider the following: (a) all the facts and
circumstances of the case; (b) the witnesses manner of
testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of
the facts to which they testify, and the probability or
improbability of their testimony; (c) the witnesses interest or
want of interest, and also their personal credibility so far as
the same may ultimately appear in the trial; and (d) the
number of witnesses, although it does not mean that
preponderance is necessarily with the greater number.50 By
law, a lawyer enjoys the legal presumption that he is
innocent of the charges against him until the contrary is
proven, and that as an officer of the court, he is presumed to
have performed his duties in accordance with his oath.51
The IBP Commissioner set out her findings as follows:
The undersigned, after a careful evaluation of the evidence
presented by both parties, finds that the charges of the
complainant against the respondent are worthy of belief
based on the following:
First, the allegation of the respondent that Reynold So was
actually co-owner of spouses Ylanas (sic) in the properties
subject of the Deed of Sale between Felix Arellano and
Spouses Ylanas (sic) is hard to believe despite the
presentation of the Memorandum of Agreement.
It is elementary in Rules of Evidence that when the contents
of a written document are put in issue, the best evidence
would be the document itself. In the Deed of Sale between
Felix Arellano and Spouses Ylanas (sic), the buyer of the
subject properties is only Laurentino L. Ylaya married to Fe
A. Ylaya. The document does not state that Reynold So was
likewise a buyer together with Laurentino Ylaya, or that the
former paid half of the purchase price.
Also, it is hard for this Commission to believe that Reynold
So, assisted by a lawyer at that and who allegedly paid half
of the purchase price, would not insist for the inclusion of his
name in the Deed of Sale as well as the Transfer Certificate
of Title subsequently issued.
The Memorandum of Agreement between the spouses Ylaya
and Reynold So produced by the respondent cannot
overturn the belief of this Commission considering that the
Memorandum of Agreement was executed more than a
month AFTER the Deed of Sale between Felix Arellano and
the Ylayas was notarized. This is not to mention the fact that
the complainant denied ever having executed the
Memorandum of Agreement. A close examination of the
signatories in the said Memorandum of Agreement would
reveal that indeed, the alleged signatures of the complainant
and her husband are not the same with their signatures in
other documents.
Assuming, for the sake of argument, that the Memorandum
of Agreement is valid, thereby making Laurentino Ylaya and
co-owner Reynold So co-owners of the subject properties
(Please see Annex "B" of respondents Comment), this
Commission finds it hard to believe Laurentino Ylaya would
sell it to Reynold So for P200,000 x x x when his minimum
expenses for the purchase thereof is already P225,000.00
and he was expecting to receive P7,000,000.00, more or
less. That would mean that if Reynold So and the
complainant were co-owners, the P7,000,000.00 would then
be equally divided among them at P3,500,000.00 each, far
above the P200,000.00 selling price reflected in the pre-
signed Deed of Sale.
As to the second issue, this Commission believes that the
respondent committed serious error in notarizing the Deed of
Sale and the Memorandum of Agreement between his uncle
Reynold So and Laurentino Ylaya based on Rule IV, Section
3 (c) of A.M. No. 02-8-13-SC which provides as follows:

"Sec. 3. Disqualifications a notary public is disqualified
from performing a notarial act if he:
(a) x x x.
(b) x x x.
(c) is a spouse, common-law partner, ancestor, descendant,
or relative by affinity or consanguinity of the principal within
the fourth civil degree."
The defense therefore of the respondent that he did not
violate the aforementioned Rule becausehis uncle Reynold
So, the buyer is not the principal in the Subject Deed of Sale
but the seller Laurentino Ylaya (please see page 3 of the
respondents Supplemental Position Paper) is misplaced.
Clearly, both the buyer and the seller in the instant case are
considered principals in the contract entered into.
Furthermore, if we are to consider the argument of the
respondent that his uncle was not a principal so as to apply
the afore-quoted provision of the Rules, the respondent still
violated the Rules when he notarized the subject
Memorandum of Agreement between Laurentino Ylaya and
his uncle Reynold So. Clearly, both complainant and
Reynold So were principal parties in the said Memorandum
of Agreement.52
The respondent argues that the IBP Commissioners findings
are contrary to the presented evidence, specifically to the
MOA executed by Laurentino and Reynold acknowledging
the existence of a co-ownership;53 to the complainants Ex
Parte Motion to Withdraw the Verified Complaint and To
Dismiss the Case dated November 14, 2006 where she
stated that the parties have entered into a compromise
agreement in Civil Case No. 2902, and that the disbarment
complaint arose from a misunderstanding,
miscommunication and improper appreciation of facts;54 to
her Affidavit dated February 27, 200855 affirming and
confirming the existence, genuineness and due execution of
the Deed of Absolute Sale notarized on March 6, 2000;56
and to the Deed of Absolute Sale notarized in 2001.57
In all, the respondent claims that these cited pieces of
evidence prove that this administrative complaint against him
is fabricated, false and untrue. He also points to Atty. Robert
Peneyra, the complainants counsel in this administrative
case, as the hand behind the complaint.58 According to the
respondent, Atty. Peneyra harbors ill-will against him and his
family after his father filed several administrative cases
against Atty. Peneyra, one of which resulted in the imposition
of a warning and a reprimand on Atty. Peneyra.59
Reynold, in his Affidavit dated October 11, 2004, confirms
that there was a co-ownership between him and Laurentino;
that Laurentino decided to sell his half of the property to
Reynold because he (Laurentino) had been sickly and in dire
need of money to pay for his medical bills; that Laurentino
agreed to the price of P200,000.00 as this was almost the
same value of his investment when he and Reynold jointly
acquired the property; and that the sale to Reynold was with
the agreement and consent of the complainant who
voluntarily signed the Deed of Sale.60
After examining the whole record of the case, we agree with
the respondent and find the evidence insufficient to prove
the charge that he violated Canon 1, Rule 1.01 of the Code
of Professional Responsibility and Section 3(c), Rule IV of
A.M. No. 02-8-13-SC. Specifically, (1) the evidence against
the respondent fails to show the alleged fraudulent and
deceitful acts he has taken to mislead the complainant and
her husband into signing a "preparatory deed of sale" and
the conversion into a Deed of Absolute Sale dated June 4,
2001 in favor of Reynold; and (2) no prohibition exists
against the notarization of a document in which any of the
parties interested is the notarys relative within the 4th civil
degree, by affinity or consanguinity, at that time the
respondent notarized the documents.
In her Report and Recommendation,61 the IBP
Commissioner concluded that the respondent is liable for
deceit and fraud because he failed to prove the existence of
a co-ownership between Laurentino and Reynold; in her
opinion, the signatures of the complainant and of her
husband on the MOA "are not the same with their signatures
in other documents."62
We do not agree with this finding. While the facts of this case
may raise some questions regarding the respondents legal
practice, we nevertheless found nothing constituting clear
evidence of the respondents specific acts of fraud and
deceit. His failure to prove the existence of a co-ownership
does not lead us to the conclusion that the MOA and the
Deed of Absolute Sale dated June 4, 2001 are spurious and
that the respondent was responsible for creating these
spurious documents. We are further persuaded, after noting
that in disregarding the MOA, the IBP Commissioner failed
to specify what differences she observed in the spouses
Ylayas signatures in the MOA and what documents were
used in comparison.
Apart from her allegations, the complainants pieces of
evidence consist of TCT Nos. 162632 and 162633;63 her
Motion for Leave to Intervene in Civil Case No. 2902 dated
May 17, 2000;64 the RTC order in Civil Case No. 2902
dated November 6, 2000 fixing the price of just
compensation;65 the Deed of Absolute Sale dated June 4,
2001;66 the spouses Ylayas Verified Manifestation dated
September 2, 2002, filed with the RTC in Civil Case No.
2902, assailing the Motion to Deposit Just Compensation
filed by the respondent on behalf of Reynold and manifesting
the sale between Laurentino and Reynold;67 the Provincial
Prosecutors Subpoena to the complainant in connection
with the respondents complaint for libel;68 the respondents
complaint for libel against the complainant dated August 27,
2003;69 the complainants Counter Affidavit dated March 26,
2004 against the charge of libel;70 and the respondents
letter to the Provincial Attorney of Palawan dated April 5,
2004, requesting for "official information regarding the actual
attendance of Atty. ROBERT Y. PENEYRA" at an MCLE
seminar.71
We do not see these documentary pieces of evidence as
proof of specific acts constituting deceit or fraud on the
respondents part. The documents by themselves are neutral
and, at the most, show the breakdown of the attorney-client
relationship between the respondent and the complainant. It
is one thing to allege deceit and misconduct, and it is
another to demonstrate by evidence the specific acts
constituting these allegations.72
We reiterate that in disbarment proceedings, the burden of
proof is on the complainant; the Court exercises its
disciplinary power only if the complainant establishes her
case by clear, convincing, and satisfactory evidence.73
Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has a
greater weight than that of the other party. When the pieces
of evidence of the parties are evenly balanced or when
doubt exists on the preponderance of evidence, the
equipoise rule dictates that the decision be against the party
carrying the burden of proof.74
In this case, we find that the complainants evidence and the
records of the case do not show the respondents deliberate
fraudulent and deceitful acts. In the absence of such proof,
the complaint for fraud and deceit under Canon 1, Rule 1.01
of the Code of Professional Responsibility must perforce be
dismissed.
We note that the respondent has not squarely addressed the
issue of his relationship with Reynold, whom the complainant
alleges to be the respondents uncle because Reynold is
married to the respondents maternal aunt.75 However, this
is of no moment as the respondent cannot be held liable for
violating Section 3(c), Rule IV of A.M. No. 02-8-13-SC
because the Deed of Absolute Sale dated June 4, 200176
and the MOA dated April 19, 200077 were notarized by the
respondent prior to the effectivity of A.M. No. 02-8-13-SC on
July 6, 2004. The notarial law in force in the years 2000 -
2001 was Chapter 11 of Act No. 2711 (the Revised
Administrative Code of 1917) which did not contain the
present prohibition against notarizing documents where the
parties are related to the notary public within the 4th civil
degree, by affinity or consanguinity. Thus, we must likewise
dismiss the charge for violation of A.M. No. 02-8-13-SC.
c. Liability under Canons 15, 16 and 18 We find the
respondent liable under Canon 15, Rule 15.03 for
representing conflicting interests without the written consent
of all concerned, particularly the complainant; under Canon
16 for being remiss in his obligation to hold in trust his
clients properties; and under Canon 18, Rule 18.03 for
neglecting a legal matter entrusted to him.
Canon 15, Rule 15.03 states:
A lawyer shall not represent conflicting interests except by
written consent of all concerned given after a full disclosure
of the facts. [emphasis ours]
The relationship between a lawyer and his client should
ideally be imbued with the highest level of trust and
confidence. Necessity and public interest require that this be
so. Part of the lawyers duty to his client is to avoid
representing conflicting interests. He is duty bound to decline
professional employment, no matter how attractive the fee
offered may be, if its acceptance involves a violation of the
proscription against conflict of interest, or any of the rules of
professional conduct. Thus, a lawyer may not accept a
retainer from a defendant after he has given professional
advice to the plaintiff concerning his claim; nor can he accept
employment from another in a matter adversely affecting any
interest of his former client. It is his duty to decline
employment in any of these and similar circumstances in
view of the rule prohibiting representation of conflicting
interests.78
The proscription against representation of conflicting interest
applies "even if the lawyer would not be called upon to
contend for one client that which the lawyer has to oppose
for the other, or that there would be no occasion to use the
confidential information acquired from one to the
disadvantage of the other as the two actions are wholly
unrelated."79 The sole exception is provided in Canon 15,
Rule 15.03 of the Code of Professional Responsibility if
there is a written consent from all the parties after full
disclosure.
Based on the records, we find substantial evidence to hold
the respondent liable for violating Canon 15, Rule 15.03 of
the Code of Professional Responsibility. The facts of this
case show that the respondent retained clients who had
close dealings with each other. The respondent admits to
acting as legal counsel for Cirilo Arellano, the spouses Ylaya
and Reynold at one point during the proceedings in Civil
Case No. 2902.80 Subsequently, he represented only
Reynold in the same proceedings,81 asserting Reynolds
ownership over the property against all other claims,
including that of the spouses Ylaya.82
We find no record of any written consent from any of the
parties involved and we cannot give the respondent the
benefit of the doubt in this regard. We find it clear from the
facts of this case that the respondent retained Reynold as
his client and actively opposed the interests of his former
client, the complainant. He thus violated Canon 15, Rule
15.03 of the Code of Professional Responsibility.
We affirm the IBP Commissioners finding that the
respondent violated Canon 16. The respondent admits to
losing certificates of land titles that were entrusted to his
care by Reynold.83 According to the respondent, the
complainant "maliciously retained" the TCTs over the
properties sold by Laurentino to Reynold after she borrowed
them from his office.84 Reynold confirms that the TCTs were
taken by the complainant from the respondents law office.85
The respondent is reminded that his duty under Canon 16 is
to "hold in trust all moneys and properties of his client that
may come into his possession." Allowing a party to take the
original TCTs of properties owned by another an act that
could result in damage should merit a finding of legal
malpractice. While we note that it was his legal staff who
allowed the complainant to borrow the TCTs and it does not
appear that the respondent was aware or present when the
complainant borrowed the TCTs,86 we nevertheless hold the
respondent liable, as the TCTs were entrusted to his care
and custody; he failed to exercise due diligence in caring for
his clients properties that were in his custody.
We likewise find the respondent liable for violating Canon 18,
Rule 18.03 for neglecting a legal matter entrusted to him.
Despite the respondents admission that he represented the
complainant and her late husband in Civil Case No. 2902
and that he purportedly filed a Motion for Leave to Intervene
in their behalf, the records show that he never filed such a
motion for the spouses Ylaya. The complainant herself
states that she and her late husband were forced to file the
Motion for Leave to Intervene on their own behalf. The
records of the case, which include the Motion for Leave to
Intervene filed by the spouses Ylaya, support this
conclusion.87
Canon 18, Rule 18.03 requires that a lawyer "shall not
neglect a legal matter entrusted to him, and his negligence in
connection [therewith] shall render him liable." What
amounts to carelessness or negligence in a lawyers
discharge of his duty to his client is incapable of an exact
formulation, but the Court has consistently held that the
mere failure of a lawyer to perform the obligations due his
client is per se a violation.88
In Canoy v. Ortiz,89 we held that a lawyers failure to file a
position paper was per se a violation of Rule 18.03 of the
Code of Professional Responsibility. Similar to Canoy, the
respondent clearly failed in this case in his duty to his client
when, without any explanation, he failed to file the Motion for
Leave to Intervene on behalf of the spouses Ylaya. Under
the circumstances, we find that there was want of diligence;
without sufficient justification, this is sufficient to hold the
respondent liable for violating Canon 18, Rule 18.03 of the
Code of Professional Responsibility.
d. The Complainants Ex Parte Motion to Withdraw the
Verified Complaint and to Dismiss the Case and her Affidavit
We are aware of the complainants Ex Parte Motion to
Withdraw the Verified Complaint and To Dismiss the Case
dated November 14, 200690 and her Affidavit91 affirming
and confirming the existence, genuineness and due
execution of the Deed of Absolute Sale notarized on March
6, 2000.92 The complainant explains that the parties have
entered into a compromise agreement in Civil Case No.
2902, and that this disbarment complaint was filed because
of a "misunderstanding, miscommunication and improper
appreciation of facts";93 she erroneously accused the
respondent of ill motives and bad intentions, but after being
enlightened, she is convinced that he has no personal or
pecuniary interests over the properties in Civil Case No.
2902; that such misunderstanding was due to her
unfamiliarity with the transactions of her late husband during
his lifetime.94 The complainant now pleads for the
respondents forgiveness, stating that he has been her and
her late husbands lawyer for over a decade and affirms her
trust and confidence in him.95 We take note that under their
Compromise Agreement dated November 14, 2006 for the
expropriation case,96 the complainant and Reynold equally
share the just compensation, which have since increased to
P10,000,000.00.
While the submitted Ex Parte Motion to Withdraw the
Verified Complaint and to Dismiss the Case and the Affidavit
appear to exonerate the respondent, complete exoneration
is not the necessary legal effect as the submitted motion and
affidavit are immaterial for purposes of the present
proceedings. Section 5, Rule 139-B of the Rules of Court
states that, "No investigation shall be interrupted or
terminated by reason of the desistance, settlement,
compromise, restitution, withdrawal of charges, or failure of
the complainant to prosecute the same."
In Angalan v. Delante,97 despite the Affidavit of Desistance,
we disbarred the respondent therein for taking advantage of
his clients and for transferring the title of their property to his
name. In Bautista v. Bernabe,98 we revoked the lawyers
notarial commission, disqualified him from reappointment as
a notary public for two years, and suspended him from the
practice of law for one year for notarizing a document
without requiring the affiant to personally appear before him.
In this cited case, we said:
Complainants desistance or withdrawal of the complaint
does not exonerate respondent or put an end to the
administrative proceedings. A case of suspension or
disbarment may proceed regardless of interest or lack of
interest of the complainant. What matters is whether, on the
basis of the facts borne out by the record, the charge of
deceit and grossly immoral conduct has been proven. This
rule is premised on the nature of disciplinary proceedings. A
proceeding for suspension or disbarment is not a civil action
where the complainant is a plaintiff and the respondent
lawyer is a defendant. Disciplinary proceedings involve no
private interest and afford no redress for private grievance.
They are undertaken and prosecuted solely for the public
welfare. They are undertaken for the purpose of preserving
courts of justice from the official ministration of persons unfit
to practice in them. The attorney is called to answer to the
court for his conduct as an officer of the court. The
complainant or the person who called the attention of the
court to the attorneys alleged misconduct is in no sense a
party, and has generally no interest in the outcome except as
all good citizens may have in the proper administration of
justice.99
In sum, in administrative proceedings against lawyers, the
complainants desistance or withdrawal does not terminate
the proceedings. This is particularly true in the present case
where pecuniary consideration has been given to the
complainant as a consideration for her desistance. We note
in this regard that she would receive P5,000,000.00, or half
of the just compensation under the Compromise
Agreement,100 and thus agreed to withdraw all charges
against the respondent.101 From this perspective, we
consider the complainants desistance to be suspect; it is not
grounded on the fact that the respondent did not commit any
actual misconduct; rather, because of the consideration, the
complainant is now amenable to the position of the
respondent and/or Reynold.
e. Procedural aspect
We remind all parties that resolutions from the IBP Board of
Governors are merely recommendatory and do not attain
finality without a final action from this Court. Section 12, Rule
139-B is clear on this point that:
Section 12. Review and decision by the Board of Governors.
xxxx
(b) If the Board, by the vote of a majority of its total
membership, determines that the respondent should be
suspended from the practice of law or disbarred, it shall
issue a resolution setting forth its findings and
recommendations which, together with the whole record of
the case, shall forthwith be transmitted to the Supreme Court
for final action.1wphi1
The Supreme Court exercises exclusive jurisdiction to
regulate the practice of law.102 It exercises such disciplinary
functions through the IBP, but it does not relinquish its duty
to form its own judgment. Disbarment proceedings are
exercised under the sole jurisdiction of the Supreme Court,
and the IBPs recommendations imposing the penalty of
suspension from the practice of law or disbarment are
always subject to this Courts review and approval.
The Penalty
In Solidon v. Macalalad,103 we imposed the penalty of
suspension of six ( 6) months from the practice of law on the
respondent therein for his violation of Canon 18, Rule 18.03
and Canon 16, Rule 16.01 of the Code of Professional
Responsibility. In Josefina M. Anion v. Atty. Clemencio
Sabitsana, Jr.,104 we suspended the respondent therein
from the practice of law for one (1) year, for violating Canon
15, Rule 15.03 of the Code of Professional Responsibility.
Under the circumstances, we find a one (1) year suspension
to be a sufficient and appropriate sanction against the
respondent.
WHEREFORE, premises considered, we set aside
Resolution No. XVIII-.2007-302 dated December 14, 2007
and Resolution No. XIX-2010-545 dated October 8, 2010 of
the IBP Board of Governors, and find respondent Atty. Glenn
Carlos Gacott GUILTY of violating Rule 15.03 of Canon 15,
Canon 16, and Rule 18.03 of Canon 18 of the Code of
Professional Responsibility. As a penalty, he is SUSPENDED
from the practice of law for one (1) year, with a WARNING
that a repetition of the same or similar act will be dealt with
more severely.
SO ORDERED.
THIRD DIVISION
MARGIE CORPUS MACIAS,
Complainant,
- versus -
MARIANO JOAQUIN S. MACIAS, Presiding Judge, Branch
28, Regional Trial Court, Liloy, Zamboanga del Norte,
Respondent.
A.M. No. RTJ-01-1650
(Formerly OCA IPI No. 01-1195-RTJ)
Present:
YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.
Promulgated:
September 29, 2009
x-------------------------------------------------------------------------------
-----x
DECISION
NACHURA, J.:
This involves an administrative complaint[1] filed by
complainant Margie C. Macias charging her husband,
Mariano Joaquin S. Macias (Judge Macias), with immorality
and conduct prejudicial to the best interest of the service.
The complaint was filed on March 7, 2001, when respondent
was still sitting as the presiding judge of Branch 28 of the
Regional Trial Court (RTC) of Liloy, Zamboanga del Norte.
Complainant alleged that sometime in 1998, respondent
engaged in an illicit liaison and immoral relationship with a
certain Judilyn Seranillos (Seranillos), single and in her early
20s. The relationship continued until the time of the filing of
the complaint. Complainant enumerated some of the abuses
committed by respondent, to wit:
(a) [Respondent] has been using court personnel,
namely, Emmanuel Botiong Tenefrancia, process server, as
constant escort of his paramour in going to their appointed
trysts or in escorting back said woman to the place where
she is staying, and as errand boy seeing to their needs when
respondent and his mistress are together;
(b) Respondent has been using another court
employee in the person of Camilo Bandivas, court sheriff, as
contact person to his young lover and in summoning and
bringing complainants witnesses to respondent to be
harassed and threatened;
(c) Said Judilyn Seranillos, respondents lover, has
been brought many times by respondent to his court in Liloy,
Zamboanga del Norte, thereby scandalizing court personnel
and lawyers, who sometimes must wait for the session to
start because respondent and his mistress are not yet
through with each other; That the scandalous relations of
respondent with his mistress is an open secret among
lawyers, court personnel and litigants [in] Liloy, Zamboanga
del Norte;
(d) Respondent has not been calendaring (sic)
cases nor holding court sessions nor court hearings on
Mondays and Fridays so that he can have an extended date
with his paramour, to the great prejudice of public service;
(e) Respondent and his paramour had often met at
the house of Zoosima (sic) Ojano Carangan, aunt of
respondents paramour, [in] Taway, Ipil, Zamboanga del Sur,
and the people of Taway know that respondent judge, who
usually arrives in his car, has been shamelessly and
immorally carrying on an illicit affair with said Judilyn
Seranillos. Some inquisitive people usually go out of their
houses upon seeing respondents car parked at the house of
the aunt of respondents young mistress, and these barrio
folks often watch respondent come and go; [and]
(f) Respondent has one or two other women lovers
whom he shamelessly cavorts even in the presence of court
personnel.[2]
Complainant attached the affidavits of Shem Tabotabo,[3]
Zacarias Cordova,[4] Zosima Carangan,[5] Danny Layogue
and Consolacion S. Layogue,[6] her son Marictibert Corpus
Macias,[7] Ruben Perater,[8] Roel Mutia,[9] and Aniceto
Zozobrado.[10] However, five of them Tabotabo,[11]
Cordova,[12] Carangan,[13] Danny Layogue,[14] and
Marictibert Macias[15] later recanted their affidavits.
On August 20, 2001, this Court issued a Resolution[16]
referring the complaint to Court of Appeals Associate Justice
Eriberto U. Rosario, Jr. for investigation, report and
recommendation. On October 29, 2001, Justice Rosario
issued an Order[17] setting the initial hearing on November
27, 28 and 29, 2001 and requiring the parties to submit a list
of their respective witnesses and documentary evidence.
The hearing was, however, reset to January 28, 29, 30, and
31, 2002 upon motion of complainant. On January 28, 2002,
the parties informed the Investigating Justice that they were
exerting all efforts for a possible reconciliation. Upon motion
by both parties, the hearing was again reset to March 11, 12,
13, and 14, 2002.
On March 11, 2002, the parties again informed the
Investigating Justice of their desire to confer in a last effort to
settle. The request was again granted with an order that both
parties should be ready the following day if no settlement
was reached. The following day, March 12, 2002, the
scheduled hearing proceeded after the parties failed to reach
any amicable settlement.
From a list of seven (7) witnesses, complainant manifested
that only four (4) witnesses shall be presented. The first
witness, Roel Mutia, testified that he was hired by
complainants son, Marquinjo Macias, to tail Judge Macias
after suspecting that his father was having an illicit affair. In
summary, Mutia testified that he saw Judge Macias and
Seranillos enter a house in Dipolog City on the afternoon of
October 17, 1999, and that both dined and spent the night
there together inside one bedroom.[18] He said that he
accompanied Marquinjo and complainant the next day to the
said house and that he saw complainant pull Seranillos
outside the house creating a commotion within the
neighborhood.[19] On cross-examination, Mutia admitted
that he was not sure if Seranillos did spend the night inside
the said house, or whether she left that night and just
returned the following morning. Counsel for respondent also
pointed to Mutia that the spot where he positioned himself,
while observing Judge Macias, was blocked by leaves and
tall trees.[20]
The next witness for complainant was Aniceto Zozobrado.
He testified that he was hired by Seranillos to drive a
motorcycle which, according to her, was a gift from Judge
Macias. He said that he saw Judge Macias visit Seranillos
on three (3) occasions; that he ran errands for both Judge
Macias and Seranillos; and that he was slapped once by
Judge Macias for allegedly peeping at Seranillos.[21] On
cross-examination, Zozobrado admitted that he was not
really sure if the motorcycle he saw was actually owned by
Seranillos, and that his statement was based merely on
presumption.[22] He also admitted that he had been residing
with complainants counsel since the date he executed his
affidavit against Judge Macias.[23]
The third witness, Engracio Dialo, Jr., was not allowed to
testify after respondents counsel objected because the
intended testimony would cover an event that took place
after the filing of the complaint, and Dialos affidavit narrated
matters that were not covered by the allegations in the
complaint.[24] Complainant manifested her intention to file a
motion to amend the complaint.[25] The Investigating Justice
ordered the direct examination of the fourth witness,
complainant Margie Macias, without prejudice to her
presenting Dialo after the motion to amend the complaint
shall have been resolved. Complainant, however, refused,
saying that she would testify only after Dialo had testified.
[26] The Investigating Justice warned complainant that her
refusal to testify shall be taken as a waiver of her right to
present further witnesses and evidence.[27] Despite the
warning, complainant refused to proceed with her direct
testimony. The Investigating Justice ordered complainant to
rest her case, but she again refused.
The witness for respondent was Judge Macias himself. He
denied the allegations of Mutia and Zozobrado. He said that
complainant also filed a complaint for concubinage against
him, but the same was dismissed by the Regional State
Prosecutor for lack of sufficient evidence. He believed that
complainants accusations were brought about by her
psychiatric condition characterized as severe paranoia.[28]
On April 25, 2002, the Investigating Justice submitted his
Report and Recommendation[29] to this Court. He
recommended the dismissal of the complaint against Judge
Macias. The Investigating Justice reasoned that complainant
failed to prove beyond reasonable doubt that respondent
committed acts of immorality, or that his conduct was
prejudicial to the best interest of the service. The
Investigating Justice, however, recommended that Judge
Macias be reprimanded for failing to exercise great care and
circumspection in his actions.[30]
The case now comes before this Court for final resolution.
There are two basic questions that must be resolved. First,
considering the finding of the Investigating Justice, we ask:
is it really necessary that administrative complaints against
members of the judiciary be disposed of only after adducing
evidence that will prove guilt beyond reasonable doubt? And
second, do the acts complained of warrant the imposition of
disciplinary sanction on respondent judge?
I.
In several cases,[31] this Court has ruled that if what is
imputed to a respondent judge connotes a misconduct that,
if proven, would result in dismissal from the bench, then the
quantum of proof necessary to support the administrative
charges or to establish grounds for the removal of a judicial
officer should be more than substantial.
The first case involving an administrative complaint filed
against a judge in this jurisdiction was decided in 1922 in In
re Impeachment of Horrilleno.[32] There, Justice Malcolm
explained:
The procedure for the impeachment of judges of first
instance has heretofore not been well defined. The Supreme
Court has not yet adopted rules of procedure, as it is
authorized to do by law. In practice, it is usual for the court to
require that charges made against a judge of first instance
shall be presented in due form and sworn to; thereafter, to
give the respondent judge an opportunity to answer;
thereafter, if the explanation of the respondent be deemed
satisfactory, to file (sic) the charges without further
annoyance for the judge; while if the charges establish a
prima facie case, they are referred to the Attorney-General
who acts for the court in conducting an inquiry into the
conduct of the respondent judge. On the conclusion of the
Attorney-Generals investigation, a hearing is had before the
court en banc and it sits in judgment to determine if sufficient
cause exists involving the serious misconduct or inefficiency
of the respondent judge as warrants the court in
recommending his removal to the Governor-General.
Impeachment proceedings before courts have been said, in
other jurisdictions, to be in their nature highly penal in
character and to be governed by the rules of law applicable
to criminal cases. The charges must, therefore, be proved
beyond a reasonable doubt.[33]

With Horilleno, it became necessary for every complainant to
prove guilt beyond reasonable doubt despite the fact that the
case will only involve an administrative, and not a criminal,
complaint. The reason is explained, albeit scarcely, in
Alcuizar v. Carpio:[34]
While substantial evidence would ordinarily suffice to support
a finding of guilt, the rule is a bit different where the
proceedings involve judges charged with grave offense.
Administrative proceedings against judges are, by nature,
highly penal in character and are to be governed by the rules
applicable to criminal cases.[35]
In more recent rulings, however, the Court applied
substantial evidence as the normative quantum of proof
necessary in resolving administrative complaints against
judges. In order to diffuse confusion, a clarification has to be
made. First, the pronouncements in Horilleno and Alcuizar
may be said to have been superseded by the Courts recent
rulings in Gutierrez v. Belen,[36] Reyes v. Paderanga,[37]
and Naval v. Panday.[38]
Second, members of the judiciary are not a class of their
own, sui generis, in the field of public service as to require a
higher degree of proof for the administrative cases filed
against them other than, perhaps, the fact that because of
the nature of the responsibility judges have, they are
required to live up to a higher standard of integrity, probity
and morality.
When we dismiss a public officer or employee from his
position or office for the commission of a grave offense in
connection with his office, we merely require that the
complainant prove substantial evidence. When we disbar a
disgraceful lawyer, we require that complainant merely prove
a clear preponderance of evidence to establish liability.[39]
There appears no compelling reason to require a higher
degree of proof when we deal with cases filed against
judges.
Judges play a vital role in the dispensation of justice. In this
jurisdiction, the integrity demanded of a judge does not
commence only when he dons the habiliments of a
magistrate or ends when he sheds off his judicial robe. The
nature of the position requires nothing less than a 24-hour
daily obeisance to this mandate of integrity. Any judge who
cannot live up to this exacting requirement has no business
sitting on the bench. Considering the proliferation of
complaints of abuses and immorality committed by judges, it
is only proper that the Court be ever vigilant in requiring
impeccable conduct from the members of its bench.
II. UNBECOMING CONDUCT and FINED in the amount of
P10,000.00 to be deducted from his retirement benefits.
However, in this case, we are not convinced that
complainant was able to prove, by substantial evidence, that SO ORDERED.
respondent committed the acts complained of. Basic is the EN BANC
rule that in administrative proceedings, complainant bears
the onus of establishing the averments of her complaint.[40]
If complainant fails to discharge this burden, respondent
cannot be held liable for the charge.[41] OFFICE OF THE COURT
ADMINISTRATOR,
Complainant,
Under Sections 8 and 11 of Rule 140 of the Rules of Court, a A.M. No. RTJ-10-2232
judge found guilty of immorality can be dismissed from the
service, if still in the active service, or may forfeit all or part of
his retirement benefits, if already retired, and disqualified Present:
CORONA, C.J.,
from reinstatement or appointment to any public office
including government-owned or controlled corporations.[42] CARPIO,
We have already ruled that if a judge is to be disciplined for VELASCO, JR.,
a grave offense, the evidence against him should be LEONARDO-DE CASTRO,
competent and derived from direct knowledge.[43] This BRION,
quantum of evidence, complainant failed to satisfy. - versus - PERALTA,
BERSAMIN,
DEL CASTILLO,
The testimonies of Mutia and Zozobrado are specious and ABAD,
insufficient to convincingly prove that respondent committed
VILLARAMA, JR.,
disreputable conduct. This considered, complainant should PEREZ,
not have refused to testify during the hearing. More than MENDOZA,
anyone else, it was complainant who had a direct interest in JUDGE CADER P. INDAR, SERENO,
making sure that the evidence adduced met the necessary Presiding Judge and Acting REYES, and
burden of proof, considering that the allegations in her Presiding Judge of the Regional PERLAS-BERNABE, JJ.
complaint involved charges that cannot be lightly dealt with. Trial Court, Branch 14, Cotabato
She should have been more zealous in prosecuting her City and Branch 15, Shariff
complaint. Aguak, Maguindanao, respectively, Promulgated:
Respondent. April 10, 2012
Nevertheless, we agree with the findings of the Investigating x-------------------------------------------------------------------------------
Justice that although the charges of immorality and conduct ----------x
prejudicial to the best interest of the service were not
satisfactorily proven by complainant, respondent cannot be
completely exonerated.[44] Mutias testimony that he saw
Judge Macias having dinner with Seranillos and entering a DECISION
bedroom with her may not satisfactorily prove the charge of
immorality, but this act certainly suggested an appearance of
impropriety, Judge Macias being a married man. Such
PER CURIAM:
behavior undeniably constituted unbecoming conduct, a light
offense punishable by a fine not less than P1,000.00 but not
more than P10,000.00.[45] In light of the circumstances
affecting not only the reputation of Judge Macias himself but This is an administrative complaint for gross misconduct and
the image and reputation of the whole judiciary as well, we dishonesty against respondent Judge Cader P. Indar, Al Haj
find it reasonable to impose upon him the maximum fine of (Judge Indar), Presiding Judge of the Regional Trial Court
P10,000.00. (RTC), Branch 14, Cotabato City and Acting Presiding Judge
of the RTC, Branch 15, Shariff Aguak, Maguindanao.
WHEREFORE, premises considered, the administrative
complaint for immorality and conduct prejudicial to the best This case originated from reports by the Local Civil
interest of the service against respondent Judge Mariano Registrars of Manila and Quezon City to the Office of the
Joaquin S. Macias of RTC, Branch 28, of Liloy, Zamboanga Court Administrator (OCA) that they have received an
del Norte is DISMISSED for insufficiency of evidence. alarming number of decisions, resolutions, and orders on
However, respondent is held administratively liable for annulment of marriage cases allegedly issued by Judge
Indar.

To verify the allegations against Judge Indar, the OCA
conducted a judicial audit in RTC-Shariff Aguak, Branch 15,
where the Audit Team found that the list of cases submitted
by the Local Civil Registrars of Manila and Quezon City do
not appear in the records of cases received, pending or
disposed by RTC-Shariff Aguak, Branch 15. Likewise, the
annulment decisions did not exist in the records of RTC-
Cotabato, Branch 14. The Audit Team further observed that
the case numbers in the list submitted by the Local Civil
Registrars are not within the series of case numbers
recorded in the docket books of either RTC-Shariff Aguak or
RTC-Cotabato.
At the same time, the Audit Team followed-up Judge Indars
compliance with Deputy Court Administrator (DCA) Jesus
Edwin A. Villasors 1st Indorsement, dated 15 February 2010,
relative to the letter1 of Ms. Miren Galloway, Manager-
Permanent Entry Unit, Australian Embassy, Manila
(Australian Embassy letter), asking confirmation on the
authenticity of Judge Indars decision, dated 23 May 2007, in
Spec. Proc. No. 06-581, entitled Chona Chanco Aguiling v.
Alan V. Aguiling, for Declaration of Nullity of Marriage. As
regards this case, the Audit Team found that Spec. Proc. No.
06-584 does not exist in the records of cases filed, pending
or disposed by RTC-Shariff Aguak.
Subsequently, the Audit Team made the following
conclusions:
1. The list in Annexes A; A-1; A-2 and A-3 are not found in
the list of cases filed, pending or decided in the Regional
Trial Court, Branch 15, Shariff Aguak [Maguindanao] which is
based in Cotabato City, nor in the records of the Office of the
Clerk of Court of Regional Trial Court, Cotabato City;
2. There are apparently decisions of cases which are
spurious, as these did not pass through the regular process
such as filing, payment of docket fees, trial, etc. which are
now circulating and being registered in Local Civil Registrars
throughout the country, the extent of which is any bodys
guess;
3. The authenticity of the signatures appearing thereon could
only be validated by handwriting experts of the National
Bureau of Investigation (NBI);
4. The participation of any lower court officials and/or
employees could not be ascertained except probably
through a more thorough discreet investigation and or
entrapment; [and]
5. There is a possibility that more of this (sic) spurious
documents may appear and cause damage to the Courts
Integrity.2
Meanwhile, in compliance with DCA Villasors Indorsement
and in response to the Australian Embassy letter, Judge
Indar explained, in a Letter dated 10 March 2010, that this
court is a Court of General Jurisdiction and can therefore act
even on cases involving Family Relations. Hence, the
subject decision rendered by this Court annulling the
marriage of your client is VALID and she is free to marry.3
In a Memorandum dated 26 April 2010, the OCA
recommended that (1) the matter be docketed as a regular
administrative matter; (2) the matter be assigned to a Court
of Appeals Justice for Investigation, Report, and
Recommendation; and (3) Judge Indar be preventively
suspended, pending investigation.
In a Resolution dated 4 May 2010, the Court En Banc (1)
docketed this administrative matter as A.M. No. RTJ-10-
2232,4 and (2) preventively suspended Judge Indar pending
investigation of this case.
The case was initially raffled to Justice Rodil V. Zalameda of
the Court of Appeals, Manila for investigation. The case was
re-raffled to Justice Angelita A. Gacutan (Justice Gacutan) of
the Court of Appeals, Cagayan de Oro due to its proximity to
the Regional Trial Courts involved.
Justice Gacutan set the case for hearing on several dates
and sent the corresponding notices of hearing to Judge Indar
at his known addresses, namely, his official stations in RTC-
Cotabato and RTC-Shariff Aguak and residence address.
The first notice of hearing dated 21 June 2010, which was
sent via registered mail and private courier LBC, scheduled
the hearings on 14, 15, and 16 July 2010 and directed Judge
Indar to submit in affidavit form his explanation. The LBC
records show that this notice, which was delivered to Judge
Indars official stations, was received by one Mustapha
Randang on 28 June 2010.
The scheduled hearing was postponed and reset to 20, 21
and 22 July 2010. The notice of postponement was sent to
Judge Indar via registered mail on 6 July 2010 to his official
stations and was received again by Mustapha Randang on 8
July 2010.
Judge Indar failed to attend the hearing as rescheduled and
to submit the affidavit as required. Thus, in an Order of 23
July 2010, Justice Gacutan directed Judge Indar to explain
his non-appearance, and reset the hearing to 10 and 11
August 2010. The Order was sent to his residence address
in M. Tan Subdivision, Gonzalo Javier St., Rosary Heights,
Cotabato City. The LBC report indicated that the Order was
received by a certain Mrs. Asok.
Justice Gacutan also sent a letter dated 23 July 2010
addressed to Atty. Umaima L. Silongan (Atty. Silongan),
Acting Clerk of Court of RTC-Cotabato, directing her to serve
the notice of hearing scheduled on 10 and 11 August 2010 to
Judge Indar and to report the steps taken to effect service of
the same. Atty. Silongan submitted a Return of Service,
informing that the notices sent to Judge Indar had remained
unserved, as the latter left Cotabato City in April 2010 and
his location since then was unknown.
In a Resolution of 28 September 2010, this Court directed
Justice Gacutan to conduct further investigation to determine
the authenticity of the questioned decisions allegedly
rendered by Judge Indar annulling certain marriages. The
Court required Justice Gacutan to ascertain whether the
cases were properly filed in court, and who are the parties
responsible for the issuance of the questioned decisions,
and to submit a report thereon within 60 days from receipt of
the Resolution.
In compliance with the Courts Resolution, Justice Gacutan
directed the Local Civil Registrars of Manila and Quezon City
and Atty. Silongan to submit certified true copies of the
questioned decisions and to testify thereon.
Only the Civil Registrars were present during the hearings
on 4 and 5 November 2010. Their testimonies are
summarized as follows:
Testimonies of Ma. Josefina Encarnacion A. Ocampo, City
Civil Registrar of Manila
TSN, November 4, 2010
As City Civil Registrar, she is mandated to receive all
registered documents that will affect the status of the person
like the birth, death and marriage contract, court decrees
regarding annulment, adoption, legitimization, the affidavit
using the surname of the father, naturalization, the selection
of citizenship, etc. The documents are forwarded to their
office after they are being registered by the concerned
parties.
In the case of annulment of marriage, a copy of the decision
is submitted to the Civil Registrar by the one who had his
marriage annulled. Per administrative order, it is the duty of
the Clerk of Court to furnish them a copy of the Decision.
After the copies of decisions are submitted to them, they are
mandated to verify the authenticity of the decision by writing
a verification letter to the Clerk of Court before making the
annotation or changing the parties status.

She identified the list of cases of annulment of marriages
and petitions changing status of persons (annexes A-1 and
A-2) which all came from a court in Cotabato. All the cases
listed in A-2 have already been confirmed or annotated in the
records of the Manila Civil Registry. She affirmed that the
said cases in the list were certified true by the clerk of court.
As their duty to annotate the said decrees to their records
are merely ministerial, they do not question the decrees
however peculiar they may seem.
The cases listed in the document marked as Annex A-2 were
also cases that came from Cotabato City for their annotation.
Although these cases have been certified true by the Clerk
of Court, their annotation and confirmation were held in
abeyance due to the on-going investigation of Judge Indar.
Testimony of Salvador Cario,
Chief of Records Division, City Civil Registrar of Quezon City
TSN, November 4, 2010
He generally supervises the retrieval of all the records or
documents in their office. He also signs certified true copies
of birth, marriage contract, death certificate and certified true
copies of Courts decisions furnished to them by different
courts.
With regards the decisions issued by the Court in provinces,
once the Judge issued the decision regarding the
annulment, the parties concern should first register the
decision to the Local Civil Registrar where the court is
situated. After they receive the decision from the
Administrative Division, they would call or write the
concerned Local Civil Registrar to authenticate or verify the
records. He identified the cases coming from a Cotabato
court that were submitted to them for annotation.
The subject decisions listed in the annexes which were
decided by a court in Cotabato City were already annotated
and verified. However he could not ascertain who from the
court verified the authenticity or existence of such decisions
as he was not the one who personally called to verify and
authenticate them from the court where the listed
Decisions/Orders originate.5
The Civil Registrar of Manila submitted copies of Decisions,
Orders and Resolutions, all signed by Judge Indar, in forty
three (43) cases for annulment of marriage, correction of
entry and other similar cases from RTC-Cotabato City,
Branch 15. All the decisions were accompanied by the
corresponding Letter of Atty. Silongan, affirming each of the
decisions as true and authentic based on the records, while
thirty six (36) of such decisions are accompanied by Atty.
Silongans certification affirming the genuineness of Judge
Indars signature affixed on the Decisions.6
On the other hand, the Civil Registrar of Quezon City
submitted twenty five (25) Decisions, Orders, and
Resolutions issued by RTC-Cotabato City, Branch 15, which
were transmitted to the Registrars office for annotation and
recording. All the Decisions were signed by Judge Indar, and
accompanied by Certificates of Finality affirming the
genuineness of Judge Indars signature appearing above the
name of Judge Cader P. Indar. The Certificates of Finality
were issued by Atty. Silongan and in one case, by Abie
Amilil, the OIC-Branch Clerk of Court.7
Meanwhile, Atty. Silongan, despite notice, failed to attend the
hearing. She explained in a Manifestation of 8 November
2010 that she received the Notice only on 8 November 2010
because she was on leave from 1 October 1 to 30 November
2010. Thus, the hearing was reset to 11 and 12 January
2011. However, on the scheduled hearing, Atty. Silongan still
failed to appear.
Justice Gacutan sought the assistance of the National
Bureau of Investigation (NBI) to locate the whereabouts of
Judge Indar, as well as of Atty. Silongan. After several
exchanges of correspondence, the NBI, in a Letter dated 22
March 2011, provided the residence addresses of both
Judge Indar and Atty. Silongan.
Meanwhile, Judge George C. Jabido (Judge Jabido), Acting
Presiding Judge of RTC-Shariff Aguak, Branch 15, was
directed to verify the authenticity of the records of the subject
Decisions and to appear at the hearing on 29 March 2011.
The hearing was canceled due to the judicial reorganization
in the Court of Appeals.
This administrative matter was re-raffled to Justice Abraham
B. Borreta (Justice Borreta) since Justice Gacutan was
reassigned to Manila effective 11 April 2011. Justice Borreta
set the hearing on 27 to 29 June 2011. Notices of hearing
were sent to Judge Indar and Atty. Silongan at the addresses
provided by the NBI and at their previous mailing addresses.
The registered mails addressed to Judge Indar were
returned for the following reasons: (1) addressee out of
town, move to another place and (2) addressee unknown.
The Notice sent to Atty. Silongan was also returned and per
LBC report, the consignee has moved to an unknown
address.
Judge Jabido, who was notified of the hearing, testified that:
In compliance with the directive of the Investigating Justice
to verify the authenticity of the records of the listed
decisions, judgments and orders, he issued memos to the
officers of the Court, the Branch Clerk of Court, the docket
clerk, directing them to produce and secure copies of the
minutes and other documents related therein. He personally
checked the records of the RTC. The Records of the RTC
are bereft of evidence to show that regular and true
proceedings were had on these cases. There is no showing
that a docket fee has been paid for each corresponding
cases. There is also no showing that the parties were
notified of a scheduled hearing as calendared. There is also
no record that a hearing was conducted. No stenographic
notes of the actual proceedings were also made. He could
not also determine when the said cases were submitted for
decision as it was not calendared for that purpose.8
Judge Jabido also submitted a report, portions of which
read:
The undersigned took extra efforts to locate any record of
the cases involving the parties as enumerated in the list. The
undersigned even issued Memorandum to the Branch Clerk
of Court, the docket clerk and other responsible officers of
the Court to produce and secure copies of any
pleading/documents related to these cases enumerated in
the list but his efforts proved futile, hence:
a) to this Court, there is no record on file of all the
enumerated cases contained in the list.
b) to this Court, it is bereft of any evidence on whether the
Hon. Judge Indar conducted a hearing in these cases.
xxxx
There is absence of any record showing compliance of the
same. It is hereby submitted that the manner upon which the
questioned annulment and correction cases, as contained
herein in the attached list, allegedly decided by the Hon.
Judge Indar were commenced are clearly doubtful.
Firstly, there is no showing of compliance on the rules
prescribed.
xxxx
There is no showing that a verified Petition was officially filed
in writing and giving (sic) an opportunity for the Respondents
to be heard by himself or by counsel. x x x9
To support his findings, Judge Jabido submitted: (1) copies
of the Letters and Memoranda mentioned in the report; (2)
the Calendar of Cases in RTC-Cotabato, Branch 15, on
various dates from the period starting April 2007 to 20
October 2009; and (3) the Docket Inventory in Civil Cases,
Criminal Cases and Other Cases for the period of January to
December 2009 in RTC-Cotabato, Branch 15.
Subpoenas were sent to some of the parties in the
questioned decisions, namely: Grace Elizarde Reyes
(Special Case No. 1049), Buenaventura Mojica (Apl. Proc.
No. 08-1931), Marie Christine N. Florendo (Civil Case No.
519), Jesse Yamson Faune, Jr. (Special Civil Case 08-2366),
Rosemarie Tongson Ramos (Special Case No. 08-1871) and
Melissa Sangan-Demafelis (Spl. Proc. 07-2262) to determine
whether they filed the petitions for annulment of marriage
and whether proceedings were actually had before Judge
Indars sala in relation to their cases. All the subpoenas were
returned to the Court of Appeals.
In his Report dated 2 September 2011, Justice Borreta first
determined whether the requirements of due process had
been complied with since there was no proof that Judge
Indar personally and actually received any of the notices
sent to him in the course of the investigation.
Justice Borreta differentiated administrative due process with
judicial due process. He stated that while a day in court is a
matter of right in judicial proceedings, it is otherwise in
administrative proceedings since they rest upon different
principles.
Justice Borreta noted that all possible means to locate Judge
Indar and to personally serve the court notices to him were
resorted to. The notices of hearing were sent to Judge
Indars known addresses, namely, his sala in RTC-Cotabato
Branch 14 and RTC-Shariff Aguak Branch 15, and at his
residence address. However, none of the notices appeared
to have been personally received by Judge Indar.
Notwithstanding, Justice Borreta concluded that the
requirements of due process have been complied with.
Justice Borreta stated that Judge Indar was aware of a
pending administrative case against him. The notice of this
Courts Resolution of 4 May 2010, preventively suspending
Judge Indar, was mailed and sent to him at his sala in RTC-
Shariff Aguak, Branch 15.
Justice Borreta proceeded to determine Judge Indars
administrative liability, and found the latter guilty of serious
misconduct and dishonesty.
According to Justice Borreta, Judge Indars act of issuing
decisions on annulment of marriage cases without complying
with the stringent procedural and substantive requirements
of the Rules of Court for such cases clearly violates the
Code of Judicial Conduct. Judge Indar made it appear that
the annulment cases underwent trial, when the records show
no judicial proceedings occurred.
Moreover, Judge Indars act of affirming in writing before the
Australian Embassy the validity of a decision he allegedly
rendered, when in fact that case does not appear in the
courts records, constitutes dishonesty.
Justice Borreta recommended the dismissal of Judge Indar
from service, and the investigation of Atty. Silongan, who is
not included as respondent in this case, on her participation
in the certification of the authenticity of the spurious
Decisions.
The sole issue in this case is whether Judge Indar is guilty of
gross misconduct and dishonesty.
We agree with the findings of the Investigating Justice.
The Uniform Rules on Administrative Cases in the Civil
Service, which govern the conduct of disciplinary and non-
disciplinary proceedings in administrative cases, clearly
provide that technical rules of procedure and evidence do
not strictly apply to administrative proceedings. Section 3,
Rule I of the Uniform Rules states:
Section 3. Technical Rules in Administrative Investigations.
Administrative investigations shall be conducted without
necessarily adhering strictly to the technical rules of
procedure and evidence applicable to judicial proceedings.
In Cornejo v. Gabriel,10 the Court held that notice and
hearing are not indispensable in administrative
investigations, thus:
The fact should not be lost sight of that we are dealing with
an administrative proceeding and not with a judicial
proceeding. As Judge Cooley, the leading American writer on
constitutional Law, has well said, due process of law is not
necessarily judicial process; much of the process by means
of which the Government is carried on, and the order of
society maintained, is purely executive or administrative,
which is as much due process of law, as is judicial process.
While a day in court is a matter of right in judicial
proceedings, in administrative proceedings it is otherwise
since they rest upon different principles. In certain
proceedings, therefore, of an administrative character, it may
be stated, without fear of contradiction, that the right to a
notice and hearing are not essential to due process of law. x
x x11 (Emphasis supplied; citations omitted)
It is settled that technical rules of procedure and evidence
are not strictly applied to administrative proceedings. Thus,
administrative due process cannot be fully equated with due
process in its strict judicial sense.12 It is enough that the
party is given the chance to be heard before the case
against him is decided.13 Otherwise stated, in the
application of the principle of due process, what is sought to
be safeguarded is not lack of previous notice but the denial
of the opportunity to be heard.14
The Court emphasized in Cornejo15 the Constitutional
precept that public office is a public trust,16 which is the
underlying principle for the relaxation of the requirements of
due process of law in administrative proceedings, thus:
Again, for this petition to come under the due process of law
prohibition, it would be necessary to consider an office as
property. It is, however, well settled in the United States, that
a public office is not property within the sense of the
constitutional guaranties of due process of law, but is a
public trust or agency.17 (Emphasis supplied)
In this case, Judge Indar was given ample opportunity to
controvert the charges against him. While there is no proof
that Judge Indar personally received the notices of hearing
issued by the Investigating Justices, the first two notices of
hearing were received by one Mustapha Randang of the
Clerk of Court, RTC-Cotabato, while one of the notices was
received by a certain Mrs. Asok, who were presumably
authorized and capable to receive notices on behalf of Judge
Indar.
Further, Judge Indar cannot feign ignorance of the
administrative investigation against him because aside from
the fact that the Courts Resolution suspending him was
mailed to him, his preventive suspension was reported in
major national newspapers.18 Moreover, Judge Indar was
repeatedly sent notices of hearings to his known addresses.
Thus, there was due notice on Judge Indar of the charges
against him. However, Judge Indar still failed to file his
explanation and appear at the scheduled hearings.
Consequently, the investigation proceeded ex parte in
accordance with Section 4, Rule 140 of the Rules of
Court.19
Public office is a public trust.20 This constitutional principle
requires a judge, like any other public servant and more so
because of his exalted position in the Judiciary, to exhibit at
all times the highest degree of honesty and integrity.21 As
the visible representation of the law tasked with dispensing
justice, a judge should conduct himself at all times in a
manner that would merit the respect and confidence of the
people.22
Judge Indar miserably failed to live up to these exacting
standards.
In Office of the Court Administrator v. Lopez,23 the Court
explained the difference between simple misconduct and
grave misconduct, thus:
The Court defines misconduct as a transgression of some
established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer.
The misconduct is grave if it involves any of the additional
elements of corruption, willful intent to violate the law, or to
disregard established rules, which must be established by
substantial evidence. As distinguished from simple
misconduct, the elements of corruption, clear intent to violate
the law, or flagrant disregard of established rule, must be
manifest in a charge of grave misconduct.
In this case, Judge Indar issued decisions on numerous
annulment of marriage cases which do not exist in the
records of RTC-Shariff Aguak, Branch 15 or the Office of the
Clerk of Court of the Regional Trial Court, Cotabato City.
There is nothing to show that (1) proceedings were had on
the questioned cases; (2) docket fees had been paid; (3) the
parties were notified of a scheduled hearing as calendared;
(4) hearings had been conducted; or (5) the cases were
submitted for decision. As found by the Audit Team, the list of
case titles submitted by the Local Civil Registrars of Manila
and Quezon City are not found in the list of cases filed,
pending or decided in RTC, Branch 15, Shariff Aguak, nor in
the records of the Office of the Clerk of Court of the Regional
Trial Court, Cotabato City. In other words, Judge Indar, who
had sworn to faithfully uphold the law, issued decisions on
the questioned annulment of marriage cases, without any
showing that such cases underwent trial and complied with
the statutory and jurisprudential requisites for voiding
marriages. Such act undoubtedly constitutes gross
misconduct.
The Court condemns Judge Indars reprehensible act of
issuing Decisions that voided marital unions, without
conducting any judicial proceedings. Such malfeasance not
only makes a mockery of marriage and its life-changing
consequences but likewise grossly violates the basic norms
of truth, justice, and due process. Not only that, Judge Indars
gross misconduct greatly undermines the peoples faith in the
judiciary and betrays public trust and confidence in the
courts. Judge Indars utter lack of moral fitness has no place
in the Judiciary. Judge Indar deserves nothing less than
dismissal from the service.
The Court defines dishonesty as:
x x x a disposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity; lack of honesty, probity or
integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or
betray.24
In this case, Judge Indar issued Decisions on numerous
annulment of marriage cases when in fact he did not conduct
any judicial proceedings on the cases. Not even the filing of
the petitions occurred. Judge Indar made it appear in his
Decisions that the annulment cases complied with the
stringent requirements of the Rules of Court and the strict
statutory and jurisprudential conditions for voiding marriages,
when quite the contrary is true, violating Canon 3 of the
Code of Judicial Conduct which mandates that a judge
perform official duties honestly.
As found by the Audit Team, the list of cases submitted by
the Local Civil Registrars of Manila and Quezon City do not
appear in the records of cases received, pending, or
disposed by RTC-Shariff Aguak, Branch 15, which Judge
Indar presided. The cases do not likewise exist in the docket
books of the Office of the Clerk of Court, RTC-Cotabato. The
Audit Team also noted that the case numbers in the list are
not within the series of case numbers recorded in the docket
books of either RTC-Shariff Aguak or RTC-Cotabato.
Moreover, Judge Jabido, Acting Presiding Judge of RTC-
Shariff Aguak, Branch 15, verified the records of the trial
court and found nothing to show that proceedings were had
on the questioned annulment cases. There was nothing in
the records to show that (1) petitions were filed; (2) docket
fees were paid; (3) the parties were notified of hearings; (4)
hearings were calendared and actually held; (5)
stenographic notes of the proceedings were taken; and (6)
the cases were submitted for decision.
Among the questioned annulment decrees is Judge Indars
Decision dated 23 May 2007, in Spec. Proc. No. 06-581,
entitled Chona Chanco Aguiling v. Alan V. Aguiling. Despite
the fact that no proceedings were conducted in the case,
Judge Indar declared categorically, in response to the
Australian Embassy letter, that the Decision annulling the
marriage is valid and that petitioner is free to marry. In effect,
Judge Indar confirms the truthfulness of the contents of the
annulment decree, highlighting Judge Indars appalling
dishonesty.
The Court notes that this is not Judge Indars first offense. In
A.M. No. RTJ-05-1953,25 the Court imposed on him a fine of
P10,000 for violating Section 5, Rule 58 of the Rules of
Court, when he issued a preliminary injunction without any
hearing and prior notice to the parties. In another case, A.M.
No. RTJ-07-2069,26 the Court found him guilty of gross
misconduct for committing violations of the Code of Judicial
Conduct and accordingly fined him P25,000.
Since this is Judge Indars third offense, showing the
depravity of his character and aggravating27 the serious
offenses of gross misconduct and dishonesty,28 the Court
imposes on Judge Indar the ultimate penalty of dismissal
from the service, with its accessory penalties, pursuant to
Section 11, Rule 140 of the Rules of Court.29
This administrative case against Judge Indar shall also be
considered as a disciplinary proceeding against him as a
member of the Bar, in accordance with AM. No. 02-9-02-
SC.30 This Resolution entitled Re: Automatic Conversion of
Some Administrative Cases Against Justices of the Court of
Appeals and the Sandiganbayan; Judges of Regular and
Special Courts; and Court Officials Who are Lawyers as
Disciplinary Proceedings Against Them Both as Such
Officials and as Members of the Philippine Bar, provides:
Some administrative cases against Justices of the Court of
Appeals and the Sandiganbayan; judges of regular and
special courts; and the court officials who are lawyers are
based on grounds which are likewise grounds for the
disciplinary action of members of the Bar for violation of the
Lawyers Oath, the Code of Professional Responsibility, and
the Canons of Professional Ethics, or for such other forms of
breaches of conduct that have been traditionally recognized
as grounds for the discipline of lawyers.
In any of the foregoing instances, the administrative case
shall also be considered a disciplinary action against the
respondent justice, judge or court official concerned as a
member of the Bar. The respondent may forthwith be
required to comment on the complaint and show cause why
he should not also be suspended, disbarred or otherwise
disciplinary sanctioned as a member of the Bar. Judgment in
both respects may be incorporated in one decision or
resolution. (Emphasis supplied)
Indisputably, Judge Indars gross misconduct and dishonesty
likewise constitute a breach of the following Canons of the
Code of Professional Responsibility:
CANON 1 - A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND FOR LEGAL
PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful act.
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD
THE INTEGRITY AND DIGNITY OF THE LEGAL
PROFESSION.
In addition, Judge Indars dishonest act of issuing decisions
making it appear that the annulment cases underwent trial
and complied with the Rules of Court, laws, and established
jurisprudence violates the lawyers oath to do no falsehood,
nor consent to the doing of any in court. Such violation is
also a ground for disbarment. Section 27, Rule 138 of the
Rules of Court provides:
SEC. 27. Disbarment and suspension of attorneys by
Supreme Court, grounds therefor. - A member of the bar may
be disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by
reason of his conviction of a crime involving moral turpitude,
or for any violation of the oath which he is required to take
before admission to practice, or for a 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 so to do. The practice of soliciting cases at
law for the purpose of gain, either personally or through paid
agents or brokers, constitutes malpractice. (Emphasis
supplied)
In Samson v. Caballero,31 where the Court automatically
disbarred the respondent judge, pursuant to the provisions of
AM. No. 02-9-02-SC, the Court held:
Under the same rule, a respondent may forthwith be
required to comment on the complaint and show cause why
he should not also be suspended, disbarred or otherwise
disciplinary sanctioned as member of the Bar. The rule does
not make it mandatory, before respondent may be held liable
as a member of the bar, that respondent be required to
comment on and show cause why he should not be
disciplinary sanctioned as a lawyer separately from the order
for him to comment on why he should not be held
administratively liable as a member of the bench. In other
words, an order to comment on the complaint is an order to
give an explanation on why he should not be held
administratively liable not only as a member of the bench but
also as a member of the bar. This is the fair and reasonable
meaning of automatic conversion of administrative cases
against justices and judges to disciplinary proceedings
against them as lawyers. This will also serve the purpose of
A.M. No. 02-9-02-SC to avoid the duplication or unnecessary
replication of actions by treating an administrative complaint
filed against a member of the bench also as a disciplinary
proceeding against him as a lawyer by mere operation of the
rule. Thus, a disciplinary proceeding as a member of the bar
is impliedly instituted with the filing of an administrative case
against a justice of the Sandiganbayan, Court of Appeals
and Court of Tax Appeals or a judge of a first- or second-
level court.
It cannot be denied that respondents dishonesty did not only
affect the image of the judiciary, it also put his moral
character in serious doubt and rendered him unfit to continue
in the practice of law. Possession of good moral character is
not only a prerequisite to admission to the bar but also a
continuing requirement to the practice of law. If the practice
of law is to remain an honorable profession and attain its
basic ideals, those counted within its ranks should not only
master its tenets and principles but should also accord
continuing fidelity to them. The requirement of good moral
character is of much greater import, as far as the general
public is concerned, than the possession of legal learning.
(Emphasis supplied)
Considering that Judge Indar is guilty of gross misconduct
and dishonesty, constituting violations of the Lawyers Oath,
and Canons 1 and 7 and Rule 1.01 of the Code of
Professional Responsibility, Judge Indar deserves
disbarment.
In so far as Atty. Silongan, is concerned, we adopt Justice
Borretas recommendation to conduct an investigation on her
alleged participation in the authentication of the questioned
Decisions.
WHEREFORE, the Court finds respondent Judge Cader P.
Indar, Al Haj, Presiding Judge of the RTC, Branch 14,
Cotabato City and Acting Presiding Judge of the RTC,
Branch 15, Shariff Aguak, Maguindanao, guilty of Gross
Misconduct and Dishonesty for which he is DISMISSED from
the service, with forfeiture of all benefits due him, except
accrued leave benefits, if any, with prejudice to re-
employment in any branch of the government, including
government-owned or controlled corporations.
Judge Indar is likewise DISBARRED for violation of Canons
1 and 7 and Rule 1.01 of the Code of Professional
Responsibility and his name ORDERED STRICKEN from
the Roll of Attorneys.
Let a copy of this Decision be entered into Judge Indars
record as a member of the bar and notice of the same be
served on the Integrated Bar of the Philippines and on the
Office of the Court Administrator for circulation to all courts in
the country.
The Office of the Court Administrator is ORDERED to
investigate Atty. Umaima L. Silongan, Acting Clerk of Court
of the Regional Trial Court, Cotabato City, on her alleged
participation in the authentication of the questioned
Decisions on the annulment of marriage cases issued by
Judge Indar.
Let copies of this Decision be forwarded to the Local Civil
Registrars of the City of Manila and Quezon City, the same
to form part of the records of Decisions of Judge Indar on the
annulment of marriages filed with their offices.
This Decision is immediately executory.
SO ORDERED.
United States Supreme Court
INGRAHAM v. WRIGHT, (1977)
No. 75-6527
Argued: Decided: April 19, 1977
Petitioners, pupils in a Dade County, Fla., junior high school,
filed this action in Federal District Court pursuant to 42
U.S.C. 1981-1988 for damages and injunctive and
declaratory relief against respondent school officials, alleging
that petitioners and other students had been subjected to
disciplinary corporal punishment in violation of their
constitutional rights. The Florida statute then in effect
authorized corporal punishment after the teacher had
consulted with the principal or teacher in charge of the
school, specifying that the punishment was not to be
"degrading or unduly severe." A School Board regulation
contained specific directions and limitations, authorizing
punishment administered to a recalcitrant student's buttocks
with a wooden paddle. The evidence showed that the
paddling of petitioners was exceptionally harsh. The District
Court granted respondents' motion to dismiss the complaint,
finding no basis for constitutional relief. The Court of Appeals
affirmed. Held:
1. The Cruel and Unusual Punishments Clause of the Eighth
Amendment does not apply to disciplinary corporal
punishment in public schools. Pp. 664-671.
(a) The history of the Eighth Amendment and the decisions
of this Court make it clear that the prohibition against cruel
and unusual punishment was designed to protect those
convicted of crime. Pp. 664-668.
(b) There is no need to wrench the Eighth Amendment from
its historical context and extend it to public school
disciplinary practices. The openness of the public school and
its supervision by the community afford significant
safeguards against the kinds of abuses from which that
Amendment protects convicted criminals. These safeguards
are reinforced by the legal constraints of the common law,
whereby any punishment going beyond that which is
reasonably necessary for the proper education and discipline
of the child may result in both civil and criminal liability. Pp.
668-671.
2. The Due Process Clause of the Fourteenth Amendment
does not require notice and hearing prior to imposition of
corporal punishment as that practice is authorized and
limited by the common law. Pp. 672-682. [430 U.S. 651, 652]
(a) Liberty within the meaning of the Fourteenth Amendment
is implicated where public school authorities, acting under
color of state law, deliberately punish a child for misconduct
by restraint and infliction of appreciable physical pain.
Freedom from bodily restraint and punishment is within the
liberty interest in personal security that has historically been
protected from state deprivation without due process of law.
Pp. 672-674.
(b) Under the longstanding accommodation between the
child's interest in personal security and the traditional
common-law privilege, there can be no deprivation of
substantive rights as long as the corporal punishment
remains within the limits of that privilege. The child
nonetheless has a strong interest in procedural safeguards
that minimize the risk of wrongful punishment and provide for
the resolution of disputed questions of justification. Pp. 675-
676.
(c) The Florida scheme, considered in light of the openness
of the school environment, affords significant protection
against unjustified corporal punishment of schoolchildren.
The teacher and principal must exercise prudence and
restraint when they decide that corporal punishment is
necessary for disciplinary purposes. If the punishment is
later found to be excessive, they may be held liable in
damages or be subject to criminal penalties. Where the
State has thus preserved what "has always been the law of
the land," United States v. Barnett, 376 U.S. 681, 692 , the
case for administrative safeguards is significantly less
compelling than it would otherwise be. Pp. 676-680.
(d) Imposing additional administrative safeguards as a
constitutional requirement would significantly intrude into the
area of educational responsibility that lies primarily with the
public school authorities. Prior procedural safeguards require
a diversion of educational resources, and school authorities
may abandon corporal punishment as a disciplinary measure
rather than incur the burdens of complying with procedural
requirements. The incremental benefit of invoking the
Constitution to impose prior notice and a hearing cannot
justify the costs. Pp. 680-682.
525 F.2d 909, affirmed.
POWELL, J., delivered the opinion of the Court, in which
BURGER, C. J., and STEWART, BLACKMUN, and
REHNQUIST, JJ., joined. WHITE, J., filed a dissenting
opinion, in which BRENNAN, MARSHALL, and STEVENS,
JJ., joined, post, p. 683. STEVENS, J., filed a dissenting
opinion, post, p. 700.
Bruce S. Rogow argued the cause for petitioners. With him
on the briefs were Howard W. Dixon and Peter M. Siegel.
[430 U.S. 651, 653]
Frank A. Howard, Jr., argued the cause and filed a brief for
respondents. *
[ Footnote * ] Michael Nussbaum, Lucien Hilmer, Ronald G.
Precup, and David Rubin filed a brief for the National
Education Assn. as amicus curiae urging reversal. Briefs of
amici curiae urging affirmance were filed by Leon Fieldman
for the National School Boards Assn.: and by Tobias Simon
and Elizabeth J. du Fresne for the United Teachers of Dade,
Local 1974, AFT, AFL-CIO. Gertrude M. Bacon filed a brief
for the American Psychological Association Task Force on
the Rights of Children and Youths as amicus curiae.
MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents questions concerning the use of corporal
punishment in public schools: First, whether the paddling of
students as a means of maintaining school discipline
constitutes cruel and unusual punishment in violation of the
Eighth Amendment; and, second, to the extent that paddling
is constitutionally permissible, whether the Due Process
Clause of the Fourteenth Amendment requires prior notice
and an opportunity to be heard.
I of 1970. In an apparent reference to Drew, the District Court
Petitioners James Ingraham and Roosevelt Andrews filed
the complaint in this case on January 7, 1971, in the United
States District Court for the Southern District of Florida. 1 At
the time both were enrolled in the Charles R. Drew Junior
High School in Dade County, Fla., Ingraham in the eighth
grade and Andrews in the ninth. The complaint contained
three counts, each alleging a separate cause of action for
deprivation of constitutional rights, under 42 U.S.C. 1981-
1988. Counts one and two were individual actions for
damages by Ingraham and Andrews based on paddling
incidents that allegedly occurred in October 1970 at Drew
Junior High School. Count three was a class action for
declaratory and [430 U.S. 651, 654] injunctive relief filed on
behalf of all students in the Dade County schools. 2 Named
as defendants in all counts were respondents Willie J. Wright
(principal at Drew Junior High School), Lemmie Deliford (an
assistant principal), Solomon Barnes (an assistant to the
principal), and Edward L. Whigham (superintendent of the
Dade County School System). 3
Petitioners presented their evidence at a week-long trial
before the District Court. At the close of petitioners' case,
respondents moved for dismissal of count three "on the
ground that upon the facts and the law the plaintiff has
shown no right to relief," Fed. Rule Civ. Proc. 41 (b), and for
a ruling that the evidence would be insufficient to go to a jury
on counts one and two. 4 The District Court granted the
motion as to all three counts, and dismissed the complaint
without hearing evidence on behalf of the school authorities.
App. 142-150. [430 U.S. 651, 655]
Petitioners' evidence may be summarized briefly. In the
1970-1971 school year many of the 237 schools in Dade
County used corporal punishment as a means of maintaining
discipline pursuant to Florida legislation and a local School
Board regulation. 5 The statute then in effect authorized
limited corporal punishment by negative inference,
proscribing punishment which was "degrading or unduly
severe" or which was inflicted without prior consultation with
the principal or the teacher in charge of the school. Fla. Stat.
Ann. 232.27 (1961). 6 The regulation, Dade County School
Board Policy [430 U.S. 651, 656] 5144, contained explicit
directions and limitations. 7 The authorized punishment
consisted of paddling the recalcitrant student on the buttocks
with a flat wooden paddle measuring less than two feet long,
three to four inches wide, and about one-half inch thick. The
normal punishment was limited to one to five "licks" or blows
with the paddle and resulted in [430 U.S. 651, 657] no
apparent physical injury to the student. School authorities
viewed corporal punishment as a less drastic means of
discipline than suspension or expulsion. Contrary to the
procedural requirements of the statute and regulation,
teachers often paddled students on their own authority
without first consulting the principal. 8
Petitioners focused on Drew Junior High School, the school
in which both Ingraham and Andrews were enrolled in the fall
found that "[t]he instances of punishment which could be
characterized as severe, accepting the students' testimony
as credible, took place in one junior high school." App. 147.
The evidence, consisting mainly of the testimony of 16
students, suggests that the regime at Drew was
exceptionally harsh. The testimony of Ingraham and
Andrews, in support of their individual claims for damages, is
illustrative. Because he was slow to respond to his teacher's
instructions, Ingraham was subjected to more than 20 licks
with a paddle while being held over a table in the principal's
office. The paddling was so severe that he suffered a
hematoma 9 requiring medical attention and keeping him out
of school for several days. 10 Andrews was paddled several
times for minor infractions. On two occasions he was struck
on his arms, once depriving him of the full use of his arm for
a week. 11 [430 U.S. 651, 658]
The District Court made no findings on the credibility of the
students' testimony. Rather, assuming their testimony to be
credible, the court found no constitutional basis for relief.
With respect to count three, the class action, the court
concluded that the punishment authorized and practiced
generally in the county schools violated no constitutional
right. Id., at 143, 149. With respect to counts one and two,
the individual damages actions, the court concluded that
while corporal punishment could in some cases violate the
Eighth Amendment, in this case a jury could not lawfully find
"the elements of severity, arbitrary infliction, unacceptability
in terms of contemporary standards, or gross disproportion
which are necessary to bring `punishment' to the
constitutional level of `cruel and unusual punishment.'" Id., at
143.
A panel of the Court of Appeals voted to reverse. 498 F.2d
248 (CA5 1974). The panel concluded that the punishment
was so severe and oppressive as to violate the Eighth and
Fourteenth Amendments, and that the procedures outlined in
Policy 5144 failed to satisfy the requirements of the Due
Process Clause. Upon rehearing, the en banc court rejected
these conclusions and affirmed the judgment of the District
Court. 525 F.2d 909 (1976). The full court held that the Due
Process Clause did not require notice or an opportunity to be
heard:
"In essence, we refuse to set forth, as constitutionally
mandated, procedural standards for an activity which is not
substantial enough, on a constitutional level, to justify the
time and effort which would have to be expended by the
school in adhering to those procedures or to justify further
interference by federal courts into the internal affairs of
public schools." Id., at 919.
The court also rejected the petitioners' substantive
contentions. The Eighth Amendment, in the court's view, was
simply inapplicable to corporal punishment in public [430
U.S. 651, 659] schools. Stressing the likelihood of civil and
criminal liability in state law, if petitioners' evidence were
believed, the court held that "[t]he administration of corporal
punishment in public schools, whether or not excessively
administered, does not come within the scope of Eighth
Amendment protection." Id., at 915. Nor was there any
substantive violation of the Due Process Clause. The court
noted that "[p]addling of recalcitrant children has long been
an accepted method of promoting good behavior and
instilling notions of responsibility and decorum into the
mischievous heads of school children." Id., at 917. The court
refused to examine instances of punishment individually:
"We think it a misuse of our judicial power to determine, for
example, whether a teacher has acted arbitrarily in paddling
a particular child for certain behavior or whether in a
particular instance of misconduct five licks would have been
a more appropriate punishment than ten licks. . . ." Ibid.
We granted certiorari, limited to the questions of cruel and
unusual punishment and procedural due process. 425 U.S.
990 . 12
II
In addressing the scope of the Eighth Amendment's
prohibition on cruel and unusual punishment, this Court has
found it useful to refer to "[t]raditional common-law
concepts," Powell v. Texas, 392 U.S. 514, 535 (1968)
(plurality opinion), and to the "attitude[s] which our society
has traditionally taken." Id., at 531. So, too, in defining the
requirements [430 U.S. 651, 660] of procedural due
process under the Fifth and Fourteenth Amendments, the
Court has been attuned to what "has always been the law of
the land," United States v. Barnett, 376 U.S. 681, 692
(1964), and to "traditional ideas of fair procedure." Greene v.
McElroy, 360 U.S. 474, 508 (1959). We therefore begin by
examining the way in which our traditions and our laws have
responded to the use of corporal punishment in public
schools.
The use of corporal punishment in this country as a means
of disciplining schoolchildren dates back to the colonial
period. 13 It has survived the transformation of primary and
secondary education from the colonials' reliance on optional
private arrangements to our present system of compulsory
education and dependence on public schools. 14 Despite
the general abandonment of corporal punishment as a
means of punishing criminal offenders, 15 the practice
continues to play a role in the public education of
schoolchildren in most parts of the country. 16 Professional
and public opinion is sharply divided on the practice, 17 and
has been for more than [430 U.S. 651, 661] a century. 18
Yet we can discern no trend toward its elimination.
At common law a single principle has governed the use of
corporal punishment since before the American Revolution:
Teachers may impose reasonable but not excessive force to
discipline a child. 19 Blackstone catalogued among the
"absolute rights of individuals" the right "to security from the
corporal insults of menaces, assaults, beating, and
wounding," 1 W. Blackstone, Commentaries *134, but he did
not regard it a "corporal insult" for a teacher to inflict
"moderate correction" on a child in his care. To the extent
that force was "necessary to answer the purposes for which
[the teacher] is employed," Blackstone viewed it as
"justifiable or lawful." Id., at *453; 3 id., at *120. The basic
doctrine has not changed. The prevalent rule in this country
today privileges such force as a teacher or administrator
"reasonably believes to be necessary for [the child's] proper
control, training, or education." Restatement (Second) of
Torts 147 (2) (1965); see id., 153 (2). To the extent that the
force is excessive or unreasonable, the educator in virtually
all States is subject to possible civil and criminal liability. 20
[430 U.S. 651, 662]
Although the early cases viewed the authority of the teacher
as deriving from the parents, 21 the concept of parental
delegation has been replaced by the view - more consonant
with compulsory education laws - that the State itself may
impose such corporal punishment as is reasonably
necessary "for the proper education of the child and for the
maintenance of group discipline." 1 F. Harper & F. James,
Law of Torts 3.20, p. 292 (1956). 22 All of the circumstances
are to be taken into account in determining whether the
punishment is reasonable in a particular case. Among the
most important considerations are the seriousness of the
offense, the attitude and past behavior of the child, the
nature and severity of the punishment, the age and strength
of the child, and the availability of less severe but equally
effective means of discipline. Id., at 290-291; Restatement
(Second) of Torts 150, Comments c-e, p. 268 (1965).
Of the 23 States that have addressed the problem through
legislation, 21 have authorized the moderate use of corporal
punishment in public schools. 23 Of these States only a few
[430 U.S. 651, 663] have elaborated on the common-law
test of reasonableness, typically providing for approval or
notification of the child's parents, 24 or for infliction of
punishment only by the principal 25 or in the presence of an
adult witness. 26 Only two States, Massachusetts and New
Jersey, have prohibited all corporal punishment in their
public schools. 27 Where the legislatures have not acted, the
state courts have uniformly preserved the common-law rule
permitting teachers to use reasonable force in disciplining
children in their charge. 28
Against this background of historical and contemporary
approval of reasonable corporal punishment, we turn to the
constitutional questions before us. [430 U.S. 651, 664]
III
The Eighth Amendment provides: "Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." Bail, fines, and punishment
traditionally have been associated with the criminal process,
and by subjecting the three to parallel limitations the text of
the Amendment suggests an intention to limit the power of
those entrusted with the criminal-law function of government.
An examination of the history of the Amendment and the
decisions of this Court construing the proscription against
cruel and unusual punishment confirms that it was designed
to protect those convicted of crimes. We adhere to this long-
standing limitation and hold that the Eighth Amendment does
not apply to the paddling of children as a means of
maintaining discipline in public schools.
A
The history of the Eighth Amendment is well known. 29 The
text was taken, almost verbatim, from a provision of the
Virginia Declaration of Rights of 1776, which in turn derived
from the English Bill of Rights of 1689. The English version,
adopted after the accession of William and Mary, was
intended to curb the excesses of English judges under the
reign of James II. Historians have viewed the English
provision as a reaction either to the "Bloody Assize," the
treason trials conducted by Chief Justice Jeffreys in 1685
after the abortive rebellion of the Duke of Monmouth, 30 or
to the perjury prosecution of Titus Oates in the same year.
31 In [430 U.S. 651, 665] either case, the exclusive
concern of the English version was the conduct of judges in
enforcing the criminal law. The original draft introduced in the
House of Commons provided: 32
"The requiring excessive bail of persons committed in
criminal cases and imposing excessive fines, and illegal
punishments, to be prevented."
Although the reference to "criminal cases" was eliminated
from the final draft, the preservation of a similar reference in
the preamble 33 indicates that the deletion was without
substantive significance. Thus, Blackstone treated each of
the provision's three prohibitions as bearing only on criminal
proceedings and judgments. 34
The Americans who adopted the language of this part of the
English Bill of Rights in framing their own State and Federal
Constitutions 100 years later feared the imposition of torture
and other cruel punishments not only by judges acting
beyond their lawful authority, but also by legislatures
engaged in making the laws by which judicial authority would
be measured. Weems v. United States, 217 U.S. 349, 371
-373 (1910). Indeed, the principal concern of the American
Framers appears to have been with the legislative definition
of crimes and punishments. In re Kemmler, 136 U.S. 436,
446 -447 (1890); [430 U.S. 651, 666] Furman v. Georgia,
408 U.S. 238, 263 (1972) (BRENNAN, J., concurring). But if
the American provision was intended to restrain government
more broadly than its English model, the subject to which it
was intended to apply - the criminal process - was the same.
At the time of its ratification, the original Constitution was
criticized in the Massachusetts and Virginia Conventions for
its failure to provide any protection for persons convicted of
crimes. 35 This criticism provided the impetus for inclusion of
the Eighth Amendment in the Bill of Rights. When the Eighth
Amendment was debated in the First Congress, it was met
by the objection that the Cruel and Unusual Punishments
Clause might have the effect of outlawing what were then
the common criminal punishments of hanging, whipping, and
earcropping. 1 Annals of Cong. 754 (1789). The objection
was not heeded, "precisely because the legislature would
otherwise have had the unfettered power to prescribe
punishments for crimes." Furman v. Georgia, supra, at 263.
B v. United States, 356 U.S. 165, 197 (1958) (dissenting
In light of this history, it is not surprising to find that every
decision of this Court considering whether a punishment is
"cruel and unusual" within the meaning of the Eighth and
Fourteenth Amendments has dealt with a criminal
punishment. [430 U.S. 651, 667] See Estelle v. Gamble,
429 U.S. 97 (1976) (incarceration without medical care);
Gregg v. Georgia, 428 U.S. 153 (1976) (execution for
murder); Furman v. Georgia, supra (execution for murder);
Powell v. Texas, 392 U.S. 514 (1968) (plurality opinion) ($20
fine for public drunkenness); Robinson v. California, 370 U.S.
660 (1962) (incarceration as a criminal for addiction to
narcotics); Trop v. Dulles, 356 U.S. 86 (1958) (plurality
opinion) (expatriation for desertion); Louisiana ex rel. Francis
v. Resweber, 329 U.S. 459 (1947) (execution by
electrocution after a failed first attempt); Weems v. United
States, supra (15 years' imprisonment and other penalties
for falsifying an official document); Howard v. Fleming, 191
U.S. 126 (1903) (10 years' imprisonment for conspiracy to
defraud); In re Kemmler, supra (execution by electrocution);
Wilkerson v. Utah, 99 U.S. 130 (1879) (execution by firing
squad); Pervear v. Commonwealth, 5 Wall. 475 (1867) (fine
and imprisonment at hard labor for bootlegging).
These decisions recognize that the Cruel and Unusual
Punishments Clause circumscribes the criminal process in
three ways: First, it limits the kinds of punishment that can
be imposed on those convicted of crimes, e. g., Estelle v.
Gamble supra; Trop v. Dulles, supra; second, it proscribes
punishment grossly disproportionate to the severity of the
crime, e. g., Weems v. United States, supra; and third, it
imposes substantive limits on what can be made criminal
and punished as such, e. g., Robinson v. California, supra.
We have recognized the last limitation as one to be applied
sparingly. "The primary purpose of [the Cruel and Unusual
Punishments Clause] has always been considered, and
properly so, to be directed at the method or kind of
punishment imposed for the violation of criminal
statutes . . . ." Powell v. Texas, supra, at 531-532 (plurality
opinion).
In the few cases where the Court has had occasion to
confront claims that impositions outside the criminal process
constituted cruel and unusual punishment, it has had no
difficulty [430 U.S. 651, 668] finding the Eighth Amendment
inapplicable. Thus, in Fong Yue Ting v. United States, 149
U.S. 698 (1893), the Court held the Eighth Amendment
inapplicable to the deportation of aliens on the ground that
"deportation is not a punishment for crime." Id., at 730; see
Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228
U.S. 585 (1913). And in Uphaus v. Wyman, 360 U.S. 72
(1959), the Court sustained a judgment of civil contempt,
resulting in incarceration pending compliance with a
subpoena, against a claim that the judgment imposed cruel
and unusual punishment. It was emphasized that the case
involved "`essentially a civil remedy designed for the benefit
of other parties . . . exercised for centuries to secure
compliance with judicial decrees.'" Id., at 81, quoting Green
opinion). 36
C school teachers and administrators are privileged at
Petitioners acknowledge that the original design of the Cruel
and Unusual Punishments Clause was to limit criminal
punishments, but urge nonetheless that the prohibition
should be extended to ban the paddling of schoolchildren.
Observing that the Framers of the Eighth Amendment could
not have envisioned our present system of public and
compulsory education, with its opportunities for noncriminal
punishments, petitioners contend that extension of the
prohibition against cruel punishments is necessary lest we
afford greater protection [430 U.S. 651, 669] to criminals
than to schoolchildren. It would be anomalous, they say, if
schoolchildren could be beaten without constitutional
redress, while hardened criminals suffering the same
beatings at the hands of their jailers might have a valid claim
under the Eighth Amendment. See Jackson v. Bishop, 404
F.2d 571 (CA8 1968); cf. Estelle v. Gamble, supra. Whatever
force this logic may have in other settings, 37 we find it an
inadequate basis for wrenching the Eighth Amendment from
its historical context and extending it to traditional
disciplinary practices in the public schools.
The prisoner and the schoolchild stand in wholly different
circumstances, separated by the harsh facts of criminal
conviction and incarceration. The prisoner's conviction
entitles the State to classify him as a "criminal," and his
incarceration deprives him of the freedom "to be with family
and friends and to form the other enduring attachments of
normal life." Morrissey v. Brewer, 408 U.S. 471, 482 (1972);
see Meachum v. Fano, 427 U.S. 215, 224 -225 (1976).
Prison brutality, as the Court of Appeals observed in this
case, is "part of the total punishment to which the individual
is being subjected for his crime and, as such, is a proper
subject for Eighth Amendment scrutiny." 525 F.2d, at 915. 38
Even so, the protection afforded [430 U.S. 651, 670] by the
Eighth Amendment is limited. After incarceration, only the
"`unnecessary and wanton infliction of pain,'" Estelle v.
Gamble, 429 U.S., at 103 , quoting Gregg v. Georgia, 428
U.S., at 173 , constitutes cruel and unusual punishment
forbidden by the Eighth Amendment.
The schoolchild has little need for the protection of the
Eighth Amendment. Though attendance may not always be
voluntary, the public school remains an open institution.
Except perhaps when very young, the child is not physically
restrained from leaving school during school hours; and at
the end of the school day, the child is invariably free to return
home. Even while at school, the child brings with him the
support of family and friends and is rarely apart from
teachers and other pupils who may witness and protest any
instances of mistreatment.
The openness of the public school and its supervision by the
community afford significant safeguards against the kinds of
abuses from which the Eighth Amendment protects the
prisoner. In virtually every community where corporal
punishment is permitted in the schools, these safeguards are
reinforced by the legal constraints of the common law. Public
common law to inflict only such corporal punishment as is
reasonably necessary for the proper education and discipline
of the child; any punishment going beyond the privilege may
result in both civil and criminal liability. See Part II, supra. As
long as the schools are open to public scrutiny, there is no
reason to believe that the common-law constraints will not
effectively remedy and deter excesses such as those alleged
in this case. 39 [430 U.S. 651, 671]
We conclude that when public school teachers or
administrators impose disciplinary corporal punishment, the
Eighth Amendment is inapplicable. The pertinent
constitutional question is whether the imposition is
consonant with the requirements of due process. 40 [430
U.S. 651, 672]
IV
The Fourteenth Amendment prohibits any state deprivation
of life, liberty, or property without due process of law.
Application of this prohibition requires the familiar two-stage
analysis: We must first ask whether the asserted individual
interest are encompassed within the Fourteenth
Amendment's protection of "life, liberty or property"; if
protected interests are implicated, we then must decide what
procedures constitute "due process of law." Morrissey v.
Brewer, 408 U.S., at 481 ; Board of Regents v. Roth, 408
U.S. 564, 569 -572 (1972). See Friendly, Some Kind of
Hearing, 123 U. Pa. L. Rev. 1267 (1975). Following that
analysis here, we find that corporal punishment in public
schools implicates a constitutionally protected liberty
interest, but we hold that the traditional common-law
remedies are fully adequate to afford due process.
A
"[T]he range of interests protected by procedural due
process is not infinite." Board of Regents v. Roth, supra, at
570. We have repeatedly rejected "the notion that any
grievous loss visited upon a person by the State is sufficient
to invoke the procedural protections of the Due Process
Clause." Meachum v. Fano, 427 U.S., at 224 . Due process
is required only when a decision of the State implicates an
interest within the protection of the Fourteenth Amendment.
And "to determine whether due process requirements apply
in the first place, we must look not to the `weight' but to the
nature of the interest at stake." Roth, supra, at 570-571.
The Due Process Clause of the Fifth Amendment, later
incorporated into the Fourteenth, was intended to give
Americans [430 U.S. 651, 673] at least the protection
against governmental power that they had enjoyed as
Englishmen against the power of the Crown. The liberty
preserved from deprivation without due process included the
right "generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness
by free men." Meyer v. Nebraska, 262 U.S. 390, 399 (1923);
see Dent v. West Virginia, 129 U.S. 114, 123 -124 (1889).
Among the historic liberties so protected was a right to be
free from, and to obtain judicial relief for, unjustified
intrusions on personal security. 41
While the contours of this historic liberty interest in the
context of our federal system of government have not been
defined precisely, 42 they always have been thought to
encompass [430 U.S. 651, 674] freedom from bodily
restraint and punishment. See Rochin v. California, 342 U.S.
165 (1952). It is fundamental that the state cannot hold and
physically punish an individual except in accordance with
due process of law.
This constitutionally protected liberty interest is at stake in
this case. There is, of course, a de minimis level of
imposition with which the Constitution is not concerned. But
at least where school authorities, acting under color of state
law, deliberately decide to punish a child for misconduct by
restraining the child and inflicting appreciable physical pain,
we hold that Fourteenth Amendment liberty interests are
implicated. 43
B the common-law privilege.
"[T]he question remains what process is due." Morrissey v.
Brewer, supra, at 481. Were it not for the common-law
privilege permitting teachers to inflict reasonable corporal
punishment on children in their care, and the availability of
the traditional remedies for abuse, the case for requiring
advance procedural safeguards would be strong indeed. 44
But here we deal with a punishment - paddling - within that
tradition, [430 U.S. 651, 675] and the question is whether
the common-law remedies are adequate to afford due
process.
"`[D]ue process,' unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances. . . . Representing a profound attitude of
fairness . . . `due process' is compounded of history, reason,
the past course of decisions, and stout confidence in the
strength of the democratic faith which we profess. . . ." Anti-
Fascist Comm. v. McGrath, 341 U.S. 123, 162 -163 (1951)
(Frankfurter, J., concurring).
Whether in this case the common-law remedies for
excessive corporal punishment constitute due process of law
must turn on an analysis of the competing interests at stake,
viewed against the background of "history, reason, [and] the
past course of decisions." The analysis requires
consideration of three distinct factors: "First, the private
interest that will be affected . . .; second, the risk of an
erroneous deprivation of such interest . . . and the probable
value, if any, of additional or substitute procedural
safeguards; and finally, the [state] interest, including the
function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement
would entail." Mathews v. Eldridge, 424 U.S. 319, 335
(1976). Cf. Arnett v. Kennedy, 416 U.S. 134, 167 -168 (1974)
(POWELL, J., concurring).
1 Although students have testified in this case to specific
Because it is rooted in history, the child's liberty interest in
avoiding corporal punishment while in the care of public
school authorities is subject to historical limitations. Under
the common law, an invasion of personal security gave rise
to a right to recover damages in a subsequent judicial
proceeding. 3 W. Blackstone, Commentaries *120-121. But
the right of recovery was qualified by the concept of
justification. Thus, there could be no recovery against a
teacher who gave only "moderate correction" to a child. Id.,
at *120. To the [430 U.S. 651, 676] extent that the force
used was reasonable in light of its purpose, it was not
wrongful, but rather "justifiable or lawful." Ibid.
The concept that reasonable corporal punishment in school
is justifiable continues to be recognized in the laws of most
States. See Part II, supra. It represents "the balance struck
by this country," Poe v. Ullman, 367 U.S. 497, 542 (1961)
(Harlan, J., dissenting), between the child's interest in
personal security and the traditional view that some limited
corporal punishment may be necessary in the course of a
child's education. Under that longstanding accommodation of
interests, there can be no deprivation of substantive rights as
long as disciplinary corporal punishment is within the limits of
This is not to say that the child's interest in procedural
safeguards is insubstantial. The school disciplinary process
is not "a totally accurate, unerring process, never mistaken
and never unfair. . . ." Goss v. Lopez, 419 U.S. 565, 579 -580
(1975). In any deliberate infliction of corporal punishment on
a child who is restrained for that purpose, there is some risk
that the intrusion on the child's liberty will be unjustified and
therefore unlawful. In these circumstances the child has a
strong interest in procedural safeguards that minimize the
risk of wrongful punishment and provide for the resolution of
disputed questions of justification.
We turn now to a consideration of the safeguards that are
available under applicable Florida law.
2 person without probable cause, the risk that police will act
Florida has continued to recognize, and indeed has
strengthened by statute, the common-law right of a child not
to be subjected to excessive corporal punishment in school.
Under Florida law the teacher and principal of the school
decide in the first instance whether corporal punishment is
reasonably necessary under the circumstances in order to
discipline [430 U.S. 651, 677] a child who has misbehaved.
But they must exercise prudence and restraint. For Florida
has preserved the traditional judicial proceedings for
determining whether the punishment was justified. If the
punishment inflicted is later found to have been excessive -
not reasonably believed at the time to be necessary for the
child's discipline or training - the school authorities inflicting it
may be held liable in damages to the child and, if malice is
shown, they may be subject to criminal penalties. 45
instances of abuse, there is every reason to believe that
such mistreatment is an aberration. The uncontradicted
evidence suggests that corporal punishment in the Dade
County schools was, "[w]ith the exception of a few cases, . . .
unremarkable in physical severity." App. 147. Moreover,
because paddlings are usually inflicted in response to
conduct directly [430 U.S. 651, 678] observed by teachers
in their presence, the risk that a child will be paddled without
cause is typically insignificant. In the ordinary case, a
disciplinary paddling neither threatens seriously to violate
any substantive rights nor condemns the child "to suffer
grievous loss of any kind." Anti-Fascist Comm. v. McGrath,
341 U.S., at 168 (Frankfurter, J., concurring).
In those cases where severe punishment is contemplated,
the available civil and criminal sanctions for abuse -
considered in light of the openness of the school
environment - afford significant protection against unjustified
corporal punishment. See supra, at 670. Teachers and
school authorities are unlikely to inflict corporal punishment
unnecessarily or excessively when a possible consequence
of doing so is the institution of civil or criminal proceedings
against them. 46
It still may be argued, of course, that the child's liberty
interest would be better protected if the common-law
remedies were supplemented by the administrative
safeguards of prior notice and a hearing. We have found
frequently that some kind of prior hearing is necessary to
guard against arbitrary impositions on interests protected by
the Fourteenth Amendment. [430 U.S. 651, 679] See, e. g.,
Board of Regents v. Roth, 408 U.S., at 569 -570; Wolff v.
McDonnell, 418 U.S. 539, 557 -558 (1974); cf. Friendly, 123
U. Pa. L. Rev., at 1275-1277. But where the State has
preserved what "has always been the law of the land,"
United States v. Barnett, 376 U.S. 681 (1964), the case for
administrative safeguards is significantly less compelling. 47
There is a relevant analogy in the criminal law. Although the
Fourth Amendment specifically proscribes "seizure" of a
unreasonably in arresting a suspect is not thought to require
an advance determination of the facts. In United States v.
Watson, 423 U.S. 411 (1976), we reaffirmed the traditional
common-law rule that police officers may make warrantless
public arrests on probable cause. Although we observed that
an advance determination of probable cause by a magistrate
would be desirable, we declined "to transform this judicial
preference into a constitutional rule when the judgment of
the Nation and Congress has for so long been to authorize
warrantless public arrests on probable cause . . . ." Id., at
423; see id., at 429 (POWELL, J., concurring). Despite the
distinct possibility that a police officer may improperly assess
the facts and thus unconstitutionally deprive an individual of
[430 U.S. 651, 680] liberty, we declined to depart from the
traditional rule by which the officer's perception is subjected
to judicial scrutiny only after the fact. 48 There is no more
reason to depart from tradition and require advance
procedural safeguards for intrusions on personal security to
which the Fourth Amendment does not apply.
3 that may result in violation of a schoolchild's substantive
But even if the need for advance procedural safeguards
were clear, the question would remain whether the
incremental benefit could justify the cost. Acceptance of
petitioners' claims would work a transformation in the law
governing corporal punishment in Florida and most other
States. Given the impracticability of formulating a rule of
procedural due process that varies with the severity of the
particular imposition, 49 the prior hearing petitioners seek
would have to precede any paddling, however moderate or
trivial.
Such a universal constitutional requirement would
significantly burden the use of corporal punishment as a
disciplinary measure. Hearings - even informal hearings -
require time, personnel, and a diversion of attention from
normal school pursuits. School authorities may well choose
to abandon corporal punishment rather than incur the
burdens of complying with the procedural requirements.
Teachers, properly concerned with maintaining authority in
the classroom, may well prefer to rely on other disciplinary
measures - which they may view as less effective - rather
than confront the [430 U.S. 651, 681] possible disruption
that prior notice and a hearing may entail. 50 Paradoxically,
such an alteration of disciplinary policy is most likely to occur
in the ordinary case where the contemplated punishment is
well within the common-law privilege. 51
Elimination or curtailment of corporal punishment would be
welcomed by many as a societal advance. But when such a
policy choice may result from this Court's determination of an
asserted right to due process, rather than from the normal
processes of community debate and legislative action, the
societal costs cannot be dismissed as insubstantial. 52 We
are reviewing here a legislative judgment, rooted in history
and reaffirmed in the laws of many States, that corporal
punishment serves important educational interests. This
judgment must be viewed in light of the disciplinary problems
common-place in the schools. As noted in Goss v. Lopez,
419 U.S., at 580 : "Events calling for discipline are frequent
occurrences and sometimes require immediate, effective
action." 53 Assessment [430 U.S. 651, 682] of the need for,
and the appropriate means of maintaining, school discipline
is committed generally to the discretion of school authorities
subject to state law. "[T]he Court has repeatedly emphasized
the need for affirming the comprehensive authority of the
States and of school officials, consistent with fundamental
constitutional safeguards, to prescribe and control conduct in
the schools." Tinker v. Des Moines School Dist., 393 U.S.
503, 507 (1969). 54
"At some point the benefit of an additional safeguard to the
individual affected . . . and to society in terms of increased
assurance that the action is just, may be outweighed by the
cost." Mathews v. Eldridge, 424 U.S., at 348 . We think that
point has been reached in this case. In view of the low
incidence of abuse, the openness of our schools, and the
common-law safeguards that already exist, the risk of error
rights can only be regarded as minimal. Imposing additional
administrative safeguards as a constitutional requirement
might reduce that risk marginally, but would also entail a
significant intrusion into an area of primary educational
responsibility. We conclude that the Due Process Clause
does not require notice and a hearing prior to the imposition
of corporal punishment in the public schools, as that practice
is authorized and limited by the common law. 55 [430 U.S.
651, 683]
V teacher in charge of the school, and in no case shall such
Petitioners cannot prevail on either of the theories before us
in this case. The Eighth Amendment's prohibition against
cruel and unusual punishment is inapplicable to school
paddlings, and the Fourteenth Amendment's requirement of
procedural due process is satisfied by Florida's preservation
of common-law constraints and remedies. We therefore
agree with the Court of Appeals that petitioners' evidence
affords no basis for injunctive relief, and that petitioners
cannot recover damages on the basis of any Eighth
Amendment or procedural due process violation.
Affirmed.
Footnotes
[ Footnote 1 ] As Ingraham and Andrews were minors, the
complaint was filed in the names of Eloise Ingraham, James'
mother, and Willie Everett, Roosevelt's father.
[ Footnote 2 ] The District Court certified the class, under
Fed. Rules Civ. Proc. 23 (b) (2) and (c) (1), as follows: "`All
students of the Dade County School system who are subject
to the corporal punishment policies issued by the Defendant,
Dade County School Board . . . .'" App. 17. One student was
specifically excepted from the class by request.
[ Footnote 3 ] The complaint also named the Dade County
School Board as a defendant, but the Court of Appeals held
that the Board was not amenable to suit under 42 U.S.C.
1981-1988 and dismissed the suit against the Board for want
of jurisdiction. 525 F.2d 909, 912 (CA5 1976). This aspect of
the Court of Appeals' judgment is not before us.
[ Footnote 4 ] Petitioners had waived their right to jury trial on
the claims for damages in counts one and two, but
respondents had not. The District Court proceeded initially to
hear evidence only on count three, the claim for injunctive
relief. At the close of petitioners' case, however, the parties
agreed that the evidence offered on count three (together
with certain stipulated testimony) would be considered, for
purposes of a motion for directed verdict, as if it had also
been offered on counts one and two. It was understood that
respondents could reassert a right to jury trial if the motion
were denied. App. 142.
[ Footnote 5 ] The evidence does not show how many of the
schools actually employed corporal punishment as a means
of maintaining discipline. The authorization of the practice by
the School Board extended to 231 of the schools in the
1970-1971 school year, but at least 10 of those schools did
not administer corporal punishment as a matter of school
policy. Id., at 137-139.
[ Footnote 6 ] In the 1970-1971 school year, 232.27
provided: "Each teacher or other member of the staff of any
school shall assume such authority for the control of pupils
as may be assigned to him by the principal and shall keep
good order in the classroom and in other places in which he
is assigned to be in charge of pupils, but he shall not inflict
corporal punishment before consulting the principal or
punishment be degrading or unduly severe in its nature. . . ."
Effective July 1, 1976, the Florida Legislature amended the
law governing corporal punishment. Section 232.27 now
reads: "Subject to law and to the rules of the district school
board, each teacher or other member of the staff of any
school shall have such authority for the control and discipline
of students as may be assigned to him by the principal or his
designated representative and shall keep good order in the
classroom and in other places in which he is assigned to be
in charge of students. If a teacher feels that corporal
punishment is necessary, at least the following procedures
shall be followed: "(1) The use of corporal punishment shall
be approved in principle by the principal before it is used, but
approval is not necessary for each specific instance in which
it is used. "(2) A teacher or principal may administer corporal
punishment only in the presence of another adult who is
informed beforehand, and in the student's presence, of the
reason for the punishment. "(3) A teacher or principal who
has administered punishment shall, [430 U.S. 651, 656]
upon request, provide the pupil's parent or guardian with a
written explanation of the reason for the punishment and the
name of the other [adult] who was present." Fla. Stat. Ann.
232.27 (1977) (codifier's notation omitted). Corporal
punishment is now defined as "the moderate use of physical
force or physical contact by a teacher or principal as may be
necessary to maintain discipline or to enforce school rules."
228.041 (28). The local school boards are expressly
authorized to adopt rules governing student conduct and
discipline and are directed to make available codes of
student conduct. 230.23 (6). Teachers and principals are
given immunity from civil and criminal liability for enforcing
disciplinary rules, "[e]xcept in the case of excessive force or
cruel and unusual punishment . . . ." 232.275.
[ Footnote 7 ] In the 1970-1971 school year, Policy 5144
authorized corporal punishment where the failure of other
means of seeking cooperation from the student made its use
necessary. The regulation specified that the principal should
determine the necessity for corporal punishment, that the
student should understand the seriousness of the offense
and the reason for the punishment, and that the punishment
should be administered in the presence of another adult in
circumstances not calculated to hold the student up to
shame or ridicule. The regulation cautioned against using
corporal punishment against a student under psychological
or medical treatment, and warned that the person
administering the punishment "must realize his own personal
liabilities" in any case of physical injury. App. 15. While this
litigation was pending in the District Court, the Dade County
School Board amended Policy 5144 to standardize the size
of the paddles used in accordance with the description in the
text, to proscribe striking a child with a paddle elsewhere
than on the buttocks, to limit the permissible number of
"licks" (five for elementary and intermediate grades and
seven for junior and senior grades), and to require a
contemporaneous explanation of the need for the
punishment to the student and a subsequent notification to
the parents. App. 126-128.
[ Footnote 8 ] 498 F.2d 248, 255, and n. 7 (1974) (original
panel opinion), vacated on rehearing, 525 F.2d 909 (1976);
App. 48, 138, 146; Exhibits 14, 15.
[ Footnote 9 ] Stedman's Medical Dictionary (23d ed. 1976)
defines "hematoma" as "[a] localized mass of extravasated
blood that is relatively or completely confined within an organ
or tissue . . .; the blood is usually clotted (or partly clotted),
and, depending on how long it has been there, may manifest
various degrees of organization and decolorization."
[ Footnote 10 ] App. 3-4, 18-20, 68-85, 129-136.
[ Footnote 11 ] Id., at 4-5, 104-113. The similar experiences
of several other students at Drew, to which they individually
testified in the District Court, are summarized in the original
panel opinion in the Court of Appeals, 498 F.2d, at 257-259.
[ Footnote 12 ] We denied review of a third question
presented in the petition for certiorari: "Is the infliction of
severe corporal punishment upon public school students
arbitrary, capricious and unrelated to achieving any
legitimate educational purpose and therefore violative of the
Due Process Clause of the Fourteenth Amendment?" Pet.
for Cert. 2.
[ Footnote 13 ] See H. Falk, Corporal Punishment 11-48
(1941); N. Edwards & H. Richey, The School in the American
Social Order 115-116 (1947).
[ Footnote 14 ] Public and compulsory education existed in
New England before the Revolution, see id., at 50-68, 78-81,
97-113, but the demand for free public schools as we now
know them did not gain momentum in the country as a whole
until the mid-1800's, and it was not until 1918 that
compulsory school attendance laws were in force in all the
States. See Brown v. Board of Education, 347 U.S. 483, 489
n. 4 (1954), citing Cubberley, Public Education in the United
States 408-423, 563-565 (1934 ed.); cf. Wisconsin v. Yoder,
406 U.S. 205, 226 , and n. 15 (1972).
[ Footnote 15 ] See Jackson v. Bishop, 404 F.2d 571, 580
(CA8 1968); Falk, supra, at 85-88.
[ Footnote 16 ] See K. Larson & M. Karpas, Effective
Secondary School Discipline 146 (1963); A. Reitman, J.
Follman, & E. Ladd, Corporal Punishment in the Public
Schools 2-5 (ACLU Report 1972).
[ Footnote 17 ] For samplings of scholarly opinion on the use
of corporal punishment in the schools, see F. Reardon & R.
Reynolds, Corporal Punishment in [430 U.S. 651, 661]
Pennsylvania 1-2, 34 (1975); National Education
Association, Report of the Task Force on Corporal
Punishment (1972); K. James, Corporal Punishment in the
Public Schools 8-16 (1963). Opinion surveys taken since
1970 have consistently shown a majority of teachers and of
the general public favoring moderate use of corporal
punishment in the lower grades. See Reardon & Reynolds,
supra, at 2, 23-26; Delaware Department of Public
Instruction, Report on the Corporal Punishment Survey 48
(1974); Reitman, Follman, & Ladd, supra, at 34-35; National
Education Association, supra, at 7.
[ Footnote 18 ] See Falk, supra, 66-69; cf. Cooper v.
McJunkin, 4 Ind. 290 (1853).
[ Footnote 19 ] See 1 F. Harper & F. James, Law of Torts
3.20, pp. 288-292 (1956); Proehl, Tort Liability of Teachers,
12 Vand. L. Rev. 723, 734-738 (1959); W. Prosser, Law of
Torts 136-137 (4th ed. 1971).
[ Footnote 20 ] See cases cited n. 28, infra. The criminal
codes of many States include provisions explicitly
recognizing the teacher's common-law privilege [430 U.S.
651, 662] to inflict reasonable corporal punishment. E. g.,
Ariz. Rev. Stat. Ann. 13-246 (A) (1) (1956); Conn. Gen. Stat.
53a-18 (1977); Neb. Rev. Stat. 28-840 (2) (1975); N. Y.
Penal Law 35.10 (McKinney 1975 and Supp. 1976); Ore.
Rev. Stat. 161.205 (1) (1975).
[ Footnote 21 ] See Proehl, supra, at 726, and n. 13.
[ Footnote 22 ] Today, corporal punishment in school is
conditioned on parental approval only in California. Cal.
Educ. Code 49001 (West Supp. 1977). Cf. Morrow v. Wood,
35 Wis. 59 (1874). This Court has held in a summary
affirmance that parental approval of corporal punishment is
not constitutionally required. Baker v. Owen, 423 U.S. 907
(1975), aff'g 395 F. Supp. 294 (MDNC).
[ Footnote 23 ] Cal. Educ. Code 49000-49001 (West Supp.
1977); Del. Code Ann., Tit. 14, 701 (Supp. 1976); Fla. Stat.
Ann. 232.27 (1977); Ga. Code Ann. 32-835, 32-836 (1976);
Haw. Rev. Stat. 298-16 (1975 Supp.), 703-309 (2) (Spec.
Pamphlet 1975); Ill. Ann. Stat., c. 122, 24-24, 34-84a (1977
Supp.); Ind. Code Ann. 20-8.1-5-2 (1975); Md. Ann. Code,
Art. 77, 98B (1975) (in specified counties); Mich. Comp.
Laws Ann., 340.756 [430 U.S. 651, 663] (1970); Mont. Rev.
Codes Ann. 75-6109 (1971); Nev. Rev. Stat. 392.465 (1973);
N.C. Gen. Stat. 115-146 (1975); Ohio Rev. Code Ann.
3319.41 (1972); Okla. Stat. Ann., Tit. 70, 6-114 (1972); Pa.
Stat. Ann., Tit. 24, 13-1317 (Supp. 1976); S. C. Code 59-63-
260 (1977); S. D. Compiled Laws Ann. 13-32-2 (1975); Vt.
Stat. Ann., Tit. 16, 1161 (Supp. 1976); Va. Code Ann. 22-
231.1 (1973); W. Va. Code, 18A-5-1 (1977); Wyo. Stat. 21.1-
64 (Supp. 1975).
[ Footnote 24 ] Cal. Educ. Code 49001 (West Supp. 1977)
(requiring prior parental approval in writing); Fla. Stat. Ann.
232.27 (3) (1977) (requiring a written explanation on
request); Mont. Rev. Codes Ann. 75-6109 (1971) (requiring
prior parental notification).
[ Footnote 25 ] Md. Ann. Code, Art. 77, 98B (1975).
[ Footnote 26 ] Fla. Stat. Ann. 232.27 (1977); Haw. Rev.
Stats. 298-16 (1975 Supp.); Mont. Rev. Codes Ann. 75-6109
(1971).
[ Footnote 27 ] Mass. Gen. Laws Ann., c. 71, 37G (Supp.
1976); N. J. Stat. Ann. 18A: 6-1 (1968).
[ Footnote 28 ] E. g., Suits v. Glover, 260 Ala. 449, 71 So.2d
49 (1954); La Frentz v. Gallagher, 105 Ariz. 255, 462 P.2d
804 (1969); Berry v. Arnold School Dist., 199 Ark. 1118, 137
S. W. 2d 256 (1940); Andreozzi v. Rubano, 145 Conn. 280,
141 A. 2d 639 (1958); Tinkham v. Kole, 252 Iowa 1303, 110
N. W. 2d 258 (1961); Carr v. Wright, 423 S. W. 2d 521 (Ky.
1968); Christman v. Hickman, 225 Mo. App. 828, 37 S. W. 2d
672 (1931); Simms v. School Dist. No. 1, 13 Ore. App. 119,
508 P.2d 236 (1973); Marlar v. Bill, 181 Tenn. 100, 178 S. W.
2d 634 (1944); Prendergast v. Masterson, 196 S. W. 246
(Tex. Civ. App. 1917). See generally sources cited n. 19,
supra.
[ Footnote 29 ] See Gregg v. Georgia, 428 U.S. 153, 168
-173 (1976) (joint opinion of STEWART, POWELL, and
STEVENS, JJ.) (hereinafter joint opinion); Furman v.
Georgia, 408 U.S. 238, 316 -328 (1972) (MARSHALL, J.,
concurring); Granucci, "Nor Cruel and Unusual Punishments
Inflicted:" The Original Meaning, 57 Calif. L. Rev. 839 (1969).
[ Footnote 30 ] See I. Brant, The Bill of Rights 155 (1965).
[ Footnote 31 ] See Granucci, supra, at 852-860.
[ Footnote 32 ] Id., at 855.
[ Footnote 33 ] The preamble reads in part: "WHEREAS the
late King James the Second, by the assistance of divers evil
counsellors, judges, and ministers employed by him, did
endeavor to subvert and extirpate . . . the laws and liberties
of this kingdom. . . . "10. And excessive bail hath been
required of persons committed in criminal cases, to elude the
benefit of the laws made for the liberty of the subjects. "11.
And excessive fines have been imposed; and illegal and
cruel punishments inflicted. . . ." R. Perry & J. Cooper,
Sources of Our Liberties 245-246 (1959).
[ Footnote 34 ] 4 W. Blackstone, Commentaries *297 (bail),
*379 (fines and other punishments).
[ Footnote 35 ] Abraham Holmes of Massachusetts
complained specifically of the absence of a provision
restraining Congress in its power to determine "what kind of
punishments shall be inflicted on persons convicted of
crimes." 2 J. Elliot, Debates on the Federal Constitution 111
(1876). Patrick Henry was of the same mind: "What says our
[Virginia] bill of rights? - `that excessive bail ought not to be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.' Are you not, therefore, now calling on
those gentlemen who are to compose Congress, to
prescribe trials and define punishments without this control?
Will they find sentiments there similar to this bill of rights?
You let them loose; you do more - you depart from the
genius of your country. . . ." 3 id., at 447.
[ Footnote 36 ] In urging us to extend the Eighth Amendment
to ban school paddlings, petitioners rely on the many
decisions in which this Court has held that the prohibition
against "cruel and unusual" punishments is not "`fastened to
the obsolete but may acquire meaning as public opinion
becomes enlightened by a humane justice.'" Gregg v.
Georgia, 428 U.S., at 171 (joint opinion); see, e. g., Trop v.
Dulles, 356 U.S., 86, 100-101 (1958) (plurality opinion);
Weems v. United States, 217 U.S. 349, 373 , 378 (1910).
This reliance is misplaced. Our Eighth Amendment decisions
have referred to "evolving standards of decency," Trop v.
Dulles, supra, at 101, only in determining whether criminal
punishments are "cruel and unusual" under the Amendment.
[ Footnote 37 ] Some punishments, though not labeled
"criminal" by the State, may be sufficiently analogous to
criminal punishments in the circumstances in which they are
administered to justify application of the Eighth Amendment.
Cf. In re Gault, 387 U.S. 1 (1967). We have no occasion in
this case, for example, to consider whether or under what
circumstances persons involuntarily confined in mental or
juvenile institutions can claim the protection of the Eighth
Amendment.
[ Footnote 38 ] Judge Friendly similarly has observed that
the Cruel and Unusual Punishments Clause "can fairly be
deemed to be applicable to the manner in which an
otherwise constitutional sentence . . . is carried out by an
executioner, see Louisiana ex rel. Francis v. Resweber, 329
U.S. 459 . . . (1947), or to cover conditions of confinement
which may make intolerable an otherwise constitutional term
of imprisonment." Johnson v. Glick, 481 F.2d 1028, 1032
(CA2), cert. denied, 414 U.S. 1033 (1973) (citation omitted).
[ Footnote 39 ] Putting history aside as irrelevant, the
dissenting opinion of MR. JUSTICE WHITE argues that a
"purposive analysis" should control the reach of the Eighth
Amendment. Post, at 686-688. There is no support whatever
for this approach in the decisions of this Court. Although an
imposition must be "punishment" for the Cruel and Unusual
Punishments Clause to apply, the Court has never held that
all punishments are subject to Eighth Amendment scrutiny.
See n. 40, infra. The [430 U.S. 651, 671] applicability of the
Eighth Amendment always has turned on its original
meaning, as demonstrated by its historical derivation. See
Gregg v. Georgia, 428 U.S., at 169 -173 (joint opinion);
Furman v. Georgia, 408 U.S., at 315 -328 (MARSHALL, J.,
concurring). The dissenting opinion warns that as a
consequence of our decision today, teachers may "cut off a
child's ear for being late to class." Post, at 684. This rhetoric
bears no relation to reality or to the issues presented in this
case. The laws of virtually every State forbid the excessive
physical punishment of schoolchildren. Yet the logic of the
dissent would make the judgment of which disciplinary
punishments are reasonable and which are excessive a
matter of constitutional principle in every case, to be decided
ultimately by this Court. The hazards of such a broad
reading of the Eighth Amendment are clear. "It is always time
to say that this Nation is too large, too complex and
composed of too great a diversity of peoples for any one of
us to have the wisdom to establish the rules by which local
Americans must govern their local affairs. The constitutional
rule we are urged to adopt is not merely revolutionary - it
departs from the ancient faith based on the premise that
experience in making local laws by local people themselves
is by far the safest guide for a nation like ours to follow."
Powell v. Texas, 392 U.S. 514, 547 -548 (1968) (opinion of
Black, J.).
[ Footnote 40 ] Eighth Amendment scrutiny is appropriate
only after the State has complied with the constitutional
guarantees traditionally associated with criminal
prosecutions. See United States v. Lovett, 328 U.S. 303, 317
-318 (1946). Thus, in Trop v. Dulles, 356 U.S. 86 (1958), the
plurality appropriately took the view that denationalization
was an impermissible punishment for wartime desertion
under the Eighth Amendment, because desertion already
had been established at a criminal trial. But in Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963), where the Court
considered denationalization as a punishment for evading
the draft, the Court refused to reach the Eighth Amendment
issue, holding instead that the punishment could be imposed
only through the criminal process. Id., at 162-167, 186, and
n. 43. As these cases demonstrate, the State does not
acquire the power to punish with which the Eighth
Amendment is concerned until after [430 U.S. 651, 672] it
has secured a formal adjudication of guilt in accordance with
due process of law. Where the State seeks to impose
punishment without such an adjudication, the pertinent
constitutional guarantee is the Due Process Clause of the
Fourteenth Amendment.
[ Footnote 41 ] See 1 W. Blackstone, Commentaries *134.
Under the 39th Article of the Magna Carta, an individual
could not be deprived of this right of personal security
"except by the legal judgment of his peers or by the law of
the land." Perry & Cooper, supra, n. 33, at 17. By
subsequent enactments of Parliament during the time of
Edward III, the right was protected from deprivation except
"by due process of law." See Shattuck, The True Meaning of
the Term "Liberty," 4 Harv. L. Rev. 365, 372-373 (1891).
[ Footnote 42 ] See, e. g., Skinner v. Oklahoma, 316 U.S.
535, 541 (1942) (sterilization); Jacobson v. Massachusetts,
197 U.S. 11 (1905) (vaccination); Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251 -252 (1891) (physical
examinations); cf. ICC v. Brimson, 154 U.S. 447, 479 (1894).
The right of personal security is also protected by the Fourth
Amendment, which was made applicable to the States
through the Fourteenth because its protection was viewed as
"implicit in `the concept of ordered liberty' . . . enshrined in
the history and the basic constitutional documents of
English-speaking peoples." Wolf v. Colorado, 338 U.S. 25,
27 -28 (1949). It has been said of the Fourth Amendment
that its "overriding function . . . is to protect personal privacy
and dignity against unwarranted intrusion by the State."
Schmerber v. California, 384 U.S. 757, 767 (1966). But the
principal concern of that Amendment's prohibition against
unreasonable searches and seizures is with intrusions on
privacy in the course of criminal investigations. See Whalen
v. Roe, 429 U.S. 589, 604 n. 32 (1977). Petitioners do not
contend that the Fourth Amendment applies, according to its
terms, to corporal punishment in public school.
[ Footnote 43 ] Unlike Goss v. Lopez, 419 U.S. 565 (1975),
this case does not involve the state-created property interest
in public education. The purpose of corporal punishment is
to correct a child's behavior without interrupting his
education. That corporal punishment may, in a rare case,
have the unintended effect of temporarily removing a child
from school affords no basis for concluding that the practice
itself deprives students of property protected by the
Fourteenth Amendment. Nor does this case involve any
state-created interest in liberty going beyond the Fourteenth
Amendment's protection of freedom from bodily restraint and
corporal punishment. Cf. Meachum v. Fano, 427 U.S. 215,
225 -227 (1976).
[ Footnote 44 ] If the common-law privilege to inflict
reasonable corporal punishment in school were inapplicable,
it is doubtful whether any procedure short of a trial in a
criminal or juvenile court could satisfy the requirements of
procedural due process for the imposition of such
punishment. See United States v. Lovett, 328 U.S., at 317
-318; cf. Breed v. Jones, 421 U.S. 519, 528 -529 (1975).

[ Footnote 45 ] See supra, at 655-657, 661. The statutory
prohibition against "degrading" or unnecessarily "severe"
corporal punishment in former 232.27 has been construed
as a statement of the common-law principle. See 1937 Op.
Fla. Atty. Gen., Biennial Report of the Atty. Gen. 169 (1937-
1938); cf. 1957 Op. Fla. Atty. Gen., Biennial Report of the
Atty. Gen. 7, 8 (1957-1958). Florida Stat. Ann. 827.03 (3)
(1976) makes malicious punishment of a child a felony. Both
the District Court, App. 144, and the Court of Appeals, 525
F.2d, at 915, expressed the view that the common-law tort
remedy was available to the petitioners in this case. And
petitioners conceded in this Court that a teacher who inflicts
excessive punishment on a child may be held both civilly and
criminally liable under Florida law. Brief for Petitioners 33 n.
11, 34; Tr. of Oral Arg. 17, 52-53. In view of the statutory
adoption of the common-law rule, and the unanimity of the
parties and the courts below, the doubts expressed in MR.
JUSTICE WHITE's dissenting opinion as to the availability of
tort remedies in Florida can only be viewed as chimerical.
The dissent makes much of the fact that no Florida court has
ever "recognized" a damages remedy for unreasonable
corporal punishment. Post, at 694 n. 11, 700. But the
absence of reported Florida decisions hardly suggests that
no remedy is available. Rather, it merely confirms the
commonsense judgment that excessive corporal punishment
is exceedingly rare in the public schools.
[ Footnote 46 ] The low incidence of abuse, and the
availability of established judicial remedies in the event of
abuse, distinguish this case from Goss v. Lopez, 419 U.S.
565 (1975). The Ohio law struck down in Goss provided for
suspensions from public school of up to 10 days without "any
written procedure applicable to suspensions." Id., at 567.
Although Ohio law provided generally for administrative
review, Ohio Rev. Code Ann. 2506.01 (Supp. 1973), the
Court assumed that the short suspensions would not be
stayed pending review, with the result that the review
proceeding could serve neither a deterrent nor a remedial
function. 419 U.S., at 581 n. 10. In these circumstances, the
Court held the law authorizing suspensions unconstitutional
for failure to require "that there be at least an informal give-
and-take between student and disciplinarian, preferably prior
to the suspension . . . ." Id., at 584. The subsequent civil and
criminal proceedings available in this case may be viewed as
affording substantially greater protection to the child than the
informal conference mandated by Goss.
[ Footnote 47 ] "[P]rior hearings might well be dispensed with
in many circumstances in which the state's conduct, if not
adequately justified, would constitute a common-law tort.
This would leave the injured plaintiff in precisely the same
posture as a common-law plaintiff, and this procedural
consequence would be quite harmonious with the
substantive view that the fourteenth amendment
encompasses the same liberties as those protected by the
common law." Monaghan, Of "Liberty" and "Property," 62
Cornell L. Rev. 405, 431 (1977) (footnote omitted). See
Bonner v. Coughlin, 517 F.2d 1311, 1319 (CA7 1975),
modified en banc, 545 F.2d 565 (1976), cert. pending, No.
76-6204. We have no occasion in this case, see supra, at
659, and n. 12, to decide whether or under what
circumstances corporal punishment of a public school child
may give rise to an independent federal cause of action to
vindicate substantive rights under the Due Process Clause.
[ Footnote 48 ] See also Terry v. Ohio, 392 U.S. 1 (1968).
The reasonableness of a warrantless public arrest may be
subjected to subsequent judicial scrutiny in a civil action
against the law enforcement officer or in a suppression
hearing to determine whether any evidence seized in the
arrest may be used in a criminal trial.
[ Footnote 49 ] "[P]rocedural due process rules are shaped
by the risk of error inherent in the truthfinding process as
applied to the generality of cases, not the rare exceptions. . .
." Mathews v. Eldridge, 424 U.S. 319, 344 (1976).
[ Footnote 50 ] If a prior hearing, with the inevitable attendant
publicity within the school, resulted in rejection of the
teacher's recommendation, the consequent impairment of
the teacher's ability to maintain discipline in the classroom
would not be insubstantial.
[ Footnote 51 ] The effect of interposing prior procedural
safeguards may well be to make the punishment more
severe by increasing the anxiety of the child. For this reason,
the school authorities in Dade County found it desirable that
the punishment be inflicted as soon as possible after the
infraction. App. 48-49.
[ Footnote 52 ] "It may be true that procedural regularity in
disciplinary proceedings promotes a sense of institutional
rapport and open communication, a perception of fair
treatment, and provides the offender and his fellow students
a showcase of democracy at work. But . . . [r]espect for
democratic institutions will equally dissipate if they are
thought too ineffectual to provide their students an
environment of order in which the educational process may
go forward. . . ." Wilkinson, Goss v. Lopez: The Supreme
Court as School Superintendent, 1975 Sup. Ct. Rev. 25, 71-
72.
[ Footnote 53 ] The seriousness of the disciplinary problems
in the Nation's public schools has been documented in a
recent congressional report, Senate Committee on the
Judiciary, Subcommittee to Investigate Juvenile [430 U.S.
651, 682] Delinquency, Challenge for the Third Century:
Education in a Safe Environment - Final Report on the
Nature and Prevention of School Violence and Vandalism,
95th Cong., 1st Sess. (Comm. Print 1977).
[ Footnote 54 ] The need to maintain order in a trial
courtroom raises similar problems. In that context, this Court
has recognized the power of the trial judge "to punish
summarily and without notice or hearing contemptuous
conduct committed in his presence and observed by him."
Taylor v. Hayes, 418 U.S. 488, 497 (1974), citing Ex parte
Terry, 128 U.S. 289 (1888). The punishment so imposed may
be as severe as six months in prison. See Codispoti v.
Pennsylvania, 418 U.S. 506, 513 -515 (1974); cf. Muniz v.
Hoffman, 422 U.S. 454, 475 -476 (1975).
[ Footnote 55 ] MR. JUSTICE WHITE'S dissenting opinion
offers no manageable standards for determining what
process is due in any particular case. The [430 U.S. 651,
683] dissent apparently would require, as a general rule,
only "an informal give-and-take between student and
disciplinarian." Post, at 693. But the dissent would depart
from these "minimal procedures" - requiring even witnesses,
counsel, and cross-examination - in cases where the
punishment reaches some undefined level of severity. Post,
at 700 n. 18. School authorities are left to guess at the
degree of punishment that will require more than an
"informal give-and-take" and at the additional process that
may be constitutionally required. The impracticality of such
an approach is self-evident, and illustrates the hazards of
ignoring the traditional solution of the common law. We
agree with the dissent that the Goss procedures will often
be, "if anything, less than a fair-minded school principal
would impose upon himself." Post, at 700, quoting Goss, 419
U.S., at 583 . But before this Court invokes the Constitution
to impose a procedural requirement, it should be reasonably
certain that the effect will be to afford protection appropriate
to the constitutional interests at stake. The dissenting
opinion's reading of the Constitution suggests no such
beneficial result and, indeed, invites a lowering of existing
constitutional standards.
MR. JUSTICE WHITE, with whom MR. JUSTICE
BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE
STEVENS join, dissenting.
Today the Court holds that corporal punishment in public
schools, no matter how severe, can never be the subject of
the protections afforded by the Eighth Amendment. It also
holds [430 U.S. 651, 684] that students in the public school
systems are not constitutionally entitled to a hearing of any
sort before beatings can be inflicted on them. Because I
believe that these holdings are inconsistent with the prior
decisions of this Court and are contrary to a reasoned
analysis of the constitutional provisions involved, I
respectfully dissent.
I
A
The Eighth Amendment places a flat prohibition against the
infliction of "cruel and unusual punishments." This reflects a
societal judgment that there are some punishments that are
so barbaric and inhumane that we will not permit them to be
imposed on anyone, no matter how opprobrious the offense.
See Robinson v. California, 370 U.S. 660, 676 (1962)
(Douglas, J., concurring). If there are some punishments that
are so barbaric that they may not be imposed for the
commission of crimes, designated by our social system as
the most thoroughly reprehensible acts an individual can
commit, then, a fortiori, similar punishments may not be
imposed on persons for less culpable acts, such as
breaches of school discipline. Thus, if it is constitutionally
impermissible to cut off someone's ear for the commission of
murder, it must be unconstitutional to cut off a child's ear for
being late to class. 1 Although there were no ears cut off in
this case, the [430 U.S. 651, 685] record reveals beatings
so severe that if they were inflicted on a hardened criminal
for the commission of a serious crime, they might not pass
constitutional muster.
Nevertheless, the majority holds that the Eighth Amendment
"was designed to protect [only] those convicted of crimes,"
ante, at 664, relying on a vague and inconclusive recitation
of the history of the Amendment. Yet the constitutional
prohibition is against cruel and unusual punishments;
nowhere is that prohibition limited or modified by the
language of the Constitution. Certainly, the fact that the
Framers did not choose to insert the word "criminal" into the
language of the Eighth Amendment is strong evidence that
the Amendment was designed to prohibit all inhumane or
barbaric punishments, no matter what the nature of the
offense for which the punishment is imposed.
No one can deny that spanking of schoolchildren is
"punishment" under any reasonable reading of the word, for
the similarities between spanking in public schools and other
forms of punishment are too obvious to ignore. Like other
forms of punishment, spanking of schoolchildren involves an
institutionalized response to the violation of some official rule
or regulation proscribing certain conduct and is imposed
[430 U.S. 651, 686] for the purpose of rehabilitating the
offender, deterring the offender and others like him from
committing the violation in the future, and inflicting some
measure of social retribution for the harm that has been
done.
B prisoner is beaten mercilessly for a breach of discipline, he is
We are fortunate that in our society punishments that are
severe enough to raise a doubt as to their constitutional
validity are ordinarily not imposed without first affording the
accused the full panoply of procedural safeguards provided
by the criminal process. 2 The effect has been that "every
decision of this Court considering whether a punishment is
`cruel and unusual' within the meaning of the Eighth and
Fourteenth Amendments has dealt with a criminal
punishment." Ante, at 666. The Court would have us believe
from this fact that there is a recognized distinction between
criminal and noncriminal punishment for purposes of the
Eighth Amendment. This is plainly wrong. "[E]ven a clear
legislative classification of a statute as `non-penal' would not
alter the fundamental nature of a plainly penal statute." Trop
v. Dulles, 356 U.S. 86, 95 (1958) (plurality opinion). The
relevant inquiry is not whether the offense for which a
punishment is inflicted has been labeled as criminal, but
whether the purpose of the deprivation is among those
ordinarily associated [430 U.S. 651, 687] with punishment,
such as retribution, rehabilitation, or deterrence. 3 Id., at 96.
Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
If this purposive approach were followed in the present case,
it would be clear that spanking in the Florida public schools
is punishment within the meaning of the Eighth Amendment.
The District Court found that "[c]orporal punishment is one of
a variety of measures employed in the school system for the
correction of pupil behavior and the preservation of order."
App. 146. Behavior correction and [430 U.S. 651, 688]
preservation of order are purposes ordinarily associated with
punishment.
Without even mentioning the purposive analysis applied in
the prior decisions of this Court, the majority adopts a rule
that turns on the label given to the offense for which the
punishment is inflicted. Thus, the record in this case reveals
that one student at Drew Junior High School received 50
licks with a paddle for allegedly making an obscene
telephone call. Brief for Petitioners 13. The majority holds
that the Eighth Amendment does not prohibit such
punishment since it was only inflicted for a breach of school
discipline. However, that same conduct is punishable as a
misdemeanor under Florida law, Fla. Stat. Ann. 365.16
(Supp. 1977), and there can be little doubt that if that same
"punishment" had been inflicted by an officer of the state
courts for violation of 365.16, it would have had to satisfy the
requirements of the Eighth Amendment.
C failure to provide for the medical needs of prisoners could
In fact, as the Court recognizes, the Eighth Amendment has
never been confined to criminal punishments. 4
Nevertheless, the majority adheres to its view that any
protections afforded by the Eighth Amendment must have
something to do with [430 U.S. 651, 689] criminals, and it
would therefore confine any exceptions to its general rule
that only criminal punishments are covered by the Eighth
Amendment to abuses inflicted on prisoners. Thus, if a
entitled to the protection of the Eighth Amendment, while a
schoolchild who commits the same breach of discipline and
is similarly beaten is simply not covered.
The purported explanation of this anomaly is the assertion
that schoolchildren have no need for the Eighth Amendment.
We are told that schools are open institutions, subject to
constant public scrutiny; that schoolchildren have adequate
remedies under state law; 5 and that prisoners suffer the
social stigma of being labeled as criminals. How any of these
policy considerations got into the Constitution is difficult to
discern, for the Court has never considered any of these
factors in determining the scope of the Eighth Amendment. 6
[430 U.S. 651, 690]
The essence of the majority's argument is that
schoolchildren do not need Eighth Amendment protection
because corporal punishment is less subject to abuse in the
public schools than it is in the prison system. 7 However, it
cannot be reasonably suggested that just because cruel and
unusual punishments may occur less frequently under public
scrutiny, they will not occur at all. The mere fact that a public
flogging or a public execution would be available for all to
see would not render the punishment constitutional if it were
otherwise impermissible. Similarly, the majority would not
suggest that a prisoner who is placed in a minimum-security
prison and permitted to go home to his family on the
weekends should be any less entitled to Eighth Amendment
protections than his counterpart in a maximum-security
prison. In short, if a punishment is so barbaric and inhumane
that it goes beyond the tolerance of a civilized society, its
openness to public scrutiny should have nothing to do with
its constitutional validity.
Nor is it an adequate answer that schoolchildren may have
other state and constitutional remedies available to them.
Even assuming that the remedies available to public school
students are adequate under Florida law, 8 the availability of
state remedies has never been determinative of the
coverage or of the protections afforded by the Eighth
Amendment. The reason is obvious. The fact that a person
may have a [430 U.S. 651, 691] state-law cause of action
against a public official who tortures him with a thumbscrew
for the commission of an antisocial act has nothing to do with
the fact that such official conduct is cruel and unusual
punishment prohibited by the Eighth Amendment. Indeed,
the majority's view was implicitly rejected this Term in Estelle
v. Gamble, 429 U.S. 97 (1976), when the Court held that
constitute cruel and unusual punishment even though a
medical malpractice remedy in tort was available to
prisoners under state law. Id., at 107 n. 15.
D
By holding that the Eighth Amendment protects only
criminals, the majority adopts the view that one is entitled to
the protections afforded by the Eighth Amendment only if he
is punished for acts that are sufficiently opprobrious for
society to make them "criminal." This is a curious holding in
view of the fact that the more culpable the offender the more
likely it is that the punishment will not be disproportionate to
the offense, and consequently, the less likely it is that the
punishment will be cruel and unusual. 9 Conversely, a public
school student who is spanked for a mere breach of
discipline may sometimes have a strong argument that the
punishment does not fit the offense, depending upon the
severity of the beating, and therefore that it is cruel and
unusual. Yet the majority would afford the student no
protection no matter how inhumane and barbaric the
punishment inflicted on him might be.
The issue presented in this phase of the case is limited to
whether corporal punishment in public schools can ever be
prohibited by the Eighth Amendment. I am therefore not [430
U.S. 651, 692] suggesting that spanking in the public
schools is in every instance prohibited by the Eighth
Amendment. My own view is that it is not. I only take issue
with the extreme view of the majority that corporal
punishment in public schools, no matter how barbaric,
inhumane, or severe, is never limited by the Eighth
Amendment. Where corporal punishment becomes so
severe as to be unacceptable in a civilized society, I can see
no reason that it should become any more acceptable just
because it is inflicted on children in the public schools.
II
The majority concedes that corporal punishment in the public
schools implicates an interest protected by the Due Process
Clause - the liberty interest of the student to be free from
"bodily restraint and punishment" involving "appreciable
physical pain" inflicted by persons acting under color of state
law. Ante, at 674. The question remaining, as the majority
recognizes, is what process is due.
The reason that the Constitution requires a State to provide
"due process of law" when it punishes an individual for
misconduct is to protect the individual from erroneous or
mistaken punishment that the State would not have inflicted
had it found the facts in a more reliable way. See, e. g.,
Mathews v. Eldridge, 424 U.S. 319, 335 , 344 (1976). In
Goss v. Lopez, 419 U.S. 565 (1975), the Court applied this
principle to the school disciplinary process, holding that a
student must be given an informal opportunity to be heard
before he is finally suspended from public school.
"Disciplinarians, although proceeding in utmost good faith,
frequently act on the reports and advice of others; and the
controlling facts and the nature of the conduct under
challenge are often disputed. The risk of error is not at all
trivial, and it should be guarded against if that may be done
without prohibitive cost or interference [430 U.S. 651, 693]
with the educational process." Id., at 580. (Emphasis added.)
To guard against this risk of punishing an innocent child, the
Due Process Clause requires, not an "elaborate hearing"
before a neutral party, but simply "an informal give-and-take
between student and disciplinarian" which gives the student
"an opportunity to explain his version of the facts." Id., at
580, 582, 584.
The Court now holds that these "rudimentary precautions
against unfair or mistaken findings of misconduct," id., at
581, are not required if the student is punished with
"appreciable physical pain" rather than with a suspension,
even though both punishments deprive the student of a
constitutionally protected interest. Although the respondent
school authorities provide absolutely no process to the
student before the punishment is finally inflicted, the majority
concludes that the student is nonetheless given due process
because he can later sue the teacher and recover damages
if the punishment was "excessive."
This tort action is utterly inadequate to protect against
erroneous infliction of punishment for two reasons. 10 First,
under Florida law, a student punished for an act he did not
commit cannot recover damages from a teacher "proceeding
[430 U.S. 651, 694] in utmost good faith . . . on the reports
and advice of others," supra, at 692; the student has no
remedy at all for punishment imposed on the basis of
mistaken facts, at least as long as the punishment was
reasonable from the point of view of the disciplinarian,
uninformed by any prior hearing. 11 The "traditional [430
U.S. 651, 695] common-law remedies" on which the
majority relies, ante, at 672, thus do nothing to protect the
student from the danger that concerned the Court in Goss -
the risk of reasonable, good-faith mistake in the school
disciplinary process.
Second, and more important, even if the student could sue
for good-faith error in the infliction of punishment, the lawsuit
occurs after the punishment has been finally imposed. The
infliction of physical pain is final and irreparable; it cannot be
undone in a subsequent proceeding. There is every reason
to require, as the Court did in Goss, a few minutes of
"informal give-and-take between student and disciplinarian"
[430 U.S. 651, 696] as a "meaningful hedge" against the
erroneous infliction of irreparable injury. 419 U.S., at 583
-584. 12
The majority's conclusion that a damages remedy for
excessive corporal punishment affords adequate process
rests on the novel theory that the State may punish an
individual without giving him any opportunity to present his
side of the story, as long as he can later recover damages
from a state official if he is innocent. The logic of this theory
would permit a State that punished speeding with a one-day
jail sentence to make a driver serve his sentence first without
a trial and then sue to recover damages for wrongful
imprisonment. 13 Similarly, the State could finally take away
a prisoner's good-time credits for alleged disciplinary
infractions and require him to bring a damages suit after he
was eventually released. There is no authority for this theory,
nor does the majority purport to find any, 14 in the
procedural due process [430 U.S. 651, 697] decisions of
this Court. Those cases have "consistently held that some
kind of hearing is required at some time before a person is
finally deprived of his property interests . . . [and that] a
person's liberty is equally protected . . . ." Wolff v. McDonnell,
418 U.S. 539, 557 -558 (1974). (Emphasis added.)
The majority attempts to support its novel theory by drawing
an analogy to warrantless arrests on probable cause, which
the Court has held reasonable under the Fourth Amendment.
United States v. Watson, 423 U.S. 411 (1976). This analogy
fails for two reasons. First, the particular requirements of the
Fourth Amendment, rooted in the "ancient common-law
rule[s]" regulating police practices, id., at 418, must be
understood in the context of the criminal justice system for
which that Amendment was explicitly tailored. Thus in
Gerstein v. Pugh, 420 U.S. 103 (1975), the Court, speaking
through MR. JUSTICE POWELL, rejected the argument that
procedural protections required in Goss and other due
process [430 U.S. 651, 698] cases should be afforded to a
criminal suspect arrested without a warrant.
"The Fourth Amendment was tailored explicitly for the
criminal justice system, and its balance between individual
and public interests always has been thought to define the
`process that is due' for seizures of person or property in
criminal cases, including the detention of suspects pending
trial. . . . Moreover, the Fourth Amendment probable cause
determination is in fact only the first stage of an elaborate
system, unique in jurisprudence, designed to safeguard the
rights of those accused of criminal conduct. The relatively
simple civil procedures (e. g., prior interview with school
principal before suspension) presented in the [procedural
due process] cases cited in the concurring opinion are
inapposite and irrelevant in the wholly different context of the
criminal justice system." Id., at 125 n. 27. (Emphasis in last
sentence added.)
While a case dealing with warrantless arrests is perhaps not
altogether "inapposite and irrelevant in the wholly different
context" of the school disciplinary process, such a case is far
weaker authority than procedural due process cases such as
Goss v. Lopez, 419 U.S. 565 (1975), that deal with
deprivations of liberty outside the criminal context.
Second, contrary to the majority's suggestion, ante, at 680 n.
48, the reason that the Court has upheld warrantless arrests
on probable cause is not because the police officer's
assessment of the facts "may be subjected to subsequent
judicial scrutiny in a civil action against the law enforcement
officer or in a suppression hearing . . . ." The reason that the
Court has upheld arrests without warrants is that they are
the "first stage of an elaborate system" of procedural
protections, Gerstein v. Pugh, supra, at 125 n. 27, and that
the State is not free to continue the deprivation beyond this
first stage without procedures. The Constitution requires the
State to provide [430 U.S. 651, 699] "a fair and reliable
determination of probable cause" by a judicial officer prior to
the imposition of "any significant pretrial restraint of liberty"
other than "a brief period of detention to take the
administrative steps incident to [a warrantless] arrest." Id., at
114, 125. (Footnote omitted; emphasis added.) This
"practical compromise" is made necessary because
"requiring a magistrate's review of the factual justification
prior to any arrest . . . would constitute an intolerable
handicap for legitimate law enforcement," id., at 113; but it is
the probable-cause determination prior to any significant
period of pretrial incarceration, rather than a damages action
or suppression hearing, that affords the suspect due
process.
There is, in short, no basis in logic or authority for the
majority's suggestion that an action to recover damages for
excessive corporal punishment "afford[s] substantially
greater protection to the child than the informal conference
mandated by Goss." 15 The majority purports to follow the
settled principle that what process is due depends on "`the
risk of an erroneous deprivation of [the protected]
interest . . . and the probable value, if any, of additional or
substitute procedural safeguards'"; 16 it recognizes, as did
Goss, the risk of error in the school disciplinary process 17
and concedes that "the child has a strong interest in
procedural safeguards that minimize the risk of wrongful
punishment . . .," ante, at 676; [430 U.S. 651, 700] but it
somehow concludes that this risk is adequately reduced by a
damages remedy that never has been recognized by a
Florida court, that leaves unprotected the innocent student
punished by mistake, and that allows the State to punish first
and hear the student's version of events later. I cannot
agree.
The majority emphasizes, as did the dissenters in Goss, that
even the "rudimentary precautions" required by that decision
would impose some burden on the school disciplinary
process. But those costs are no greater if the student is
paddled rather than suspended; the risk of error in the
punishment is no smaller; and the fear of "a significant
intrusion" into the disciplinary process, ante, at 682 (cf.
Goss, supra, at 585 (POWELL, J., dissenting)), is just as
exaggerated. The disciplinarian need only take a few
minutes to give the student "notice of the charges against
him and, if he denies them, an explanation of the evidence
the authorities have and an opportunity to present his side of
the story." 419 U.S., at 581 . In this context the Constitution
requires, "if anything, less than a fair-minded school principal
would impose upon himself" in order to avoid injustice. 18
Id., at 583.
I would reverse the judgment below.
[ Footnote 1 ] There is little reason to fear that if the Eighth
Amendment is held to apply at all to corporal punishment of
schoolchildren, all paddlings, however moderate, would be
prohibited. Jackson v. Bishop, 404 F.2d 571 (CA8 1968),
held that any paddling or flogging of prisoners, convicted of
crime and serving prison terms, violated the cruel and
unusual punishment ban of the Eighth Amendment. But
aside from the fact that Bishop has never been embraced by
this Court, the theory of that case was not that bodily
punishments are intrinsically barbaric or excessively severe
but that paddling of prisoners is "degrading to the punisher
and to the punished alike." Id., at 580. That approach may
be acceptable in the criminal justice system, but it has little if
any relevance to corporal [430 U.S. 651, 685] punishment
in the schools, for it can hardly be said that the use of
moderate paddlings in the discipline of children is
inconsistent with the country's evolving standards of
decency. On the other hand, when punishment involves a
cruel, severe beating or chopping off an ear, something more
than merely the dignity of the individual is involved.
Whenever a given criminal punishment is "cruel and
unusual" because it is inhumane or barbaric, I can think of
no reason why it would be any less inhumane or barbaric
when inflicted on a schoolchild, as punishment for classroom
misconduct. The issue in this case is whether spankings
inflicted on public school children for breaking school rules is
"punishment," not whether such punishment is "cruel and
unusual." If the Eighth Amendment does not bar moderate
spanking in public schools, it is because moderate spanking
is not "cruel and unusual," not because it is not "punishment"
as the majority suggests.
[ Footnote 2 ] By no means is it suggested that just because
spanking of schoolchildren is "punishment" within the
meaning of the Cruel and Unusual Punishments Clause, the
school disciplinary process is in any way "criminal" and
therefore subject to the full panoply of criminal procedural
guarantees. See Part II, infra. Ordinarily, the conduct for
which schoolchildren are punished is not sufficiently
opprobrious to be called "criminal" in our society, and even
violations of school disciplinary rules that might also
constitute a crime, see infra, at 688, are not subject to the
criminal process. See Baxter v. Palmigiano, 425 U.S. 308
(1976), where the Court held that persons who violate prison
disciplinary rules are not entitled to the full panoply of
criminal procedural safeguards, even if the rule violation
might also constitute a crime.
[ Footnote 3 ] The majority cites Trop as one of the cases
that "dealt with a criminal punishment" but neglects to follow
the analysis mandated by that decision. In Trop the petitioner
was convicted of desertion by a military court-martial and
sentenced to three years at hard labor, forfeiture of all pay
and allowances, and a dishonorable discharge. After he was
punished for the offense he committed, petitioner's
application for a passport was turned down. Petitioner was
told that he had been deprived of the "rights of citizenship"
under 401 (g) of the Nationality Act of 1940 because he had
been dishonorably discharged from the Armed Forces. The
plurality took the view that denationalization in this context
was cruel and unusual punishment prohibited by the Eighth
Amendment. The majority would have us believe that the
determinative factor in Trop was that the petitioner had been
convicted of desertion; yet there is no suggestion in Trop that
the disposition of the military court-martial had anything to do
with the decision in that case. Instead, while recognizing that
the Eighth Amendment extends only to punishments that are
penal in nature, the plurality adopted a purposive approach
for determining when punishment is penal. "In deciding
whether or not a law is penal, this Court has generally based
its determination upon the purpose of the statute. If the
statute imposes a disability for the purposes of punishment -
that is, to reprimand the wrongdoer, to deter others, etc. - it
has been considered penal. But a statute has been
considered nonpenal if it imposes a disability, not to punish,
but to accomplish some other legitimate governmental
purpose." 356 U.S., at 96 (footnotes omitted). Although the
quoted passage is taken from the plurality opinion of Mr.
Chief Justice Warren, joined by three other Justices, MR.
JUSTICE BRENNAN, in a concurring opinion, adopted a
similar approach in concluding that 401 (g) was beyond the
power of Congress to enact.
[ Footnote 4 ] Ante, at 669. In Estelle v. Gamble, 429 U.S. 97
(1976), a case decided this Term, the Court held that
"deliberate indifference to the medical needs of prisoners" by
prison officials constitutes cruel and unusual punishment
prohibited by the Eighth Amendment. Such deliberate
indifference to a prisoner's medical needs clearly is not
punishment inflicted for the commission of a crime; it is
merely misconduct by a prison official. Similarly, the Eighth
Circuit has held that whipping a prisoner with a strap in order
to maintain discipline is prohibited by the Eighth Amendment.
Jackson v. Bishop, 404 F.2d 571 (1968) (Blackmun, J.). See
also Knecht v. Gillman, 488 F.2d 1136, 1139-1140 (CA8
1973) (injection of vomit-inducing drugs as part of aversion
therapy held to be cruel and unusual); Vann v. Scott, 467
F.2d 1235, 1240-1241 (CA7 1972) (Stevens, J.) (Eighth
Amendment protects runaway children against cruel and
inhumane treatment, regardless of whether such treatment is
labeled "rehabilitation" or "punishment").
[ Footnote 5 ] By finding that bodily punishment invades a
constitutionally protected liberty interest within the meaning
of the Due Process Clause, the majority suggests that the
Clause might also afford a remedy for excessive spanking
independently of the Eighth Amendment. If this were the
case, the Court's present thesis would have little practical
significance. If rather than holding that the Due Process
Clause affords a remedy by way of the express commands
of the Eighth Amendment, the majority would recognize a
cause of action under 42 U.S.C. 1983 for a deprivation of
"liberty" flowing from an excessive paddling, the Court's
opinion is merely a lengthy word of advice with respect to the
drafting of civil complaints. Petitioners in this case did raise
the substantive due process issue in their petition for
certiorari, ante, at 659 n. 12, but consideration of that
question was foreclosed by our limited grant of certiorari. If it
is probable that schoolchildren would be entitled to
protection under some theory of substantive due process,
the Court should not now affirm the judgment below, but
should amend the grant of certiorari and set this case for
reargument.
[ Footnote 6 ] In support of its policy considerations, the only
cases from this Court cited by the majority are Morrissey v.
Brewer, 408 U.S. 471 (1972), and Meachum v. Fano, 427
U.S. 215 (1976), both cases involving prisoners' rights to
procedural due process.
[ Footnote 7 ] There is no evidence in the record that
corporal punishment has been abused in the prison systems
more often than in the public schools. Indeed, corporal
punishment is seldom authorized in state prisons. See
Jackson v. Bishop, supra, at 580, where MR. JUSTICE (then
Judge) BLACKMUN noted: "[O]nly two states still permit the
use of the strap [in prisons]. Thus almost uniformly has it
been abolished." By relying on its own view of the nature of
these two public institutions, without any evidence being
heard on the question below, the majority today predicates a
constitutional principle on mere armchair speculation.
[ Footnote 8 ] There is some doubt that the state-law
remedies available to public school children are adequate.
See n. 11, infra.

[ Footnote 9 ] For a penalty to be consistent with the Eighth
Amendment "the punishment must not be grossly out of
proportion to the severity of the crime." Gregg v. Georgia,
428 U.S. 153, 173 (1976) (joint opinion of STEWART,
POWELL, and STEVENS, JJ.).
[ Footnote 10 ] Here, as in Goss v. Lopez, 419 U.S. 565, 580
-581, n. 9 (1975), the record suggests that there may be a
substantial risk of error in the discipline administered by
respondent school authorities. Respondents concede that
some of the petitioners who were punished "denied
misconduct" and that "in some cases the punishments may
have been mistaken . . . ." Brief for Respondents 60-61. The
Court of Appeals panel below noted numerous instances of
students punished despite claims of innocence, 498 F.2d
248, 256-258 (CA5 1974), and was "particularly disturbed by
the testimony that whole classes of students were corporally
punished for the misconduct of a few." Id., at 268 n. 36. To
the extent that the majority focuses on the incidence of and
remedies for unduly severe punishments, it fails to address
petitioners' claim that procedural safeguards are required to
reduce the risk of punishments that are simply mistaken.
[ Footnote 11 ] The majority's assurances to the contrary, it is
unclear to me whether and to what extent Florida law
provides a damages action against school officials for
excessive corporal punishment. Giving the majority the
benefit of every doubt, I think it is fair to say that the most a
student punished on the basis of mistaken allegations of
misconduct can hope for in Florida is a recovery for
unreasonable or bad-faith error. But I strongly suspect that
even this remedy is not available. Although the majority does
not cite a single case decided under Florida law that
recognizes a student's right to sue a school official to recover
damages for excessive punishment, I am willing to assume
that such a tort action does exist in Florida. I nevertheless
have serious doubts about whether it would ever provide a
recovery to a student simply because he was punished for
an offense he did not commit. All the cases in other
jurisdictions cited by the majority, ante, at 663 n. 28, involved
allegations of punishment disproportionate to the misconduct
with which the student was charged; none of the decisions
even suggest that a student could recover by showing that
the teacher incorrectly imposed punishment for something
the student had not done. The majority appears to agree that
the damages remedy is available only in cases of
punishment unreasonable in light of the misconduct charged.
It states: "In those cases where severe punishment is
contemplated, the available civil and criminal sanctions for
abuse . . . afford significant protection against unjustified
corporal punishment." Ante, at 678. (Emphasis added.) Even
if the common-law remedy for excessive punishment
extends to punishment that is "excessive" only in the sense
that it is imposed on the basis of mistaken facts, the school
authorities are still protected from personal liability by
common-law immunity. (They are protected by statutory
immunity for liability for enforcing disciplinary rules "[e]xcept
in the case of excessive force or cruel and unusual
punishment." Fla. Stat. Ann. 232.275 (1976).) At a minimum,
this immunity would protect school officials from damages
liability for reasonable mistakes made in good faith.
"Although there have been differing emphases and
formulations of the common-law immunity of public school
officials in cases of student expulsion or suspension, state
courts have generally recognized that such [430 U.S. 651,
696] officers should be protected from tort liability under
state law for all goodfaith, nonmalicious action taken to fulfill
their official duties." Wood v. Strickland, 420 U.S. 308, 318
(1975) (adopting this rule for 1983 suits involving school
discipline) (footnote omitted); see id., at 318 n. 9 (citing state
cases). Florida has applied this rule to a police officer's
determination of probable cause to arrest; the officer is not
liable in damages for an arrest not based on probable cause
if the officer reasonably believed that probable cause
existed. Miami v. Albro, 120 So.2d 23, 26 (Fla. Dist. Ct. App.
1960); cf. Middleton v. Fort Walton Beach, 113 So.2d 431
(Fla. Dist. Ct. App. 1959) (police officer would be personally
liable for intentional tort of making an arrest pursuant to
warrant he knew to be void); Wilson v. O'Neal, 118 So.2d
101 (Fla. Dist. Ct. App. 1960) (law enforcement officer not
liable in damages for obtaining an arrest warrant on the
basis of an incorrect identification). There is every reason to
think that the Florida courts would apply a similar immunity
standard in a hypothetical damages suit against a school
disciplinarian. A final limitation on the student's damages
remedy under Florida law is that the student can recover
only from the personal assets of the official; the school
board's treasury is absolutely protected by sovereign
immunity from damages for the torts of its agents. Buck v.
McLean, 115 So.2d 764 (Fla. Dist. Ct. App. 1959). A
teacher's limited resources may deter the jury from
awarding, or prevent the student from collecting, the full
amount of damages to which he is entitled. Cf. Bonner v.
Coughlin, 517 F.2d 1311, 1319 n. 23 (CA7 1975), modified
en banc, 545 F.2d 565 (1976), cert. pending, No. 76-6204
(state-law remedy affords due process where no sovereign
or official immunity bars tort suit for negligence by prison
guard).
[ Footnote 12 ] Cf. G. M. Leasing Corp. v. United States, 429
U.S. 338, 351 -359 (1977). The Court there held that, in
levying on a taxpayer's assets pursuant to a jeopardy
assessment, revenue agents must obtain a warrant before
searching the taxpayer's office but not before seizing his
property in a manner that involves no invasion of privacy. G.
M. Leasing thus reflects the principle that the case for
advance procedural safeguards (such as a magistrate's
determination of probable cause) is more compelling when
the Government finally inflicts an injury that cannot be
repaired in a subsequent judicial proceeding (invasion of
privacy) than when it inflicts a temporary injury which can be
undone (seizure of property). The infliction of bodily
punishment, like the invasion of privacy, presents this most
compelling case for advance procedural safeguards.
[ Footnote 13 ] To the extent that the majority attempts to find
"a relevant analogy in the criminal law" - warrantless arrests
on probable cause - to its holding here, ante, at 679-680
(and see infra, at 697-699), it has chosen the wrong analogy.
If the majority forthrightly applied its present due process
analysis to the area of criminal prosecutions, the police
officer not only could arrest a suspect without a warrant but
also could convict the suspect without a trial and sentence
him to a short jail term. The accused would get his due
process in a tort suit for false imprisonment.
[ Footnote 14 ] For the proposition that the need for a prior
hearing is "significantly [430 U.S. 651, 697] less
compelling" where the State has preserved "common-law
remedies," ante, at 679, 678, the majority cites only one
case, Bonner v. Coughlin, supra, dismissing an allegation by
a prisoner that prison guards acting under color of state law
had deprived him of property without due process of law by
negligently failing to close the door of his cell after a search,
with the foreseeable consequence that his trial transcript
was stolen. The panel held that the right to recover under
state law for the negligence of state employees provided the
prisoner with due process of law. The decision is
distinguishable from the instant case on two grounds. First,
recovery was not barred by sovereign or official immunity,
and the state remedy ensured that the prisoner would be
"made whole for any loss of property." 517 F.2d, at 1319, and
n. 23. Cf. Regional Rail Reorganization Act Cases, 419 U.S.
102, 156 (1974). The point here, of course, is that the
student cannot be made whole for the infliction of wrongful
punishment. Second, the State cannot hold a pre-deprivation
hearing where it does not intend to inflict the deprivation; the
best it can do to protect the individual from an unauthorized
and inadvertent act is to provide a damages remedy. 517
F.2d, at 1319 n. 25. Here the deprivation is intentional and a
prior hearing altogether feasible.
[ Footnote 15 ] Ante, at 678 n. 46.
[ Footnote 16 ] Ante, at 675, quoting Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
[ Footnote 17 ] Ante, at 676, quoting Goss, 419 U.S., at 579
-580. Elsewhere in its opinion the majority asserts that the
risk of error is "typically insignificant" because "paddlings are
usually inflicted in response to conduct directly observed by
teachers in their presence." Ante, at 677-678. But it cites no
finding or evidence in the record for this assertion, and there
is no such restriction in the statute or regulations authorizing
corporal punishment. See ante, at 655 n. 6, 656 n. 7. Indeed,
the panel below noted specific instances in which students
were punished by an assistant to the principal who was not
present when the alleged offenses were committed. 498
F.2d, at 257, 259.
[ Footnote 18 ] My view here expressed that the minimal
procedures of Goss are required for any corporal
punishment implicating the student's liberty interest is, of
course, not meant to imply that this minimum would be
constitutionally sufficient no matter how severe the
punishment inflicted. The Court made this reservation explicit
in Goss by suggesting that more elaborate procedures such
as witnesses, counsel, and cross-examination might well be
required for suspensions longer than the 10-day maximum
involved in that case. 419 U.S., at 583 -584. A similar caveat
is appropriate here.
MR. JUSTICE STEVENS, dissenting.
MR. JUSTICE WHITE'S analysis of the Eighth Amendment
issue is, I believe, unanswerable. I am also persuaded that
his analysis of the procedural due process issue is correct.
Notwithstanding my disagreement with the Court's holding
[430 U.S. 651, 701] on the latter question, my respect for
MR. JUSTICE POWELL'S reasoning in Part IV-B of his
opinion for the Court prompts these comments.
The constitutional prohibition of state deprivations of life,
liberty, or property without due process of law does not, by
its express language, require that a hearing be provided
before any deprivation may occur. To be sure, the timing of
the process may be a critical element in determining its
adequacy - that is, in deciding what process is due in a
particular context. Generally, adequate notice and a fair
opportunity to be heard in advance of any deprivation of a
constitutionally protected interest are essential. The Court
has recognized, however, that the wording of the command
that there shall be no deprivation "without" due process of
law is consistent with the conclusion that a postdeprivation
remedy is sometimes constitutionally sufficient. 1
When only an invasion of a property interest is involved,
there is a greater likelihood that a damages award will make
a person completely whole than when an invasion of the
individual's interest in freedom from bodily restraint and
punishment has occurred. In the property context, therefore,
frequently a postdeprivation state remedy may be all the
process that the Fourteenth Amendment requires. It may
also be true - although I do not express an opinion on the
point - that an adequate state remedy for defamation may
satisfy the due process requirement when a State has
impaired an individual's interest in his reputation. On that
hypothesis, the Court's analysis today gives rise to the
thought that Paul v. Davis, 424 U.S. 693 , may have been
correctly decided on an incorrect rationale. Perhaps the
Court will one day [430 U.S. 651, 702] agree with MR.
JUSTICE BRENNAN'S appraisal of the importance of the
constitutional interest at stake in id., at 720-723, 734
(dissenting opinion), and nevertheless conclude that an
adequate state remedy may prevent every state-inflicted
injury to a person's reputation from violating 42 U.S.C. 1983.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-68288 July 11, 1986
DIOSDADO GUZMAN, ULYSSES URBIZTONDO, and
ARIEL RAMACULA, petitioners,
vs.
NATIONAL UNIVERSITY and DOMINGO L. JHOCSON in
his capacity as President of National University,
respondents.
Efren H. Mercado and Haydee Yorac for petitioners.
Samson S. Alcantara for respondents.
NARVASA, J.:
Petitioners Diosdado Guzman, Ulysses Urbiztondo and Ariel
Ramacula, students of respondent National University, have
come to this Court to seek relief from what they describe as
their school's "continued and persistent refusal to allow them
to enrol." In their petition "for extraordinary legal and
equitable remedies with prayer for preliminary mandatory
injunction" dated August 7, 1984, they allege:
1) that respondent University's avowed reason for its
refusal to re-enroll them in their respective courses is "the
latter's participation in peaceful mass actions within the
premises of the University.
2) that this "attitude of the (University) is simply a
continuation of its cavalier if not hostile attitude to the
student's exercise of their basic constitutional and human
rights already recorded in Rockie C. San Juan vs. National
University, S.C. G.R. No. 65443 (1983) and its utter
contempt for the principle of due process of law to the
prejudice of petitioners;" and
3) that "in effect petitioners are subjected to the extreme
penalty of expulsion without cause or if there be any, without
being informed of such cause and without being afforded the
opportunity to defend themselves. Berina v. Philippine
Maritime Institute (117 SCRA 581 [1983]).
In the comment filed on September 24, 1986 for respondent
University and its President pursuant to this Court's
requirement therefor 1 , respondents make the claim:
1) that "petitioners' failure to enroll for the first
semester of the school year 1984-1985 is due to their own
fault and not because of their allegedexercise of their
constitutional and human rights;"
2) that petitioner Urbiztondo, sought to re-enroll only
on July 5, 1986 "when the enrollment period was already
closed;"
3) that as regards petitioner Guzman, his "academic
showing" was "poor", "due to his activities in leading boycotts
of classes"; that when his father was notified of this
development sometime in August, 1982, the latter had
demanded that his son "reform or else we will recall him to
the province"; that Guzman was one of the petitioners in
G.R. No. 65443 entitled "Rockie San Juan, et al. vs. National
University, et al.," at the hearing of which on November 23,
1983 this Court had admonished "the students involved (to)
take advantage and make the most of the opportunity given
to them to study;" that Guzman "however continued to lead
or actively participate in activities within the university
premises, conducted without prior permit from school
authorities, that disturbed or disrupted classes therein;" that
moreover, Guzman "is facing criminal charges for malicious
mischief before the Metropolitan Trial Court of Manila (Crim.
Case No. 066446) in connection with the destruction of
properties of respondent University on September 12, 1983
", and "is also one of the defendants in Civil Case No.
8320483 of the Regional Trial Court of Manila entitled
'National University, Inc. vs. Rockie San Juan et al.' for
damages arising from destruction of university properties
4) that as regards petitioner Ramacula, like Guzman
"he continued to lead or actively participate, contrary to the
spirit of the Resolution dated November 23, 1983 of this ...
Court (in G.R. No. 65443 in which he was also one of the
petitioners) and to university rules and regulations, within
university premises but without permit from university
officials in activities that disturbed or disrupted classes;" and
5) that petitioners have "failures in their records,
(and) are not of good scholastic standing. "
Respondents close their comment with the following
assertions, to wit:
1) By their actuations, petitioners must be deemed to
have forfeited their privilege, if any, to seek enrollment in
respondent university. The rights of respondent university, as
an institution of higher learning, must also be respected. It is
also beyond comprehension why petitioners, who continually
despise and villify respondent university and its officials and
faculty members, should persist in seeking enrollment in an
institution that they hate.
2) Under the circumstances, and without regard to
legal technicalities, it is not to the best interest of all
concerned that petitioners be allowed to enroll in respondent
university.
3) In any event, petitioners' enrollment being on the
semestral basis, respondents cannot be compelled to enroll
them after the end of the semester.
On October 2, 1984 this Court issued a resolution reading as
follows:
... Acting on the Comment submitted by respondent, the
Court Resolved to NOTE the same and to require a REPLY
to such Comment. The Court further Resolved to ISSUE a
MANDATORY INJUNCTION, enjoining respondent to allow
the enrolment of petitioners for the coming semester without
prejudice to any disciplinary proceeding to which any or all of
them may be subjected with their right to lawful defense
recognized and respected. As regards petitioner Diosdado
Guzman, even if it be a fact that there is a pending criminal
charge against him for malicious mischief, the Court
nonetheless is of the opinion that, as above-noted, without
prejudice to the continuation of any disciplinary proceeding
against him, that he be allowed to resume his studies in the
meanwhile. As shown in Annex 2 of the petition itself, Mr.
Juan P. Guzman, father of said petitioner, is extending full
cooperation with petitioners to assure that whatever protest
or grievance petitioner Guzman may have would be
ventilated in a lawful and peaceful manner.
Petitioners' REPLY inter alia
1) denied that Urbiztondo attempted to enroll only on
July 5, 1984 (when enrollment was already closed), it being
alleged that "while he did try to enroll that day, he also
attempted to do so several times before that date, all to no
avail, because respondents ... persistently refused to allow
him to do so" respondents' ostensible reason being that
Urbiztondo (had) participated in mass actions ... within the
school premises," although there were no existing
disciplinary charge against petitioner Urbiztondo" at the time;
2) asserted that "neither the text nor the context of
the resolution 2 justifies the conclusion that "petitioners' right
to exercise their constitutional freedoms" had thereby been
restricted or limited; and
3) alleged that "the holding of activities (mass action)
in the school premises without the permission of the
school ... can be explained by the fact that the respondents
persistently refused to issue such permit repeatedly sought
by the students. "
On November 23, 1984, this Court promulgated another
resolution, this time reading as follows:
... The Court, after considering the pleadings filed and
deliberating on the issues raised in the petition for
extraordinary legal and equitable remedies with prayer for
preliminary mandatory injunction as well as the respondents'
comment on the petition and the reply of counsel for
petitioners to the respondents' comment, Resolved to (a)
give DUE COURSE to the petition; (b) consider the
respondents' comment as ANSWER to the petition; and (c)
require the parties to file their respective MEMORANDA
within twenty (20) days from notice. ... .
Immediately apparent from a reading of respondents'
comment and memorandum is the fact that they had never
conducted proceedings of any sort to determine whether or
not petitioners-students had indeed led or participated "in
activities within the university premises, conducted without
prior permit from school authorities, that disturbed or
disrupted classes therein" 3 or perpetrated acts of
"vandalism, coercion and intimidation, slander, noise barrage
and other acts showing disdain for and defiance of University
authority." 4 Parenthetically, the pendency of a civil case for
damages and a criminal case for malicious mischief against
petitioner Guzman, cannot, without more, furnish sufficient
warrant for his expulsion or debarment from re-enrollment.
Also apparent is the omission of respondents to cite this
Court to any duly published rule of theirs by which students
may be expelled or refused re-enrollment for poor scholastic
standing.
Under the Education Act of 1982, 5 the petitioners, as
students, have the right among others "to freely choose their
field of study subject to existing curricula and to continue
their course therein up to graduation, except in case of
academic deficiency, or violation of disciplinary regulations."
6 Petitioners were being denied this right, or being
disciplined, without due process, in violation of the
admonition in the Manual of Regulations for Private Schools
7 that "(n)o penalty shall be imposed upon any student
except for cause as defined in ... (the) Manual and/or in the
school rules and regulations as duly promulgated and only
after due investigation shall have been conducted." 8 This
Court is therefore constrained, as in Berina v. Philippine
Maritime Institute, 9 to declare illegal this act of respondents
of imposing sanctions on students without due investigation.
Educational institutions of course have the power to "adopt
and enforce such rules as may be deemed expedient for ...
(its) government, ... (this being)" incident to the very object of
incorporation, and indispensable to the successful
management of the college." 10 The rules may include those
governing student discipline. Indeed, the maintenance of
"good school discipline" is a duty specifically enjoined on
"every private school" by the Manual of Regulations for
Private Schools; 11 and in this connection, the Manual
further provides that-
... The school rules governing discipline and the
corresponding sanctions therefor must be clearly specified
and defined in writing and made known to the students
and/or their parents or guardians. Schools shall have the
authority and prerogative to promulgate such rules and
regulations as they may deem necessary from time to time
effective as of the date of their promulgation unless
otherwise specified. 12
But, to repeat, the imposition of disciplinary sanctions
requires observance of procedural due process. And it bears
stressing that due process in disciplinary cases involving
students does not entail proceedings and hearings similar to
those prescribed for actions and proceedings in courts of
justice. The proceedings in student discipline cases may be
summary; and cross-examination is not, 'contrary to
petitioners' view, an essential part thereof. There are withal
minimum standards which must be met to satisfy the
demands of procedural due process; and these are, that (1)
the students must be informed in writing of the nature and
cause of any accusation against them; (2) they shag have
the right to answer the charges against them, with the
assistance of counsel, if desired; (3) they shall be informed
of the evidence against them; (4) they shall have the right to
adduce evidence in their own behalf; and (5) the evidence
must be duly considered by the investigating committee or
official designated by the school authorities to hear and
decide the case.
WHEREFORE, the petition is granted and the respondents
are directed to allow the petitioners to re-enroll or otherwise
continue with their respective courses, without prejudice to
any disciplinary proceedings to which any or all of them may
be subjected in accordance with the standards herein set
forth.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 127980 December 19, 2007
DE LA SALLE UNIVERSITY, INC., EMMANUEL SALES,
RONALD HOLMES, JUDE DELA TORRE, AMPARO RIO,
CARMELITA QUEBENGCO, AGNES YUHICO and JAMES
YAP, petitioners,
vs.
THE COURT OF APPEALS, HON. WILFREDO D. REYES,
in his capacity as Presiding Judge of Branch 36, Regional
Trial Court of Manila, THE COMMISSION ON HIGHER
EDUCATION, THE DEPARTMENT OF EDUCATION
CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL
BUNGUBUNG, RICHARD REVERENTE and ROBERTO
VALDES, JR., respondents.
DECISION
REYES, R.T., J.:
NAGTATAGIS sa kasong ito ang karapatang mag-aral ng
apat na estudyante na nasangkot sa away ng dalawang
fraternity at ang karapatang akademiko ng isang
pamantasan.
PRIVATE respondents Alvin Aguilar, James Paul
Bungubung, Richard Reverente and Roberto Valdes, Jr. are
members of Tau Gamma Phi Fraternity who were expelled
by the De La Salle University (DLSU) and College of Saint
Benilde (CSB)1 Joint Discipline Board because of their
involvement in an offensive action causing injuries to
petitioner James Yap and three other student members of
Domino Lux Fraternity. This is the backdrop of the
controversy before Us pitting private respondents' right to
education vis-a-vis the University's right to academic
freedom.
ASSAILED in this Petition for Certiorari, Prohibition and
Mandamus under Rule 65 of the Rules of Court are the
following: (1) Resolution of the Court of Appeals (CA) dated
July 30, 1996 dismissing DLSU's petition for certiorari
against respondent Judge and private respondents Aguilar,
Bungubung, Reverente, and Valdes, Jr.;2 (2) Resolution of
the CA dated October 15, 1996 denying the motion for
reconsideration;3 (3) Order dated January 7, 1997 of the
Regional Trial Court (RTC), Branch 36 Manila granting
private respondent Aguilar's motion to reiterate writ of
preliminary injunction;4 and (4) Resolution No. 181-96 dated
May 14, 1996 of the Commission on Higher Education
(CHED) exonerating private respondent Aguilar and lowering
the penalties for the other private respondents from
expulsion to exclusion.5
Factual Antecedents
Gleaned from the May 3, 1995 Decision of the DLSU-CSB
Joint Discipline Board, two violent incidents on March 29,
1995 involving private respondents occurred:
x x x From the testimonies of the complaining witnesses, it
appears that one week prior to March 29, 1995, Mr. James
Yap was eating his dinner alone in Manang's Restaurant
near La Salle, when he overheard two men bad-mouthing
and apparently angry at Domino Lux. He ignored the
comments of the two. When he arrived at his boarding
house, he mentioned the remarks to his two other brods
while watching television. These two brods had earlier
finished eating their dinner at Manang's. Then, the three,
together with four other persons went back to Manang's and
confronted the two who were still in the restaurant. By
admission of respondent Bungubung in his testimony, one of
the two was a member of the Tau Gamma Phi Fraternity.
There was no rumble or physical violence then.
After this incident, a meeting was conducted between the
two heads of the fraternity through the intercession of the
Student Council. The Tau Gamma Phi Fraternity was asking
for an apology. "Kailangan ng apology" in the words of
respondent Aguilar. But no apology was made.
Then, 5 members of the Tau Gamma Phi Fraternity went to
the tambayan of the Domino Lux Fraternity in the campus.
Among them were respondents Bungubung, Reverente and
Papio. They were looking for a person whose description
matched James Yap. According to them, this person
supposedly "nambastos ng brod." As they could not find Mr.
Yap, one of them remarked "Paano ba iyan. Pasensiya na
lang."
Came March 29, 1995 and the following events.
Ten minutes before his next class at 6:00 p.m., Mr. James
Yap went out of the campus using the Engineering Gate to
buy candies across Taft Avenue. As he was about to re-cross
Taft Avenue, he heard heavy footsteps at his back. Eight to
ten guys were running towards him. He panicked. He did not
know what to do. Then, respondent Bungubung punched
him in the head with something heavy in his hands "parang
knuckles." Respondents Reverente and Lee were behind
Yap, punching him. Respondents Bungubung and Valdes
who were in front of him, were also punching him. As he was
lying on the street, respondent Aguilar kicked him. People
shouted; guards arrived; and the group of attackers left.
Mr. Yap could not recognize the other members of the group
who attacked him. With respect to respondent Papio, Mr.
Yap said "hindi ko nakita ang mukha niya, hindi ko nakita
sumuntok siya." What Mr. Yap saw was a long haired guy
also running with the group.
Two guards escorted Mr. Yap inside the campus. At this
point, Mr. Dennis Pascual was at the Engineering Gate. Mr.
Pascual accompanied Yap to the university clinic; reported
the incident to the Discipline Office; and informed his
fraternity brods at their tambayan. According to Mr. Pascual,
their head of the Domino Lux Fraternity said: "Walang
gagalaw. Uwian na lang."
Mr. Ericson Cano, who was supposed to hitch a ride with
Dennis Pascual, saw him under the clock in Miguel Building.
However, they did not proceed directly for home. With a
certain Michael Perez, they went towards the direction of
Dagonoy Street because Mr. Pascual was supposed to pick
up a book for his friend from another friend who lives
somewhere in the area.
As they were along Dagonoy Street, and before they could
pass the Kolehiyo ng Malate Restaurant, Mr. Cano first saw
several guys inside the restaurant. He said not to mind them
and just keep on walking. However, the group got out of the
restaurant, among them respondents Reverente, Lee and
Valdes. Mr. Cano told Mr. Lee: "Ayaw namin ng gulo." But,
respondent Lee hit Mr. Cano without provocation.
Respondent Reverente kicked Mr. Pascual and respondent
Lee also hit Mr. Pascual. Mr. Cano and Mr. Perez managed
to run from the mauling and they were chased by respondent
Lee and two others.
Mr. Pascual was left behind. After respondent Reverente first
kicked him, Mr. Pascual was ganged-upon by the rest. He
was able to run, but the group was able to catch up with him.
His shirt was torn and he was hit at the back of his head with
a lead pipe. Respondent Lee who was chasing Cano and
Perez, then returned to Mr. Pascual.
Mr. Pascual identified respondents Reverente and Lee, as
among those who hit him. Although Mr. Pascual did not see
respondent Valdes hit him, he identified respondent Valdez
(sic) as also one of the members of the group.
In fact, Mr. Cano saw respondent Valdes near Mr. Pascual.
He was almost near the corner of Leon Guinto and Estrada;
while respondent Pascual who managed to run was stopped
at the end of Dagonoy along Leon Guinto. Respondent
Valdes shouted: "Mga putang-ina niyo." Respondent
Reverente hit Mr. Pascual for the last time. Apparently being
satisfied with their handiwork, the group left. The victims,
Cano, Perez and Pascual proceeded to a friend's house and
waited for almost two hours, or at around 8:00 in the evening
before they returned to the campus to have their wounds
treated. Apparently, there were three cars roaming the
vicinity.6
The mauling incidents were a result of a fraternity war. The
victims, namely: petitioner James Yap and Dennis Pascual,
Ericson Cano, and Michael Perez, are members of the
"Domino Lux Fraternity," while the alleged assailants, private
respondents Alvin Aguilar, James Paul Bungubung, Richard
Reverente and Roberto Valdes, Jr. are members of "Tau
Gamma Phi Fraternity," a rival fraternity.
The next day, March 30, 1995, petitioner Yap lodged a
complaint7 with the Discipline Board of DLSU charging
private respondents with "direct assault." Similar complaints8
were also filed by Dennis Pascual and Ericson Cano against
Alvin Lee and private respondents Valdes and Reverente.
Thus, cases entitled "De La Salle University and College of
St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul
Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-
BS-APM/9235086), Alvin Lee (EDD/9462325), Richard
Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-
MGT/9251227)" were docketed as Discipline Case No.
9495-3-25121.
The Director of the DLSU Discipline Office sent separate
notices to private respondents Aguilar, Bungubung and
Valdes, Jr. and Reverente informing them of the complaints
and requiring them to answer. Private respondents filed their
respective answers.9
As it appeared that students from DLSU and CSB10 were
involved in the mauling incidents, a joint DLSU-CSB
Discipline Board11 was formed to investigate the incidents.
Thus, petitioner Board Chairman Emmanuel Sales sent
notices of hearing12 to private respondents on April 12,
1995. Said notices uniformly stated as follows:
Please be informed that a joint and expanded Discipline
Board had been constituted to hear and deliberate the
charge against you for violation of CHED Order No. 4 arising
from the written complaints of James Yap, Dennis C.
Pascual, and Ericson Y. Cano.
You are directed to appear at the hearing of the Board
scheduled on April 19, 1995 at 9:00 a.m. at the Bro. Connon
Hall for you and your witnesses to give testimony and
present evidence in your behalf. You may be assisted by a
lawyer when you give your testimony or those of your
witnesses.
On or before April 18, 1995, you are further directed to
provide the Board, through the Discipline Office, with a list of
your witnesses as well as the sworn statement of their
proposed testimony.
Your failure to appear at the scheduled hearing or your
failure to submit the list of witnesses and the sworn
statement of their proposed testimony will be considered a
waiver on your part to present evidence and as an admission
of the principal act complained of.
For your strict compliance.13
During the proceedings before the Board on April 19 and 28,
1995, private respondents interposed the common defense
of alibi, summarized by the DLSU-CSB Joint Discipline
Board as follows:
First, in the case of respondent Bungubung, March 29, 1995
was one of the few instances when he was picked-up by a
driver, a certain Romeo S. Carillo. Most of the time,
respondent Bungubung goes home alone sans driver. But on
this particular date, respondent Bungubung said that his dad
asked his permission to use the car and thus, his dad
instructed this driver Carillo to pick-up his son. Mr. Carillo is
not a family driver, but works from 8:00 a.m. to 5:00 p.m. for
the Philippine Ports Authority where the elder Bungubung is
also employed.
Thus, attempting to corroborate the alibi of respondent
Bungubung, Mr. Carillo said that he arrived at La Salle at
4:56 p.m.; picked-up respondent at 5:02 p.m.; took the
Roxas Blvd. route towards respondent's house in BF
Paraaque (on a Wednesday in Baclaran); and arrived at the
house at 6:15 p.m. Respondent Bungubung was dropped-off
in his house, and taking the same route back, Mr. Carillo
arrived at the South Harbor at 6:55 p.m. the Philippine Ports
Authority is located at the South Harbor.14
xxxx
Secondly, respondent Valdes said that he was with his
friends at McDonald's Taft just before 6:00 p.m. of March 29,
1995. He said that he left McDonald at 5:50 p.m. together to
get some medicine at the university clinic for his throat
irritation. He said that he was at the clinic at 5:52 p.m. and
went back to McDonald, all within a span of 3 or even 4
minutes.
Two witnesses, a certain Sharon Sia and the girlfriend of
respondent Valdes, a certain Jorgette Aquino, attempted to
corroborate Valdez' alibi.15
xxxx
Third, respondent Reverente told that (sic) the Board that he
was at his home at 5:00 p.m. of March 29, 1995. He said
that he was given the responsibility to be the paymaster of
the construction workers who were doing some works in the
apartment of his parents. Although he had classes in the
evening, the workers according to him would wait for him
sometimes up to 9:00 p.m. when he arrives from his classes.
The workers get paid everyday.
Respondent Reverente submitted an affidavit, unsigned by
the workers listed there, supposedly attesting to the fact that
he paid the workers at the date and time in question.16
xxxx
Fourth, respondent Aguilar "solemnly sw[ore] that [he] left
DLSU at 5:00 p.m. for Camp Crame for a meeting with some
of the officers that we were preparing."17
On May 3, 1995, the DLSU-CSB Joint Discipline Board
issued a Resolution18 finding private respondents guilty.
They were meted the supreme penalty of automatic
expulsion,19 pursuant to CHED Order No. 4.20 The
dispositive part of the resolution reads:
WHEREFORE, considering all the foregoing, the Board finds
respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES
PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE
(EDD/94623250) and RICHARD V. REVERENTE (AB-
MGT/9153837) guilty of having violated CHED Order No. 4
and thereby orders their automatic expulsion.
In the case of respondent MALVIN A. PAPIO (AB-
MGT/9251227), the Board acquits him of the charge.
SO ORDERED.21
1. Implementing and enforcing the Resolution dated May 3,
Private respondents separately moved for reconsideration22
before the Office of the Senior Vice-President for Internal
Operations of DLSU. The motions were all denied in a
Letter-Resolution23 dated June 1, 1995.
On June 5, 1995, private respondent Aguilar filed with the
RTC, Manila, against petitioners a petition for certiorari and
injunction under Rule 65 of the Rules of Court with prayer for
temporary restraining order (TRO) and/or writ of preliminary
injunction. It was docketed as Civil Case No. 95-74122 and
assigned to respondent Judge of Branch 36. The petition
essentially sought to annul the May 3, 1995 Resolution of
the DLSU-CSB Joint Discipline Board and the June 1, 1995
Letter-Resolution of the Office of the Senior Vice-President
for Internal Affairs.
The following day, June 6, 1995, respondent Judge issued a
TRO24 directing DLSU, its subordinates, agents,
representatives and/or other persons acting for and in its
behalf to refrain and desist from implementing Resolution
dated May 3, 1995 and Letter-Resolution dated June 1, 1995
and to immediately desist from barring the enrollment of
Aguilar for the second term of school year (SY) 1995.
Subsequently, private respondent Aguilar filed an ex parte
motion to amend his petition to correct an allegation in
paragraph 3.2125 of his original petition. Respondent Judge
amended the TRO26 to conform to the correction made in
the amended petition.27
On June 7, 1995, the CHED directed DLSU to furnish it with
copies of the case records of Discipline Case No. 9495-3-
25121,28 in view of the authority granted to it under Section
77(c) of the Manual of Regulations for Private Schools
(MRPS).
On the other hand, private respondents Bungubung and
Reverente, and later, Valdes, filed petitions-in-intervention29
in Civil Case No. 95-74122. Respondent Judge also issued
corresponding temporary restraining orders to compel
petitioner DLSU to admit said private respondents.
On June 19, 1995, petitioner Sales filed a motion to
dismiss30 in behalf of all petitioners, except James Yap. On
June 20, 1995, petitioners filed a supplemental motion to
dismiss31 the petitions-in-intervention.
On September 20, 1995, respondent Judge issued an
Order32 denying petitioners' (respondents there) motion to
dismiss and its supplement, and granted private
respondents' (petitioners there) prayer for a writ of
preliminary injunction. The pertinent part of the Order reads:
For this purpose, respondent, its agents, representatives or
any and all other persons acting for and in its behalf is/are
restrained and enjoined from
1995 ordering the automatic expulsion of petitioner and the
petitioners-in-intervention from the De La Salle University
and the letter-resolution dated June 1, 1995, affirming the
Resolution dated May 3, 1995; and
2. Barring the enrolment of petitioner and petitioners-in-
intervention in the courses offered at respondent De La Salle
University and to immediately allow them to enroll and
complete their respective courses/degrees until their
graduation thereat in accordance with the standards set by
the latter.
WHEREFORE, the ancillary remedy prayed for is granted.
Respondent, its agents, representatives, or any and all
persons acting for and its behalf are hereby restrained and
enjoyed from:
1. Implementing and enforcing the Resolution dated May 3,
1995 ordering the automatic expulsion of petitioner and
petitioners-in-intervention and the Letter-Resolution dated
June 1, 1995; and
2. Barring the enrollment of petitioner and petitioners-in-
intervention in the courses offered at respondent (De La
Salle University) and to forthwith allow all said petitioner and
petitioners-in-intervention to enroll and complete their
respective courses/degrees until their graduation thereat.
The Writ of Preliminary Injunction shall take effect upon
petitioner and petitioners-in-intervention posting an injunctive
bond in the amount of P15,000.00 executed in favor of
respondent to the effect that petitioner and petitioners-in-
intervention will pay to respondent all damages that the latter
may suffer by reason of the injunction if the Court will finally
decide that petitioner and petitioners-in-intervention are not
entitled thereto.
The motion to dismiss and the supplement thereto is denied
for lack of merit. Respondents are directed to file their
Answer to the Petition not later than fifteen (15) days from
receipt thereof.
SO ORDERED.33
Despite the said order, private respondent Aguilar was
refused enrollment by petitioner DLSU when he attempted to
enroll on September 22, 1995 for the second term of SY
1995-1996. Thus, on September 25, 1995, Aguilar filed with
respondent Judge an urgent motion to cite petitioners
(respondents there) in contempt of court.34 Aguilar also
prayed that petitioners be compelled to enroll him at DLSU in
accordance with respondent Judge's Order dated September
20, 1995. On September 25, 1995, respondent Judge
issued35 a writ of preliminary injunction, the relevant portion
of which reads:
IT IS HEREBY ORDERED by the undersigned of the
REGIONAL TRIAL COURT OF MANILA that until further
orders, you the said DE LA SALLE University as well as your
subordinates, agents, representatives, employees and any
other person assisting or acting for or on your behalf, to
immediately desist from implementing the Resolution dated
May 3, 1995 ordering the automatic expulsion of petitioner
and the intervenors in DLSU, and the letter-resolution dated
June 1, 1995 affirming the said Resolution of May 3, 1995
and to immediately desist from barring the enrolment of
petitioner and intervenors in the courses offered at DLSU
and to allow them to enroll and complete their degree
courses until their graduation from said school.36
On October 16, 1995, petitioner DLSU filed with the CA a
petition for certiorari37 (CA-G.R. SP No. 38719) with prayer
for a TRO and/or writ of preliminary injunction to enjoin the
enforcement of respondent Judge's September 20, 1995
Order and writ of preliminary injunction dated September 25,
1995.
On April 12, 1996, the CA granted petitioners' prayer for
preliminary injunction.
On May 14, 1996, the CHED issued its questioned
Resolution No. 181-96, summarily disapproving the penalty
of expulsion for all private respondents. As for Aguilar, he
was to be reinstated, while other private respondents were to
be excluded.38 The Resolution states:
RESOLUTION 181-96
RESOLVED THAT THE REQUEST OF THE DE LA SALLE
UNIVERSITY (DLSU), TAFT AVENUE, MANILA FOR THE
APPROVAL OF THE PENALTY OF EXPULSION IMPOSED
ON MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG,
ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD V.
REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED.
RESOLVED FURTHER, THAT THE COMMISSION DIRECT
THE DLSU TO IMMEDIATELY EFFECT THE
REINSTATEMENT OF MR. AGUILAR AND THE LOWERING
OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG,
MR. ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND
MR. RICHARD V. REVERENTE FROM EXPULSION TO
EXCLUSION.39
Despite the directive of CHED, petitioner DLSU again
prevented private respondent Aguilar from enrolling and/or
attending his classes, prompting his lawyer to write several
demand letters40 to petitioner DLSU. In view of the refusal
of petitioner DLSU to enroll private respondent Aguilar,
CHED wrote a letter dated June 26, 1996 addressed to
petitioner Quebengco requesting that private respondent
Aguilar be allowed to continue attending his classes pending
the resolution of its motion for reconsideration of Resolution
No. 181-96. However, petitioner Quebengco refused to do
so, prompting CHED to promulgate an Order dated
September 23, 1996 which states:
Acting on the above-mentioned request of Mr. Aguilar
through counsel enjoining De La Salle University (DLSU) to
comply with CHED Resolution 181-96 (Re: Expulsion Case
of Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate
Mr. Aguilar and finding the urgent request as meritorious,
there being no other plain and speedy remedy available,
considering the set deadline for enrollment this current
TRIMESTER, and in order to prevent further prejudice to his
rights as a student of the institution, DLSU, through the
proper school authorities, is hereby directed to allow Mr.
Alvin Aguilar to provisionally enroll, pending the
Commission's Resolution of the instant Motion for
Reconsideration filed by DLSU.
SO ORDERED.41
Notwithstanding the said directive, petitioner DLSU, through
petitioner Quebengco, still refused to allow private
respondent Aguilar to enroll. Thus, private respondent
Aguilar's counsel wrote another demand letter to petitioner
DLSU.42
Meanwhile, on June 3, 1996, private respondent Aguilar,
using CHED Resolution No. 181-96, filed a motion to
dismiss43 in the CA, arguing that CHED Resolution No. 181-
96 rendered the CA case moot and academic.
On July 30, 1996, the CA issued its questioned resolution
granting the motion to dismiss of private respondent Aguilar,
disposing thus:
THE FOREGOING CONSIDERED, dismissal of herein
petition is hereby directed.
SO ORDERED.44
On October 15, 1996, the CA issued its resolution denying
petitioners' motion for reconsideration, as follows:
It is obvious to Us that CHED Resolution No. 181-96 is
immediately executory in character, the pendency of a
Motion for Reconsideration notwithstanding.
After considering the Opposition and for lack of merit, the
Motion for Reconsideration is hereby denied.
SO ORDERED.45
On October 28, 1996, petitioners requested transfer of case
records to the Department of Education, Culture and Sports
(DECS) from the CHED.46 Petitioners claimed that it is the
DECS, not CHED, which has jurisdiction over expulsion
cases, thus, necessitating the transfer of the case records of
Discipline Case No. 9495-3-25121 to the DECS.
On November 4, 1996, in view of the dismissal of the petition
for certiorari in CA-G.R. SP No. 38719 and the automatic
lifting of the writ of preliminary injunction, private respondent
Aguilar filed an urgent motion to reiterate writ of preliminary
injunction dated September 25, 1995 before respondent
RTC Judge of Manila.47
On January 7, 1997, respondent Judge issued its questioned
order granting private respondent Aguilar's urgent motion to
reiterate preliminary injunction. The pertinent portion of the
order reads:
In light of the foregoing, petitioner Aguilar's urgent motion to
reiterate writ of preliminary injunction is hereby granted, and
respondents' motion to dismiss is denied.
The writ of preliminary injunction dated September 25, 1995
is declared to be in force and effect.
Let a copy of this Order and the writ be served personally by
the Court's sheriff upon the respondents at petitioners'
expense.

SO ORDERED.48
Accordingly, private respondent Aguilar was allowed to
conditionally enroll in petitioner DLSU, subject to the
continued effectivity of the writ of preliminary injunction dated
September 25, 1995 and to the outcome of Civil Case No.
95-74122.
On February 17, 1997, petitioners filed the instant petition.
On June 15, 1998, We issued a TRO49 as prayed for by the
urgent motion for the issuance of a TRO50 dated June 4,
1998 of petitioners, and enjoined respondent Judge from
implementing the writ of preliminary injunction dated
September 25, 1995 issued in Civil Case No. 95-74122,
effective immediately and until further orders from this Court.
On March 27, 2006, private respondent Aguilar filed his
manifestation51 stating that he has long completed his
course at petitioner DLSU. He finished and passed all his
enrolled subjects for the second trimester of 1997-1998, as
indicated in his transcript of records52 issued by DLSU.
However, despite having completed all the academic
requirements for his course, DLSU has not issued a
certificate of completion/graduation in his favor.
Issues
We are tasked to resolve the following issues:
1. Whether it is the DECS or the CHED which has legal
authority to review decisions of institutions of higher learning
that impose disciplinary action on their students found
violating disciplinary rules.
2. Whether or not petitioner DLSU is within its rights in
expelling private respondents.
2.a Were private respondents accorded due process of law?
2.b Can petitioner DLSU invoke its right to academic
freedom?
2.c Was the guilt of private respondents proven by
substantial evidence?
3. Whether or not the penalty imposed by DLSU on private
respondents is proportionate to their misdeed.
Our Ruling
Prefatorily, there is merit in the observation of petitioners53
that while CHED Resolution No. 181-96 disapproved the
expulsion of other private respondents, it nonetheless
authorized their exclusion from petitioner DLSU. However,
because of the dismissal of the CA case, petitioner DLSU is
now faced with the spectacle of having two different
directives from the CHED and the respondent Judge
CHED ordering the exclusion of private respondents
Bungubung, Reverente, and Valdes, Jr., and the Judge
ordering petitioner DLSU to allow them to enroll and
complete their degree courses until their graduation.
This is the reason We opt to decide the whole case on the
merits, brushing aside technicalities, in order to settle the
substantial issues involved. This Court has the power to take
cognizance of the petition at bar due to compelling reasons,
and the nature and importance of the issues raised warrant
the immediate exercise of Our jurisdiction.54 This is in
consonance with our case law now accorded near-religious
reverence that rules of procedure are but tools designed to
facilitate the attainment of justice, such that when its rigid
application tends to frustrate rather than promote substantial
justice, this Court has the duty to suspend their operation.55
I. It is the CHED, not DECS, which has the
power of supervision and review over
disciplinary cases decided by institutions
of higher learning.
Ang CHED, hindi ang DECS, ang may kapangyarihan ng
pagsubaybay at pagrepaso sa mga desisyong pandisiplina
ng mga institusyon ng mas mataas na pag-aaral.
Petitioners posit that the jurisdiction and duty to review
student expulsion cases, even those involving students in
secondary and tertiary levels, is vested in the DECS not in
the CHED. In support of their stance, petitioners cite
Sections 4,56 15(2) & (3),57 54,58 57(3)59 and 7060 of
Batas Pambansa (B.P.) Blg. 232, otherwise known as the
"Education Act of 1982."
According to them, Republic Act (R.A.) No. 7722 did not
transfer to the CHED the DECS' power of supervision/review
over expulsion cases involving institutions of higher learning.
They say that unlike B.P. Blg. 232, R.A. No. 7722 makes no
reference to the right and duty of learning institutions to
develop moral character and instill discipline among its
students. The clear concern of R.A. No. 7722 in the creation
of the CHED was academic, i.e., the formulation,
recommendation, setting, and development of academic
plans, programs and standards for institutions of higher
learning. The enumeration of CHED's powers and functions
under Section 8 does not include supervisory/review powers
in student disciplinary cases. The reference in Section 3 to
CHED's "coverage" of institutions of higher education is
limited to the powers and functions specified in Section 8.
The Bureau of Higher Education, which the CHED has
replaced and whose functions and responsibilities it has
taken over, never had any authority over student disciplinary
cases.
We cannot agree.
On May 18, 1994, Congress approved R.A. No. 7722,
otherwise known as "An Act Creating the Commission on
Higher Education, Appropriating Funds Thereof and for other
purposes."
Section 3 of the said law, which paved the way for the
creation of the CHED, provides:
Section 3. Creation of the Commission on Higher Education.
In pursuance of the abovementioned policies, the
Commission on Higher Education is hereby created,
hereinafter referred to as Commission.
The Commission shall be independent and separate from
the Department of Education, Culture and Sports (DECS)
and attached to the office of the President for administrative
purposes only. Its coverage shall be both public and private
institutions of higher education as well as degree-granting
programs in all post secondary educational institutions,
public and private.
The powers and functions of the CHED are enumerated in
Section 8 of R.A. No. 7722. They include the following:
Sec. 8. Powers and functions of the Commission. The
Commission shall have the following powers and functions:
xxxx
n) promulgate such rules and regulations and exercise such
other powers and functions as may be necessary to carry
out effectively the purpose and objectives of this Act; and
o) perform such other functions as may be necessary for its
effective operations and for the continued enhancement of
growth or development of higher education.
Clearly, there is no merit in the contention of petitioners that
R.A. No. 7722 did not transfer to the CHED the DECS'
power of supervision/review over expulsion cases involving
institutions of higher learning.
First, the foregoing provisions are all-embracing. They make
no reservations of powers to the DECS insofar as institutions
of higher learning are concerned. They show that the
authority and supervision over all public and private
institutions of higher education, as well as degree-granting
programs in all post-secondary educational institutions,
public and private, belong to the CHED, not the DECS.
Second, to rule that it is the DECS which has authority to
decide disciplinary cases involving students on the tertiary
level would render nugatory the coverage of the CHED,
which is "both public and private institutions of higher
education as well as degree granting programs in all post
secondary educational institutions, public and private." That
would be absurd.
It is of public knowledge that petitioner DLSU is a private
educational institution which offers tertiary degree programs.
Hence, it is under the CHED authority.
Third, the policy of R.A. No. 772261 is not only the
protection, fostering and promotion of the right of all citizens
to affordable quality education at all levels and the taking of
appropriate steps to ensure that education shall be
accessible to all. The law is likewise concerned with ensuring
and protecting academic freedom and with promoting its
exercise and observance for the continued intellectual
growth of students, the advancement of learning and
research, the development of responsible and effective
leadership, the education of high-level and middle-level
professionals, and the enrichment of our historical and
cultural heritage.
It is thus safe to assume that when Congress passed R.A.
No. 7722, its members were aware that disciplinary cases
involving students on the tertiary level would continue to
arise in the future, which would call for the invocation and
exercise of institutions of higher learning of their right to
academic freedom.
Fourth, petitioner DLSU cited no authority in its bare claim
that the Bureau of Higher Education, which CHED replaced,
never had authority over student disciplinary cases. In fact,
the responsibilities of other government entities having
functions similar to those of the CHED were transferred to
the CHED.62
Section 77 of the MRPS63 on the process of review in
student discipline cases should therefore be read in
conjunction with the provisions of R.A. No. 7722.
Fifth, Section 18 of R.A. No. 7722 is very clear in stating that
"[j]urisdiction over DECS-supervised or chartered state-
supported post-secondary degree-granting vocational and
tertiary institutions shall be transferred to the Commission
[On Higher Education]." This provision does not limit or
distinguish that what is being transferred to the CHED is
merely the formulation, recommendation, setting and
development of academic plans, programs and standards for
institutions of higher learning, as what petitioners would have
us believe as the only concerns of R.A. No. 7722. Ubi lex
non distinguit nec nos distinguere debemus: Where the law
does not distinguish, neither should we.
To Our mind, this provision, if not an explicit grant of
jurisdiction to the CHED, necessarily includes the transfer to
the CHED of any jurisdiction which the DECS might have
possessed by virtue of B.P. Blg. 232 or any other law or rule
for that matter.
IIa. Private respondents were accorded due process of law.
Ang mga private respondents ay nabigyan ng tamang
proseso ng batas.
The Due Process Clause in Article III, Section 1 of the
Constitution embodies a system of rights based on moral
principles so deeply imbedded in the traditions and feelings
of our people as to be deemed fundamental to a civilized
society as conceived by our entire history.64 The
constitutional behest that no person shall be deprived of life,
liberty or property without due process of law is solemn and
inflexible.65
In administrative cases, such as investigations of students
found violating school discipline, "[t]here are withal minimum
standards which must be met before to satisfy the demands
of procedural due process and these are: that (1) the
students must be informed in writing of the nature and cause
of any accusation against them; (2) they shall have the right
to answer the charges against them and with the assistance
if counsel, if desired; (3) they shall be informed of the
evidence against them; (4) they shall have the right to
adduce evidence in their own behalf; and (5) the evidence
must be duly considered by the investigating committee or
official designated by the school authorities to hear and
decide the case."66
Where a party was afforded an opportunity to participate in
the proceedings but failed to do so, he cannot complain of
deprivation of due process.67 Notice and hearing is the
bulwark of administrative due process, the right to which is
among the primary rights that must be respected even in
administrative proceedings.68 The essence of due process
is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain one's
side or an opportunity to seek reconsideration of the action
or ruling complained of.69 So long as the party is given the
opportunity to advocate her cause or defend her interest in
due course, it cannot be said that there was denial of due
process.70
A formal trial-type hearing is not, at all times and in all
instances, essential to due process it is enough that the
parties are given a fair and reasonable opportunity to explain
their respective sides of the controversy and to present
supporting evidence on which a fair decision can be
based.71 "To be heard" does not only mean presentation of
testimonial evidence in court one may also be heard
through pleadings and where the opportunity to be heard
through pleadings is accorded, there is no denial of due
process.72
Private respondents were duly informed in writing of the
charges against them by the DLSU-CSB Joint Discipline
Board through petitioner Sales. They were given the
opportunity to answer the charges against them as they, in
fact, submitted their respective answers. They were also
informed of the evidence presented against them as they
attended all the hearings before the Board. Moreover, private
respondents were given the right to adduce evidence on
their behalf and they did. Lastly, the Discipline Board
considered all the pieces of evidence submitted to it by all
the parties before rendering its resolution in Discipline Case
No. 9495-3-25121.
Private respondents cannot claim that they were denied due
process when they were not allowed to cross-examine the
witnesses against them. This argument was already rejected
in Guzman v. National University73 where this Court held
that "x x x the imposition of disciplinary sanctions requires
observance of procedural due process. And it bears
stressing that due process in disciplinary cases involving
students does not entail proceedings and hearings similar to
those prescribed for actions and proceedings in courts of
justice. The proceedings in student discipline cases may be
summary; and cross examination is not, x x x an essential
part thereof."
IIb. Petitioner DLSU, as an institution of higher learning,
possesses academic freedom which includes determination
of who to admit for study.
Ang petitioner DLSU, bilang institusyon ng mas mataas na
pag-aaral, ay nagtataglay ng kalayaang akademiko na sakop
ang karapatang pumili ng mga mag-aaral dito.
Section 5(2), Article XIV of the Constitution guaranties all
institutions of higher learning academic freedom. This
institutional academic freedom includes the right of the
school or college to decide for itself, its aims and objectives,
and how best to attain them free from outside coercion or
interference save possibly when the overriding public
interest calls for some restraint.74 According to present
jurisprudence, academic freedom encompasses the
independence of an academic institution to determine for
itself (1) who may teach, (2) what may be taught, (3) how it
shall teach, and (4) who may be admitted to study.75
It cannot be gainsaid that "the school has an interest in
teaching the student discipline, a necessary, if not
indispensable, value in any field of learning. By instilling
discipline, the school teaches discipline. Accordingly, the
right to discipline the student likewise finds basis in the
freedom "what to teach."76 Indeed, while it is categorically
stated under the Education Act of 1982 that students have a
right "to freely choose their field of study, subject to existing
curricula and to continue their course therein up to
graduation,"77 such right is subject to the established
academic and disciplinary standards laid down by the
academic institution. Petitioner DLSU, therefore, can very
well exercise its academic freedom, which includes its free
choice of students for admission to its school.
IIc. The guilt of private respondents Bungubung, Reverente
and Valdes, Jr. was proven by substantial evidence.
Ang pagkakasala ng private respondents na sina
Bungubung, Reverente at Valdes, Jr. ay napatunayan ng
ebidensiyang substansyal.

As has been stated earlier, private respondents interposed
the common defense of alibi. However, in order that alibi
may succeed as a defense, "the accused must establish by
clear and convincing evidence (a) his presence at another
place at the time of the perpetration of the offense and (b)
the physical impossibility of his presence at the scene of the
crime."78
On the other hand, the defense of alibi may not be
successfully invoked where the identity of the assailant has
been established by witnesses.79 Positive identification of
accused where categorical and consistent, without any
showing of ill motive on the part of the eyewitness testifying,
should prevail over the alibi and denial of appellants whose
testimonies are not substantiated by clear and convincing
evidence.80 Well-settled is the rule that denial and alibi,
being weak defenses, cannot overcome the positive
testimonies of the offended parties.81
Courts reject alibi when there are credible eyewitnesses to
the crime who can positively identify the accused.82 Alibi is
an inherently weak defense and courts must receive it with
caution because one can easily fabricate an alibi.83
Jurisprudence holds that denial, like alibi, is inherently weak
and crumbles in light of positive declarations of truthful
witnesses who testified on affirmative matters that accused
were at the scene of the crime and were the victim's
assailants. As between categorical testimonies that ring of
truth on one hand and a bare denial on the other, the former
must prevail.84 Alibi is the weakest of all defenses for it is
easy to fabricate and difficult to disprove, and it is for this
reason that it cannot prevail over the positive identification of
accused by the witnesses.85
The required proof in administrative cases, such as in
student discipline cases, is neither proof beyond reasonable
doubt nor preponderance of evidence but only substantial
evidence. According to Ang Tibay v. Court of Industrial
Relations,86 it means "such reasonable evidence as a
reasonable mind might accept as adequate to support a
conclusion."
Viewed from the foregoing, We reject the alibi of private
respondents Bungubung, Valdes Jr., and Reverente.1awphi1
They were unable to show convincingly that they were not at
the scene of the crime on March 29, 1995 and that it was
impossible for them to have been there. Moreover, their alibi
cannot prevail over their positive identification by the victims.
We hark back to this Court's pronouncement affirming the
expulsion of several students found guilty of hazing:
No one can be so myopic as to doubt that the immediate
reinstatement of respondent students who have been
investigated and found guilty by the Disciplinary Board to
have violated petitioner university's disciplinary rules and
standards will certainly undermine the authority of the
administration of the school. This we would be most loathe
to do.
More importantly, it will seriously impair petitioner university's
academic freedom which has been enshrined in the 1935,
1973 and the present 1987 Constitution.87
Certainly, private respondents Bungubung, Reverente and
Valdes, Jr. do not deserve to claim a venerable institution as
their own, for they may foreseeably cast a malevolent
influence on the students currently enrolled, as well as those
who come after them.88 It must be borne in mind that
universities are established, not merely to develop the
intellect and skills of the studentry, but to inculcate lofty
values, ideals and attitudes; nay, the development, or
flowering if you will, of the total man.89
As for private respondent Aguilar, however, We are inclined
to give credence to his alibi that he was at Camp Crame in
Quezon City at the time of the incident in question on March
29, 1995. This claim was amply corroborated by the
certification that he submitted before the DLSU-CSB Joint
Discipline Board, to wit:
C E R T I F I C AT I O N
TO WHOM THIS MAY CONCERN:
We, the undersigned, hereby declare and affirm by way of
this Certification that sometime on March 29, 1995, at about
and between 4:30 P.M. and 5:30 P.M., we were together with
Alvin A. Aguilar, at Kiangan Hall, inside Camp Crame,
Quezon City, meeting in connection with an affair of our
class known as Class 7, Batch 89 of the Philippine
Constabulary discussing on the proposed sponsorship of
TAU GAMMA PHI from said Batch '89 affair.
That the meeting was terminated at about 6:30 P.M. that
evening and Alvin Aguilar had asked our permission to leave
and we saw him leave Camp Crame, in his car with the
driver.
April 18, 1995, Camp Crame, Quezon City.90
The said certification was duly signed by PO3 Nicanor R.
Faustino (Anti-Organized Crime CIC, NCR), PO3 Alejandro
D. Deluviar (ODITRM, Camp Crame, Quezon City), PO2
Severino C. Filler (TNTSC, Camp Crame, Quezon City), and
PO3 Ireneo M. Desesto (Supply Center, PNPLSS). The rule
is that alibi assumes significance or strength when it is amply
corroborated by credible and disinterested witnesses.91 It is
true that alibi is a weak defense which an accused can easily
fabricate to escape criminal liability. But where the
prosecution evidence is weak, and betrays lack of credibility
as to the identification of defendant, alibi assumes
commensurate strength. This is but consistent with the
presumption of innocence in favor of accused.92
Alibi is not always undeserving of credit, for there are times
when accused has no other possible defense for what could
really be the truth as to his whereabouts at the crucial time,
and such defense may, in fact, tilt the scales of justice in his
favor.93
III. The penalty of expulsion imposed by DLSU on private
respondents is disproportionate to their misdeed.
Ang parusang expulsion na ipinataw ng DLSU sa private
respondents ay hindi angkop sa kanilang pagkakasala.
It is true that schools have the power to instill discipline in
their students as subsumed in their academic freedom and
that "the establishment of rules governing university-student
relations, particularly those pertaining to student discipline,
may be regarded as vital, not merely to the smooth and
efficient operation of the institution, but to its very
survival."94 This power, however, does not give them the
untrammeled discretion to impose a penalty which is not
commensurate with the gravity of the misdeed. If the concept
of proportionality between the offense committed and the
sanction imposed is not followed, an element of arbitrariness
intrudes. That would give rise to a due process question.95
We agree with respondent CHED that under the
circumstances, the penalty of expulsion is grossly
disproportionate to the gravity of the acts committed by
private respondents Bungubung, Reverente, and Valdes, Jr.
Each of the two mauling incidents lasted only for few
seconds and the victims did not suffer any serious injury.
Disciplinary measures especially where they involve
suspension, dismissal or expulsion, cut significantly into the
future of a student. They attach to him for life and become a
mortgage of his future, hardly redeemable in certain cases.
Officials of colleges and universities must be anxious to
protect it, conscious of the fact that, appropriately construed,
a disciplinary action should be treated as an educational tool
rather than a punitive measure.96
Accordingly, We affirm the penalty of exclusion97 only, not
expulsion,98 imposed on them by the CHED. As such,
pursuant to Section 77(b) of the MRPS, petitioner DLSU may
exclude or drop the names of the said private respondents
from its rolls for being undesirable, and transfer credentials
immediately issued.
WHEREFORE, the petition is PARTIALLY GRANTED. The
Court of Appeals Resolutions dated July 30, 1996 and dated
October 15, 1996, and Regional Trial Court of Manila,
Branch 36, Order dated January 7, 1997 are ANNULLED
AND SET ASIDE, while CHED Resolution 181-96 dated May
14, 1996 is AFFIRMED.
Petitioner DLSU is ordered to issue a certificate of
completion/graduation in favor of private respondent Aguilar.
On the other hand, it may exclude or drop the names of
private respondents Bungubung, Reverente, and Valdes, Jr.
from its rolls, and their transfer credentials immediately
issued.
SO ORDERED
Tumey v. Ohio, 273 U.S. 510 (1927)
Tumey v. Ohio
No. 527
Argued November 29, 30, 1926
Decided March 7, 1927
273 U.S. 510
ERROR TO THE SUPREME COURT OF OHIO
Syllabus
1. To subject a defendant to trial in a criminal case involving
his liberty or property before a judge having a direct,
personal, substantial interest in convicting him is a denial of
due process of law. P. 273 U. S. 522.
2. A system by which an inferior judge is paid for his service
only when he convicts the defendant has not become so
customary in the common law or in this country that it can be
regarded as due process where the costs usually imposed
are not so small as to be within the maxim de minimis non
curat lex. Pp. 273 U. S. 523, 273 U. S. 531.
Page 273 U. S. 511
3. Under statutes of Ohio, offenses against State prohibition,
involving a wide range of fines enforceable by imprisonment,
may be tried without a jury, before the mayor of any rural
village situate in the county (however populous) in which
offenses occur; his judgment upon the facts is final and
conclusive unless so clearly unsupported as to indicate
mistake, bias, or willful disregard of duty; the fines are
divided between the State and village; the village, by means
of the fines collected, hires attorneys and detectives to arrest
alleged offenders anywhere in the county and prosecute
them before the mayor; in addition to his salary, the mayor,
when he convicts, but not otherwise, receive his fees and
cost amounting to a substantial income; the fine offer a
means of adding materially to the financial prosperity of the
village, for which the mayor, in his executive capacity, is
responsible. Held violative of the Fourteenth Amendment.
Pp. 273 U. S. 520, 273 U. S. 531.
115 Oh.St. 701, reversed.
ERROR to a judgment of the Supreme Court of Ohio which
declined to review a judgment of the State Court of Appeals,
22 Oh.L.Rep. 634, reversing a judgment of the Court of
Common Pleas of Hamilton County, 25 Oh.Nisi Prius (N.S.)
580, which reversed a judgment of the Mayor of the Village
of North College Hill convicting and fining Tumey for violation
of the Ohio Prohibition Act and ordering that he be
imprisoned until the fine and costs were paid.
Page 273 U. S. 514
MR. CHIEF JUSTICE TAFT delivered the opinion of the
Court.
The question in this case is whether certain statutes of Ohio,
in providing for the trial by the mayor of a village of one
accused of violating the Prohibition Act of the State, deprive
the accused of due process of law and violate the
Fourteenth Amendment to the Federal Constitution
Page 273 U. S. 515
because of the pecuniary and other interest which those
statutes give the mayor in the result of the trial.
Tumey, the plaintiff in error, hereafter to be called the
defendant, was arrested and brought before Mayor Pugh, of
the Village of North College Hill, charged with unlawfully
possessing intoxicating liquor. He moved for his dismissal
because of the disqualification of the Mayor to try him, under
the Fourteenth Amendment. The Mayor denied the motion,
proceeded to the trial, convicted the defendant of unlawfully
possessing intoxicating liquor within Hamilton County, as
charged, fined him $100, and ordered that he be imprisoned
until the fine and costs were paid. He obtained a bill of
exceptions and carried the case on error to the Court of
Common Pleas of Hamilton County. That court heard the
case and reversed the judgment on the ground that the
Mayor was disqualified, as claimed. 25 Ohio Nisi Prius (N.S.)
580. The State sought review by the Court of Appeals of the
first appellate district of Ohio, which reversed the Common
Pleas and affirmed the judgment of the Mayor. 23 Ohio Law
Reporter, 634.
On May 4, 1926, the State Supreme Court refused
defendant's application to require the Court of Appeals to
certify its record in the case. The defendant then filed a
petition in error in that court as of right, asking that the
judgment of the Mayor's Court and of the Appellate Court be
reversed on constitutional grounds. On May 11, 1926, the
Supreme Court adjudged that the petition be dismissed for
the reason that no debatable constitutional question was
involved in the cause. The judgment was then brought here
upon a writ of error allowed by the Chief Justice of the State
Supreme Court, to which it was rightly directed. Matthews v.
Huwe, Treasurer, 269 U. S. 262; Hetrick v. Village of Lindsey,
265 U. S. 384. This brings us to the merits of the case.
Page 273 U. S. 516
The defendant was arrested and charged with the unlawful
possession of intoxicating liquor at White Oak, another
village in Hamilton County, Ohio, on a warrant issued by the
Mayor of North College Hill. The Mayor acted under the
sections of the State Prohibition Act, and Ordinance No. 125
of the Village of North College Hill adopted in pursuance
thereof.
Section 6212-15 (Ohio General Code) provides that "No
person shall after the passage of this act manufacture
possess . . . any intoxicating liquors. . . ."
Section 6212-17 provides that
". . . any person who violates the provisions of this act
(General Code, Sections 6212-13 to 6212-20) for a first
offense shall be fined not less than one hundred dollars nor
more than one thousand dollars; for a second offense he
shall be fined not less than three hundred dollars nor more
than two thousand dollars; for a third and each subsequent
offense he shall be fined not less than five hundred dollars
nor more than two thousand dollars and be imprisoned in the
state penitentiary not less than one year nor more than five
years. . . ."
The Mayor has authority, which he exercised in this case, to
order that the person sentenced to pay a fine shall remain in
prison until the fine and costs are paid. At the time of this
sentence, the prisoner received a credit of sixty cents a day
for each day's imprisonment. By a recent amendment, that
credit has been increased to one dollar and a half a day.
Sections 13716, 13717, Ohio Gen.Code.
Section 62118 provides, in part, that
"Any justice of the peace, mayor, municipal or police judge,
probate or common pleas judge within the county with whom
the affidavit is filed charging a violation of any of the
provisions of this act (G.C. Sections 6212-13 to 6212-20)
when the offense is alleged to have been committed in the
county in which such mayor, justice of the peace, or judge
Page 273 U. S. 517
may be sitting, shall have final jurisdiction to try such cases
upon such affidavits without a jury, unless imprisonment is a
part of the penalty, but error may be prosecuted to the
judgment of such mayor, justice of the peace, or judge as
herein provided."
Error from the Mayor's Court lies to the court of Common
Pleas of the County, and a bill of exceptions is necessary to
present questions arising on the evidence. Sections 10359,
10361, Ohio General Code. The appellate review in respect
of evidence is such that the judgment can only be set aside
by the reviewing court on the ground that it is so clearly
unsupported by the weight of the evidence as to indicate
some misapprehension or mistake or bias on the part of the
trial court, or a willful disregard of duties. Datesh v. State, 23
Ohio Nisi Prius (N.S.) 273.
Section 6212-19 provides that
"Money arising from fines and forfeited bonds shall be paid
one-half into the state treasury credited to the general
revenue fund, one-half to the treasury of the township,
municipality or county where the prosecution is held,
according as to whether the officer hearing the case is a
township, municipal, or county officer."
Section 6212-37 provides that
"The council of any city or village may by ordinance
authorize the use of any part of the fines collected for the
violation of any law prohibiting the manufacture and sale of
intoxicating liquors, for the purpose of hiring attorneys,
detectives. or secret service officers to secure the
enforcement of such prohibition law. And such council are
hereby authorized to appropriate not more than five hundred
dollars annually from the general revenue funds for the
purpose of enforcing the law prohibiting the manufacture and
sale of intoxicating liquors, when there are no funds
available from the fines collected for the violation of such
prohibitory law."
Under the authority of the last section, the Village Council of
North College Hill passed Ordinance No. 125, as follows:
Page 273 U. S. 518
"An ordinance to provide for compensation to be paid from
the secret service funds of the Village of North College Hill,
Hamilton County, Ohio, created by authority of Section
62137, of the General Code of Ohio, to detectives, secret
service officers, deputy marshals' and attorneys' fees, costs,
etc., for services in securing evidence necessary to
conviction and prosecuting violation of the law of the state of
Ohio prohibiting the liquor traffic."
"Be it ordained by the Council of the Village of North College
Hill, Hamilton County, Ohio:"
"Section I. That fifty percent of all moneys hereafter paid into
the treasury of said village of North College Hill, Ohio, that is
one-half of the share of all fines collected and paid into and
belonging to said village of North College Hill, Ohio, received
from fines collected under any law of the state of Ohio
prohibiting the liquor traffic, shall constitute a separate fund
to be called the Secret Service Fund to be used for the
purpose of securing the enforcement of any prohibition law."
"Section II. That deputy marshals of the village of North
College Hill, Ohio, shall receive as compensation for their
services in securing the evidence necessary to secure the
conviction of persons violating the law of the state of Ohio,
prohibiting the liquor traffic, an amount of money equal to 15
percent. of the fine collected, and other fees allowed by law."
"Section II. That the attorney at law of record prosecuting
persons charged with violating the law of the state of Ohio,
prohibiting the liquor traffic, shall receive as compensation
for legal services an amount equal to 10 percent. of the fine
collected, in all cases, whether the plea be guilty or not
guilty."
"Section IV. That detectives and secret service officers shall
receive as compensation for their services in securing the
evidence necessary to secure the conviction of
Page 273 U. S. 519
persons violating the law of the state of Ohio, prohibiting the
liquor traffic, an amount of money equal to 15 percent. of the
fine collected."
"Section V. That the mayor of the village of North College
Hill, Ohio, shall receive or retain the amount of his costs in
each case, in addition to his regular salary, as compensation
for hearing such cases."
"Section VI. This ordinance is hereby declared to be an
emergency ordinance, necessary to the immediate
preservation of the public peace and safety, made necessary
by reason of the flagrant violation of the laws of Ohio,
enacted to prohibit traffic in intoxicating liquors, and shall be
in effect from and after its passage."
The duties of the Mayor of a village in Ohio are primarily
executive. Sections of the General Code of Ohio provide as
follows:
"Section 4248. The executive power and authority of villages
shall be vested in a mayor, clerk, treasurer, marshal, street
commissioner, and such other officers and departments
thereof as are created by law."
"Section 4255. . . . He (the Mayor) shall be the chief
conservator of the peace within the corporation. . . . He shall
be the president of the council, and shall preside at all
regular and special meetings thereof, but shall have no vote
except in case of a tie."
"Section 4258. . . . He shall see that all ordinances, bylaws
and resolutions are faithfully obeyed and enforced."
"Section 4259. The mayor shall communicate to council from
time to time a statement of the finances of the municipality
and such other information relating thereto and to the
general condition of affairs of the municipality as he deems
proper or as may be required by council."
"Section 4262. The mayor shall supervise the conduct of all
the officers of the corporation. . . . "
Page 273 U. S. 520
The fees which the Mayor and Marshal received in this case
came to them by virtue of the general statutes of the state
applying to all state cases, liquor and otherwise. The Mayor
was entitled to hold the legal fees taxed in his favor. Ohio
General Code, 4270; State v. Nolte, 111 O.S. 486.
Moreover, the North College Hill village council sought to
remove all doubt on this point by providing ( 5, Ord. 125,
supra), that he should receive or retain the amount of his
costs in each case, in addition to his regular salary, as
compensation for hearing such cases. But no fees or costs
in such cases are paid him except by the defendant if
convicted. There is, therefore, no way by which the Mayor
may be paid for his service as judge if he does not convict
those who are brought before him, nor is there any fund from
which marshals, inspectors and detectives can be paid for
their services in arresting and bringing to trial and furnishing
the evidence to convict in such cases, except it be from the
initial $500 which the village may vote from its treasury to set
the court going, or from a fund created by the fines thereafter
collected from convicted defendants.
By an Act of 1913 (103 O.L. 290), the Mayor's court in
villages in Hamilton County and in half a dozen other
counties with large cities was deprived of jurisdiction to hear
and punish misdemeanors committed in the county beyond
the limits of the corporation. The Prohibition Act, known as
the Crabbe Act, adopted in 1920 (108 O.L., Pt. 1, 388 and
Pt. 2, 1182) changed this, and gave to the Mayor of every
village in the State jurisdiction within the county in which it
was situate to try violations of that Act.
Counsel for the State in their brief explain the vesting by
state legislatures of this country of jurisdiction in village
courts as follows:
"The purpose of extending the jurisdiction in the first instance
was to break up places of outlawry that were located on the
municipal boundary just outside of the city. The Legislature
also
Page 273 U. S. 521
faced the situation that, in some of the cities the law
enforcement agencies were failing to perform their duty, and
therefore, in order that those forces that believe in
enforcement and upholding of law might have some courts
through which process could be had, it gave to mayors
county-wide jurisdiction."
It was further pointed out in argument that the system by
which the fines to be collected were to be divided between
the State and the village was for the proper purpose of
stimulating the activities of the village officers to such due
enforcement.
The Village of North College Hill in Hamilton County, Ohio, is
shown by the federal census to have a population of 1104.
That of Hamilton County, including the City of Cincinnati, is
more than half a million. The evidence discloses that Mayor
Pugh came to office after ordinance No. 125 was adopted,
and that there was a division of public sentiment in the
village as to whether the ordinance should continue in effect.
A petition opposing it and signed by a majority of the voters
was presented to Mayor Pugh. To this, the Mayor answered
with the declaration that, if the village was in need of
finances, he was in favor of, and would carry on, "the Liquor
Court," as it was popularly called, but that, if the court was
not needed for village financial reasons, he would not do so.
It appears that substantial sums were expended out of the
village treasury, from the fund made up of the fines thus
collected, for village improvements and repairs. The Mayor
was the owner of a house in the village.
Between May 11, 1923 and December 31, 1923, the total
amount of fines for violation of the prohibition law, collected
by this village court, was upwards of $20,000, from which the
State received $8,992.50, North College Hill received
$4,471.25 for its general uses, $2,697.25 was placed to the
credit of the village safety fund, and the balance was put in
the secret service fund. Out of this, the person acting as
prosecutor in the liquor court received
Page 273 U. S. 522
in that period $1,796.50; the deputy marshals, inspectors
and other employees, including the detectives, received
$2,697.75, and $438.50 was paid for cost in transporting
prisoners, serving writs and other services in connection with
the trial of these cases. Mayor Pugh received $696.35 from
these liquor cases during that period as his fees and costs,
in addition to his regular salary.
That officers acting in a judicial or quasi-judicial capacity are
disqualified by their interest in the controversy to be decided
is, of course, the general rule. Dimes v. Grand Junction
Canal, 3 H.L.C. 759; Gregory v. Railroad, 4 O.S. 675; Peace
v. Atwood, 13 Mass. 324; Taylor v. Commissioners, 105
Mass. 225; Kentish Artillery v. Gardiner, 15 R.I. 296; Moses
v. Julian, 45 N.H. 52; State v. Crane, 36 N.J.L. 394; Railroad
Company v. Howard, 20 Mich. 18; Stockwell v. Township, 22
Mich. 341; Findley v. Smith, 42 W.Va. 299; Nettleton's
Appeal, 28 Conn. 268; Cooley's Constitutional Limitations,
7th ed., p. 592, et seq. Nice questions, however, often arise
as to what the degree or nature of the interest must be. One
is in respect of the effect of the membership of a judge in a
class of taxpayers or others to be affected by a principle of
law, statutory or constitutional, to be applied in a case
between other parties and in which the judge has no other
interest. Then the circumstance that there is no judge not
equally disqualified to act in such a case has been held to
affect the question. Wheeling v. Black, 25 W.Va. 266, 280;
Peck v. Freeholders of Essex, 20 N.J.L. 457; Dimes v. Grand
Junction Canal, 3 H.L.C. 759 (see Baron Parke's Answer for
the Judges, pp. 785, 787); Year Book, 8 Henry 6, 19, s.c. 2
Roll.Abridg. 93; Evans v. Gore, 253 U. S. 245, 253 U. S. 247;
Stuart v. Mechanics' & Farmers' Bank, 19 Johns. 496;
Ranger v. Railroad, 5 H.L.C. 72. We are not embarrassed by
such considerations here, for there were available in this
case other judicial officers who had
Page 273 U. S. 523
no disqualification either by reason of the character of their
compensation or their relation to the village government.
All questions of judicial qualification may not involve
constitutional validity. Thus, matters of kinship, personal
bias, state policy, remoteness of interest, would seem
generally to be matters merely of legislative discretion.
Wheeling v. Black, 25 W.Va. 266, 270. But it certainly
violates the Fourteenth Amendment, and deprives a
defendant in a criminal case of due process of law, to subject
his liberty or property to the judgment of a court the judge of
which has a direct, personal, substantial, pecuniary interest
in reaching a conclusion against him in his case.
The Mayor of the Village of North College Hill, Ohio, had a
direct, personal, pecuniary interest in convicting the
defendant who came before him for trial, in the twelve dollars
of costs imposed in his behalf, which he would not have
received if the defendant had been acquitted. This was not
exceptional, but was the result of the normal operation of the
law and the ordinance. Counsel for the State do not deny
this, but assert the validity of the practice as an exception to
the general rule. The rely upon the cases of Ownbey v.
Morgan, 256 U. S. 94; Murray's Lessee v. Hoboken Land
and Improvement Company, 18 How. 272, 59 U. S. 276-280.
These cases show that, in determining what due process of
law is, under the Fifth or Fourteenth Amendment, the Court
must look to those settled usages and modes of proceeding
existing in the common and statute law of England before
the emigration of our ancestors, which were shown not to
have been unsuited to their civil and political condition by
having been acted on by them after the settlement of this
country. Counsel contend that, in Ohio and in other States, in
the economy which it is found necessary to maintain in the
administration of justice in the inferior courts by justices of
the peace and by judicial officers of like jurisdiction, the only
compensation which the State and county
Page 273 U. S. 524
and township can afford is the fees and costs earned by
them, and that such compensation is so small that it is not to
be regarded as likely to influence improperly a judicial officer
in the discharge of his duty, or as prejudicing the defendant
in securing justice, even though the magistrate will receive
nothing if the defendant is not convicted.
We have been referred to no cases at common law in
England prior to the separation of colonies from the mother
country showing a practice that inferior judicial officers were
dependent upon the conviction of the defendant for receiving
their compensation. Indeed, in analogous cases, it is very
clear that the slightest pecuniary interest of any officer,
judicial or quasi-judicial, in the resolving of the subject matter
which he was to decide rendered the decision voidable.
Bonham's Case, 8 Coke, 118a; s.c. 2 Brownlow and
Goldesborough's Rep. 255; City of London v. Wood, 12
Modern Rep. 669, 687; Day v. Savage, Hobart 85, 87;
Hesketh v. Braddock, 3 Burrows 1847, 1856, 1857 and
1858.
As early as the 12th Richard II, A.D. 1388, it was provided
that there should be a commission of the justices of the
peace, with six justices in the county once a quarter, which
might sit for three days, and that the justices should receive
four shillings a day "as wages," to be paid by the sheriffs out
of a fund made up of fines and amercements, and that that
fund should be added to out of the fines and amercements
from the courts of the Lords of the Franchises, which were
hundred courts allowed by the King by grant to individuals.
It was required that the justices of the peace should be
knights, esquires or gentlemen of the land -- qualifications
that were not modified until 1906. The wages paid were used
"to defray their common diet," and soon became obsolete. 1
Holdsworth's History of English Law, 288, 289. The wages
paid were not dependent on conviction
Page 273 U. S. 525
of the defendant. They were paid at a time when the
distinction between torts and criminal case was not clear,
Holdsworth, Vol. 2, 363, 365; Vol. 3, 328, and they came
from a fund which was created by fines and amercements
collected from both sides in the controversy. There was
always a plaintiff, whether in the action for a tort or the
prosecution for an offense. In the latter, he was called the
prosecutor. If he failed to prove his case, whether civil or
criminal, he was subject to amercement pro falso clamore,
while if he succeeded, the defendant was in misericordia.
See Comm. v. Johnson, 5 S. & R. (Pa.) 195, 198; Musser v.
Good, 11 Id. 247. Thus, in the outcome, someone would be
amerced in every case, and the amercements generally
went to the Crown, and the fund was considerable. The
Statute of Richard II remained on the statute book until 1855,
when it was repealed by the 18th and 19th Victoria.
Meantime, the hundred courts by franchise had largely
disappeared. The wages referred to were not part of the
costs. The costs at common law were the amounts paid
either by the plaintiff or prosecutor or by the defendant for
the witnesses or services of the court officers. Burn's Justice,
Vol. 1, p. 628. Chitty's Criminal Law, 4 ed. 1841, Vol. 1, 829.
See also 14 George III, ch. 20, 1774. For hundreds of years,
the justices of the peace of England seem not to have
received compensation for court work. Instead of that, they
were required, upon entering upon the office, to pay certain
fees. Holdsworth, Vol. 1, p. 289; 19 Halsbury's Laws of
England, 1152. Local judges in towns are paid salaries.
There was at the common law the greatest sensitiveness
over the existence of any pecuniary interest, however small
or infinitesimal, in the justices of the peace. In Hawkins, 2
Pleas of the Crown, we find the following:
"The general rule of law certainly is that justices of the peace
ought not to execute their office in their own case [citing 1
Salk. 396], and even in cases where such
Page 273 U. S. 526
proceeding seems indispensably necessary, as in being
publicly assaulted or personally abused, or their authority
otherwise contemned while in the execution of their duty, yet
if another justice be present, his assistance should be
required to punish the offender (Stra. 240)."
"And by the common law, if an order of removal were made
by two justices, and one of them was an inhabitant of the
parish from which the pauper was removed, such order was
illegal and bad on the ground that the justice who was an
inhabitant was interested, as being liable to the poor's rate.
(Rex v. Great Chart, Burr. S.C.194, Stra. 1173.)"
And this strict principle, unless there is relief by the statute,
is seen in modern cases. Queen v. The Recorder of
Cambridge, 8 Ellis & Blackburn, 637; Regina v. Hammond, 9
Law Times Reports (N.S.) 423; The Queen v. Rand, Law
Reports, 1st Queen's Bench, 230; Queen v. Gafford, 1st
Queen's Bench Division, 381; 19 Halsbury's Laws of
England 1156.
There was, then, no usage at common law by which justices
of the peace or inferior judicial officers were paid fees on
condition that they convicted the defendants, and such a
practice certainly cannot find support as due process of law
in English precedent. It may be that the principle, as stated
in Blackstone, Book 3rd, page 400, that the King shall
neither pay nor receive costs, because it is the King's
prerogative not to pay them to a subject and is beneath his
dignity to receive them, was misunderstood and led, as
suggested by Mr. Lewis in his edition of Blackstone, Vol. 3,
p. 400, n. 60, to the practice in some States, in minor cases,
of allowing inferior judges no compensation except by fees
collected of the convicted defendant; but whether it did or
not, the principle relied on did not support the practice. That
practice has prevailed, and still prevails, in Arkansas,
Kentucky, Nebraska, North Carolina, Georgia, Ohio and
Texas, and it seems
Page 273 U. S. 527
at one time to have obtained in Indiana, Oregon, Illinois and
Alabama.
In two of these States only has the question been
considered by their courts, and it has been held that
provision for payment to the judge of fees only in case of
conviction does not disqualify him. Those are Bennett v.
State, 4 Tex.App. 72; Wellmaker v. Terrell, 3 Ga.App. 791.
There is no discussion in either of the question of due
process of law. The existence of a statute authorizing the
practice seems to have been the controlling consideration.
Two other cases are cited. In Ex parte Guerrero, 69 Cal. 88,
the judge was paid a regular salary, fixed by law. The fund
out of which this was paid was increased by fees and fines
collected in his court, but there is no evidence that payment
of his salary was dependent on the amount of his collections
or convictions. In Herbert v. Baltimore County, 97 Md. 639,
the action was by a justice of the peace against a county for
services in criminal cases. A new law limited him to $10 a
month. The statement of the case does not distinctly show
that, in convictions, he would have had a larger
compensation from his costs collected out of the defendant,
but this may be assumed from the argument. His contention
was that the new law was invalid because it did not give the
defendants before him due process. The court held against
him, chiefly on the ground that he must be satisfied with the
compensation the law afforded him. Responding to his
argument that the new law was invalid because justices
would be induced to convict when in justice they should
acquit, the court said:
"We cannot recognize the force of this suggestion, founded
as it is upon the assumption that the justices will violate their
oaths and the duties of their office, and not upon anything
that the law authorizes to be done."
So far as the case goes, it is an authority for the contention
of the State, but the issue thus raised was not
Page 273 U. S. 528
considered at length, and was not one which, in such an
action, the court would be patient to hear pressed by the
justice whose constitutional rights were not affected. Tyler v.
Court, 179 U. S. 405, 179 U. S. 409; California Reduction
Co. v. Sanitary Reduction Works, 199 U. S. 306, 199 U. S.
318.
In the case of Probasco v. Raine, Auditor, 50 O.S. 378, the
question arose whether the fee of 4 percent. payable to
county auditors for placing omitted property on the duplicate
list for taxation, which required investigation and quasi-
judicial consideration, was invalid. The court held that it was
not, and that the objection urged there could not be based
on the argument that a man could not be a judge in his own
case; that the auditor had no case to be adjudged, but that,
on the contrary, he was the taxing officer before whom other
parties were cited to appear and show cause why they
should not bear their equal burden of taxation. The court
said that the action of the auditor was not final so as to cut
off further inquiry, but that the whole case might be gone into
anew by proper proceedings in court. An exactly opposite
conclusion was reached by the United States Circuit Court
for the Northern District of Ohio in Meyers v. Shields, 61 Fed.
713, 725 et seq.
In other States than those above-mentioned, the minor
courts are paid for their services by the State or county
regardless of acquittal or conviction, except that, in Virginia,
the minor courts receive one-half of the usual fees where
there is acquittal. Four States have put into their
constitutions a provision that the State must pay the costs in
such cases in case of acquittal. They are California, Florida,
Louisiana and South Carolina.
The strict common law rule was adopted in this country as
one to be enforced where nothing but the common law
controlled, and citizens and taxpayers have been held
incompetent to sit in suits against the municipal corporation
of which they have been residents. Diveny v.
Page 273 U. S. 529
Elmira, 51 N.Y. 506; Corwein v. Names, 11 Johns. 76; Clark
v. Lamb, 2 Allen 396; Dively v. Cedar Falls, 21 Iowa 565;
Fulweiler v. St. Louis, 61 Mo. 479; Petition of New Boston,
49 N.H. 328; Commonwealth v. McLane, 4 Gray 427; Fine v.
St. Louis Public Schools, 30 Mo. 166, 173. With other courts,
however, and with the legislatures, the strict rule seemed to
be inconvenient, impracticable, and unnecessary, and the
view was taken that such remote or minute interest in the
litigation might be declared by the Legislature not to be a
reason for disqualification of a judge or juror.
A case, much cited, in which this conclusion was reached
and in which the old English corporation cases were
considered was that of City Council v. Pepper, 1 Richardson
(S.C.) 364. The recorder of the City of Charleston sentenced
a nonresident of the city for violation of a city ordinance
requiring him to take out a license for what he did or to pay a
fine not exceeding $20. The contention was that the
defendant was a noncorporator and nonresident, and not
subject to the jurisdiction of the city court; that the recorder
was a corporator and interested in the penalty, and therefore
was not competent to try the cause. The Court said (p. 366)
in respect to Hesketh v. Braddock, 3 Burrows 1847, supra:
"It will be remarked that that case depends altogether upon
the common law, and if the city court depended upon the
same for its jurisdiction, the objection might be fatal. But the
establishment and jurisdiction of the city court commences
with the Act of 1801. By that Act, it is clothed with the power
of trying all offences against the by laws of the city, and for
that purpose is given concurrent jurisdiction with the court of
Sessions. This grant of power is from all the people of the
State, through their Legislature, and surely they have the
power to dispense with the common law objection that the
corporators
Page 273 U. S. 530
were interested, and ought not to be intrusted with the
enforcement of their laws against others. The authority given
to the city court to try all offenders against the city
ordinances impliedly declares that, notwithstanding the
common law objection, it was right and proper to give it the
power to enforce the city law against all offenders. That there
was great reason in this cannot be doubted when it is
remembered that the interest of the corporators is so minute
as not to be even thought of by sheriff, juror, or judge. It is
very much like the interest which similar officers would feel in
enforcing a State law the sanction of which was a penalty.
The sum thus to be recovered goes in exoneration of some
part of the burden of government to which every citizen is
subjected, but such an interest has no effect upon the mind.
It is too slight to excite prejudice against a defendant. The
same thing is the case here. For the judge, sheriff and jurors,
are members of a corporation of many thousand members.
What interest of value have they in a fine of twenty dollars? It
would put a most eminent calculator to great trouble to
ascertain the very minute grain of interest which each of
these gentlemen might have. To remove so shadowy and
slight an objection, the Legislature thought proper to clothe
the city court, consisting of its judge, clerk, sheriff and jurors,
with authority to try the defendant, and he cannot now object
to it."
And the same view is taken in Commonwealth v. Ryan, 5
Mass. 90; Commonwealth v. Reed, 1 Gray 472, 475;
Thomas v. Mt. Vernon, 9 Ohio 290; Commissioners v. Lytle,
3 Ohio 289; Wheeling v. Black, 25 W.Va. 266, 280; Board of
Justices v. Fennimore, 1 N.J.L.190; Foreman v. Mariana, 43
Ark. 324; Cartersville v. Lyon, 69 Ga. 577; Omaha v.
Olmstead, 5 Neb. 446; Hill v. Wells, 6 Pickering 104;
Commonwealth v. Emery, 11 Cushing 406; Barnett
Page 273 U. S. 531
v. State, 4 Tex.App. 72; Wellmaker v. Terrell, 3 Ga.App. 791;
State v. Craig, 80 Maine 85.
Mr. Justice Cooley, in his work on Constitutional Limitations,
7th edition, page 594, points out that the real ground of the
ruling in these cases is that
"interest is so remote, trifling and insignificant that it may
fairly be supposed to be incapable of affecting the judgment
of or of influencing the conduct of an individual. And where
penalties are imposed, to be recovered only in a municipal
court, the judge or jurors in which would be interested as
corporators in the recovery, the law providing for such
recovery must be regarded as precluding the objection of
interest."
But the learned judge then proceeds:
"But except in cases resting upon such reasons, we do not
see how the legislature can have any power to abolish a
maxim which is among the fundamentals of judicial
authority."
Referring then to a remark in the case of the Matter of Leefe,
2 Barb.Ch. 39, that the people of the State, when framing
their constitution, might possibly establish so great an
anomaly, if they saw fit, the learned author says:
"Even this must be deemed doubtful, since the adoption of
the fourteenth article of the amendments to the Federal
Constitution, which denies to the state the right to deprive
one of life, liberty or property without due process of law."
From this review, we conclude that a system by which an
inferior judge is paid for his service only when he convicts
the defendant has not become so embedded by custom in
the general practice either at common law or in this country
that it can be regarded as due process of law unless the
costs usually imposed are so small that they may be
properly ignored as within the maxim de minimis non curat
lex.
The Mayor received for his fees and costs in the present
case $12, and from such costs under the Prohibition Act
Page 273 U. S. 532
for seven months he made about $100 a month, in addition
to his salary. We cannot regard the prospect of receipt or
loss of such an emolument in each case as a minute,
remote, trifling or insignificant interest. It is certainly not fair
to each defendant, brought before the Mayor for the careful
and judicial consideration of his guilt or innocence, that the
prospect of such a loss by the Mayor should weigh against
his acquittal.
These are not cases in which the penalties and the costs are
negligible. The field of jurisdiction is not that of a small
community engaged in enforcing its own local regulations.
The court is a state agency imposing substantial
punishment, and the cases to be considered are gathered
from the whole county by the energy of the village marshals
and detectives regularly employed by the village for the
purpose. It is not to be treated as a mere village tribunal for
village peccadillos. There are doubtless mayors who would
not allow such a consideration as $12 costs in each case to
affect their judgment in it; but the requirement of due process
of law in judicial procedure is not satisfied by the argument
that men of the highest honor and the greatest self-sacrifice
could carry it on without danger of injustice. Every procedure
which would offer a possible temptation to the average man
as a judge to forget the burden of proof required to convict
the defendant, or which might lead him not to hold the
balance nice, clear, and true between the State and the
accused denies the latter due process of law.
But the pecuniary interest of the Mayor in the result of his
judgment is not the only reason for holding that due process
of law is denied to the defendant here. The statutes were
drawn to stimulate small municipalities in the country part of
counties in which there are large cities, to organize and
maintain courts to try persons accused of violations of the
Prohibition Act everywhere in the county. The inducement is
offered of dividing between
Page 273 U. S. 533
the State and the village the large fines provided by the law
for its violations. The trial is to be had before a mayor without
a jury, without opportunity for retrial, and with a review
confined to questions of law presented by a bill of
exceptions, with no opportunity by the reviewing court to set
aside the judgment on the weighing of evidence unless it
should appear to be so manifestly against the evidence as to
indicate mistake, bias or willful disregard of duty by the trial
court. The statute specifically authorizes the village to
employ detectives, deputy marshals, and other assistants to
detect crime of this kind all over the county, and to bring
offenders before the Mayor's court, and it offers to the village
council and its officers a means of substantially adding to the
income of the village to relieve it from further taxation. The
mayor is the chief executive of the village. He supervises all
the other executive officers. He is charged with the business
of looking after the finances of the village. It appears from
the evidence in this case, and would be plain if the evidence
did not show it, that the law is calculated to awaken the
interest of all those in the village charged with the
responsibility of raising the public money and expending it, in
the pecuniarily successful conduct of such a court. The
mayor represents the village, and cannot escape his
representative capacity. On the other hand, he is given the
judicial duty, first, of determining whether the defendant is
guilty at all, and second, having found his guilt, to measure
his punishment between $100 as a minimum and $1,000 as
a maximum for first offenses, and $300 as a minimum and
$2,000 as a maximum for second offenses. With his interest
as mayor in the financial condition of the village, and his
responsibility therefor, might not a defendant with reason say
that he feared he could not get a fair trial or a fair sentence
from one who would have so strong a motive to help his
village by conviction and a heavy fine? The old English
cases, cited above, of the
Page 273 U. S. 534
days of Coke and Holt and Mansfield, are not nearly so
strong. A situation in which an official perforce occupies two
practically and seriously inconsistent positions, one partisan
and the other judicial, necessarily involves a lack of due
process of law in the trial of defendants charged with crimes
before him. City of Boston v. Baldwin, 139 Mass. 315; Florida
ex rel. Colcord v. Young, 31 Fla. 594. It is, of course, so
common to vest the mayor of villages with inferior judicial
functions that the mere union of the executive power and the
judicial power in him cannot be said to violate due process of
law. The minor penalties usually attaching to the ordinances
of a village council, or to the misdemeanors in which the
mayor may pronounce final judgment without a jury, do not
involve any such addition to the revenue of the village as to
justify the fear that the mayor would be influenced in his
judicial judgment by that fact. The difference between such a
case and the plan and operation of the statutes before us is
so plain as not to call for further elaboration.
Counsel for the State argue that it has been decided by this
Court that the legislature of a State may provide such
system of courts as it chooses; that there is nothing in the
Fourteenth Amendment that requires a jury trial for any
offender; that it may give such territorial jurisdiction to its
courts as it sees fit, and therefore that there is nothing
sinister or constitutionally invalid in giving to a village mayor
the jurisdiction of a justice of the peace to try misdemeanors
committed anywhere in the county, even though the mayor
presides over a village of 1,100 people and exercises
jurisdiction over offenses committed in a county of 500,000.
This is true, and is established by the decisions of this Court
in Missouri v. Lewis, 101 U. S. 22, 101 U. S. 30; In re
Claasen, 140 U. S. 200. See also Carey v. State, 70 Ohio
State 121. It is also correctly pointed out that it is completely
within the power of the legislature to dispose of the fines
collected
Page 273 U. S. 535
in criminal cases as it will, and it may therefore divide the
fines as it does here, one-half to the State and one-half to
the village by whose mayor they are imposed and collected.
It is further said with truth that the legislature of a State may,
and often ought to, stimulate prosecutions for crime by
offering to those who shall initiate and carry on such
prosecutions rewards for thus acting in the interest of the
State and the people. The legislature may offer rewards or a
percentage of the recovery to informers. United States v.
Murphy & Morgan, 16 Pet. 203. It may authorize the
employment of detectives. But these principles do not at all
affect the question whether the State, by the operation of the
statutes we have considered, has not vested the judicial
power in one who, by reason of his interest both as an
individual and as chief executive of the village, is disqualified
to exercise it in the trial of the defendant.
It is finally argued that the evidence shows clearly that the
defendant was guilty, and that he was only fined $100, which
was the minimum amount, and therefore that he cannot
complain of a lack of due process, either in his conviction or
in the amount of the judgment. The plea was not guilty, and
he was convicted. No matter what the evidence was against
him, he had the right to have an impartial judge. He
seasonably raised the objection, and was entitled to halt the
trial because of the disqualification of the judge, which
existed both because of his direct pecuniary interest in the
outcome and because of his official motive to convict and to
graduate the fine to help the financial needs of the village.
There were thus presented at the outset both features of the
disqualification.
The judgment of the Supreme Court of Ohio must be
reversed, and the cause remanded for further proceedings
not inconsistent with this opinion.
Judgment reversed.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. RTJ-97-1375 October 16, 1997
ATTY. ROMULO B. MACALINTAL, complainant,
vs.
JUDGE ANGELITO C. TEH, Regional Trial Court, Branch 87,
Rosario, Batangas, respondent.
PER CURIAM:
In a letter, dated 01 April 1996, Atty. Romulo B. Macalintal
related to the Court the actuations of Judge Angelito C. Teh,
Executive Judge and the Presiding Judge of the Regional
Trial Court, Branch 87, Rosario, Batangas, relative to
Election Case No. R-95-001.
It would appear that Judge Teh issued a resolution adverse
to the client of Atty. Macalintal in the aforenumbered election
case. Atty. Macalintal questioned the resolution, via a petition
for certiorari, before the Commission on Elections
("COMELEC"). While the case was pending at the
COMELEC, Judge Teh actively participated in the
proceedings by filing his comment on the petition and, still
later, an urgent manifestation. Complainant lawyer forthwith
filed a motion to prevent respondent Judge from further
acting on Election Case No. R-95-001. Instead of acting on
the motion for inhibition, Judge Teh hired his own lawyer and
filed his answer before his own court, with the prayer:
1. That Judgment be rendered dismissing the Motion
for Inhibition for lack of sufficient factual and legal basis;
2. Ordering the movant to pay the undersigned
respondent in the amount of P100,000.00 as attorney's fees
and expenses for litigation;
3. Cost of this suit.
Respondent respectfully prays for such other reliefs and
remedies as may be deemed just and equitable in the
premises. 1
In its resolution of 19 August 1996, the Court required
respondent to comment on the letter-complaint.
In his comment, dated 20 September 1996, respondent
Judge admitted that he had filed his own pleadings with the
COMELEC out of respect and in deference to the order of 16
November 1995 of the COMELEC En Banc requiring
respondents to comment on the petition. The urgent
manifestation he filed was meant to rectify the assertion of
complainant that he had erroneously cited Section 8, Rule
35, of the Omnibus Election Code. Attached to his comment
before this Court was his resolution, dated 31 July 1996,
where respondent Judge, ruling on the motion for inhibition,
held:
WHEREFORE, in view of all the foregoing considerations,
this Court hereby rendered this resolution on the pending
incidents to wit:
1. The protestee's unverified Motion to Dismiss and
Motion to Strike Out Opposition are hereby DENIED for lack
of sufficient legal and factual basis;
2. The Motion for Inhibition is likewise DENIED for
lack of sufficient legal and factual basis;
3. And for compelling the respondent Judge to
engage the services of counsel who prepared the Answer to
the Motion for Inhibition, the Protestee's counsel, Atty.
Romulo B. Macalintal is hereby ordered to pay P100,000.00
as Attorney's Fees and litigation expenses incident to his
Motion for Inhibition.
SO ORDERED. 2
In its resolution, dated 12 March 1997, the Court resolved to:
(a) DIRECT Judge Angelito Teh to ACT on the motion
for inhibition in accordance with the procedure prescribed in
Section 2, Rule 137 of the Rules of Court;
(b) TREAT the letter dated April 1, 1996 of
complainant as an administrative complaint against Judge
Angelito Teh and docket accordingly;
(c) CONSIDER the comment dated September 20,
1996 of Judge Teh filed in compliance with the resolution of
August 19, 1996 as comment on the complaint; and
(d) require the parties to MANIFEST within fifteen (15)
days from notice hereof whether they are willing to submit
this case for resolution on the basis of the pleadings already
filed herein. 3
In his manifestation, dated 29 April 1997, respondent Judge
expressed his willingness to submit the case for resolution
on the basis of his comment which he repleaded and
reproduced. He also made his observation that the complaint
of Atty. Macalintal had not been under oath.
In his compliance, dated 24 April 1997, complainant
informed the Court that his letter of 01 April 1996 was not
intended as an administrative complaint but that he was
leaving the matter of treating it as such to the discretion of
this Court in the exercise of its administrative control and
supervision over the members of the judiciary. He likewise
manifested his willingness to submit the case for resolution
on the basis of the pleadings already filed. He, in passing,
informed the Court that the resolution of 31 July 1996 issued
by respondent judge was found by the COMELEC to be
"irrational."
While Rule 140 of the Rules of Court requires that
complaints against Judges should be sworn to, the Court
deems it proper to dispense with the requirement since the
letter of Atty. Macalintal, upon the recommendation of the
Office of the Court Administrator, has heretofore been
treated as an administrative complaint and considering,
further, that respondent Judge, in his comment, practically
admitted all pertinent allegations of complainant. Under the
doctrine of res ipsa loquitur, the Court may impose its
authority upon erring judges whose actuations, on their face,
would show gross incompetence, ignorance of the law or
misconduct. 4
Section 5, Rule 65, of the Rules of Court 5 provides:
Sec. 5. Defendants and costs in certain cases. When
the petition filed related to the acts or omissions of a court or
judge, the petitioner shall join, as parties defendant with
such court or judge, the person or persons interested in
sustaining the proceedings in the court; and it shall be the
duty of such person or persons to appear and defend, both
in his or their own behalf and in behalf of the court or judge
affected by the proceedings, and costs awarded in such
proceedings in favor of the petitioner shall be against the
person or persons in interest only, and not against the court
or judge.
Evidently, the active participation of respondent judge, being
merely a nominal or formal party 6 in the certiorari
proceedings, is not called for. In Turqueza vs. Hernando, 7
the Court has explained:
. . . (U)nder Section 5 of Rule 65 of the Rules of Court, a
judge whose order is challenged in an appellate court does
not have to file any answer or take active part in the
proceeding unless expressly directed by order of this Court.
It is the duty of the private respondent to appear and defend,
both in his/her behalf and in behalf of the Court or judge
whose order or decision is at issue. The judge should
maintain a detached attitude from the case and should not
waste his time by taking an active part in a proceeding which is assured that occupants of the bench cannot justly be
relates to official actuations in a case but should apply accused of deficiency in their grasp of legal principles. 15
himself to his principal task of hearing and adjudicating the
cases in his court. He is merely a nominal party to the case WHEREFORE, finding respondent Judge Angelito C. Teh
and has no personal interest nor personality therein. 8 guilty of gross ignorance of the law, the Court hereby
dismisses him from the service with forfeiture of all benefits
Respondent's folly did not stop there. When complainant and with prejudice to re-employment in any other branch,
filed a motion for respondent's inhibition in Election Case No. instrumentality or agency of the government, including
R-95-001, the latter, instead of acting thereon in accordance government-owned and controlled corporations.
with Section 2, Rule 137, of the Rules of Court, hired his own
lawyer, filed his answer to the motion and forthwith denied Judge C. Teh is hereby enjoined upon his receipt hereof to
the same, ordering, at the same time, Atty. Macalintal to pay cease and desist from performing any and all acts pertaining
P100,000.00 by way of attorney's fees and litigation to his office.
expenses "for compelling the respondent Judge to engage
the services of counsel who prepared the Answer to the This decision is immediately executory.
Motion for Inhibition." Respondent Judge, in fine, acted both
as a party litigant and as a judge before his own court. Let a copy of this decision be attached to the records of
Judge Angelito C. Teh with this Court.
In the Court's resolution of 12 March 1997, respondent was
directed to act on the motion for inhibition in accordance with SO ORDERED.
the procedure prescribed in Section 2, Rule 137, 9 of the Republic of the Philippines
Rules of Court. Respondent Judge either misunderstood or SUPREME COURT
chose to misunderstand the directive for, in his order, dated Manila
17 April 1997, he granted the motion for inhibition "in
compliance with the resolution" of the Court. Clearly, the EN BANC
Court, in its resolution of 12 March 1997, merely required
respondent Judge to act on the motion for inhibition in A.M. No. RTJ-99-1460 March 31, 2006
accordance with the Rules, i.e., "to either proceed with the
trial, or withdraw therefrom, in accordance with his OFFICE OF THE COURT ADMINISTRATOR, Petitioner,
determination of the question of his disqualification." vs.
Certainly, he was not directed by the Court either to grant or JUDGE FLORENTINO V. FLORO, JR., Respondent.
deny the motion.
x--------------x
Respondent judge should be reminded that decisions of
courts need not only be just but must be perceived to be just A.M. No. 99-7-273-RTC March 31, 2006
and completely free from suspicion or doubt both in its
fairness and integrity. 10 Judges, being the visible Re: RESOLUTION DATED 11 MAY 1999 OF JUDGE
representation of the law and, most importantly, of justice, 11 FLORENTINO V. FLORO, JR.
should be the embodiment of independence, competence,
and integrity. 12 Once again, the Court would also wish to x--------------x
say that a member of the bench must continuously keep
himself abreast of legal and jurisprudential developments A.M. No. RTJ-06-1988 March 31, 2006
and show acquaintance with statutes, procedural rules and (Formerly A.M. OCA IPI No. 99-812-RTJ)
authoritative doctrines. 13 Not for a moment, indeed, does
the learning process in law cease. LUZ ARRIEGO, Petitioner,
vs.
In the case before us, respondent's gross deviation from the JUDGE FLORENTINO V. FLORO, JR., Respondent.
acceptable norm for judges is clearly manifest. In Castaos
vs. Escao, J., 14 the Court has had occasion to state: DECISION
When the inefficiency springs from a failure to consider so CHICO-NAZARIO, J.:
basic and elemental a rule, a law or a principle in the
discharge of his duties, a judge is either too incompetent and "Equity does not demand that its suitors shall have led
undeserving of the position and title he holds or he is too blameless lives." Justice Brandeis, Loughran v. Loughran 1
vicious that the oversight or omission was deliberately done
in bad faith and in grave abuse of judicial authority. In both THE CASES
instances, the judge's dismissal is in order. After all, faith in
the administration of justice exists only if every party-litigant
The First Case: A.M. No. RTJ-99-1460 (Office of the Court
Administrator v. Judge Florentino V. Floro, Jr.)
It was in 1995 that Atty. Florentino V. Floro, Jr. first applied
for judgeship. A pre-requisite psychological evaluation on
him then by the Supreme Court Clinic Services (SC Clinic)
revealed "(e)vidence of ego disintegration" and "developing
psychotic process." Judge Floro later voluntarily withdrew his
application. In June 1998, when he applied anew, the
required psychological evaluation exposed problems with
self-esteem, mood swings, confusion, social/interpersonal
deficits, paranoid ideations, suspiciousness, and perceptual
distortions. Both 1995 and 1998 reports concluded that Atty.
Floro was unfit to be a judge.
Because of his impressive academic background, however,
the Judicial and Bar Council (JBC) allowed Atty. Floro to
seek a second opinion from private practitioners. The
second opinion appeared favorable thus paving the way to
Atty. Floros appointment as Regional Trial Court (RTC)
Judge of Branch 73, Malabon City, on 4 November 1998.
Upon Judge Floros personal request, an audit on his sala
was conducted by the Office of the Court Administrator
(OCA) from 2 to 3 March 1999.2
After conducting the audit, the audit team, led by Atty. Mary
Jane Dacarra-Buenaventura, reported its findings to
erstwhile Court Administrator, Alfredo L. Benipayo, who
submitted his own report/memorandum 3 to then Chief
Justice Hilario G. Davide, Jr. dated 13 July 1999
recommending, among other things, that his report be
considered as an administrative complaint against Judge
Floro and that Judge Floro be subjected to an appropriate
psychological or mental examination. Court Administrator
Benipayo recommended as well that Judge Floro be placed
under preventive suspension for the duration of the
investigation against him.
In a Resolution4 dated 20 July 1999, the Court en banc
adopted the recommendations of the OCA, docketing the
complaint as A.M. No. RTJ-99-1460, in view of the
commission of the following acts or omissions as reported by
the audit team:
(a) The act of circulating calling cards containing self-
laudatory statements regarding qualifications and for
announcing in open court during court session his
qualification in violation of Canon 2, Rule 2.02, Canons of
Judicial Conduct;
(b) For allowing the use of his chambers as sleeping
quarters;
(c) For rendering resolutions without written orders in
violation of Rule 36, Section 1, 1997 Rules of Procedures;
(d) For his alleged partiality in criminal cases where he
declares that he is pro-accused which is contrary to Canon
2, Rule 2.01, Canons of Judicial Conduct;
(e) For appearing and signing pleadings in Civil Case No.
46-M-98 pending before Regional Trial Court, Branch 83,
Malolos, Bulacan in violation of Canon 5, Rule 5.07, Canons
of Judicial Conduct which prohibits a judge from engaging in
the private practice of law;
(f) For appearing in personal cases without prior authority
from the Supreme Court and without filing the corresponding
applications for leaves of absence on the scheduled dates of
hearing;
(g) For proceeding with the hearing on the Motion for
Release on Recognizance filed by the accused without the
presence of the trial prosecutor and propounding questions
in the form of examination of the custodian of the accused;
(h) For using/taking advantage of his moral ascendancy to
settle and eventually dismiss Criminal Case No. 20385-MN
(for frustrated homicide) in the guise of settling the civil
aspect of the case, by persuading the private complainant
and the accused to sign the settlement even without the
presence of the trial prosecutor;
(i) For motu proprio and over the strong objection of the trial
prosecutor, ordering the mental and physical examination of
the accused based on the ground that the accused is
"mahina ang pick-up";
(j) For issuing an Order on 8 March 1999 which varies from
that which he issued in open court in Criminal Case No.
20385-MN, for frustrated homicide;
(k) For violation of Canon 1, Rule 1.01 Code of Judicial
Conduct when he openly criticized the Rules of Court and
the Philippine justice system;
(l) For the use of highly improper and intemperate language
during court proceedings;
(m) For violation of Circular No. 135 dated 1 July 1987.
Per the same resolution of the Court, the matter was referred
to Retired Court of Appeals Justice Pedro Ramirez
(consultant, OCA) for investigation, report and
recommendation within 60 days from receipt. Judge Floro
was directed to comment within ten days from receipt of the
resolution and to subject himself to an appropriate
psychological or mental examination to be conducted "by the
proper office of the Supreme Court or any duly authorized
medical and/or mental institution." In the same breath, the
Court resolved to place Judge Floro under preventive
suspension "for the duration of the investigation of the
administrative charges against him." He was barely eight
months into his position.
On 20 August 1999, Judge Floro submitted a Verified
Comment where he set forth both affirmative and negative
defenses6 while he filed his "Answer/Compliance" on 26
August 1999.
On 3 March 2000, Judge Floro moved for the
provisional/final dismissal of his case for failure to
prosecute.7 However, on 21 March 2000, he presented
himself as his first witness in the hearing conducted by
Justice Ramirez.8 Subsequently, on 7 July 2000, Judge
Floro filed a "Petition for Inhibition/Disqualification" against
Justice Ramirez as investigator9 which was denied by
Justice Ramirez in an Order dated 11 July 2000. 10 Judge
Floros motion for reconsideration 11 suffered the same fate.
12 On 27 July 2000, Judge Floro submitted the question of
Justice Ramirezs inhibition/disqualification to this Court. 13
On 8 August 2000, the Court ruled against the inhibition of
Justice Ramirez. 13
On 11 September 2000, the OCA, after having been ordered
by the Court to comment on Judge Floros motion to dismiss,
15 recommended that the same should be denied.
Judge Floro presented his last witness on 6 March 2001. 16
The day after, Justice Ramirez came out with a "Partial
Report" recommending the dismissal of Judge Floro from
office "by reason of insanity which renders him incapable
and unfit to perform the duties and functions of Judge of the
Regional Trial Court, National Capital Judicial Region,
Malabon, Metro Manila, Branch 73." 17
In the meantime, throughout the investigation of the 13
charges against him and even after Justice Ramirez came
out with his report and recommendation on 7 March 2001,
Judge Floro had been indiscriminately filing cases against
those he perceived to have connived to boot him out of
office.
A list of the cases Judge Floro filed in the wake of his 20 July
1999 preventive suspension follows:
1. OCA IPI No. 00-07-OCA against Atty. Mary Jane
Dacarra-Buenaventura, Team Leader, Judicial Audit Team,
Office of the Court Administrator 18
2. OCA IPI No. 00-933-RTJ against Judge Benjamin
Aquino, Jr., Regional Trial Court, Branch 72, Malabon City
19
3. AC No. 5286 against Court Administrator Alfredo L.
Benipayo and Judge Benjamin Aquino, Jr.20
4. AC No. CBD-00-740 against Thelma C. Bahia, Court
Management Office, Atty. Mary Jane Dacarra-Buenaventura,
Atty. II, Court Management Office, both of the Office of the
Court Administrator and Atty. Esmeralda G. Dizon, Branch
Clerk of Court, Branch 73, Malabon21

5. AC No. 6282 (CPL No. C-02-0278) against former Court
Administrator Justice Alfredo L. Benipayo and (Ret.) Justice
Pedro A. Ramirez, Consultant, Office of the Court
Administrator22
6. A.M. No. 03-8-03-0 against (Ret.) Justice Pedro A.
Ramirez23
7. A.C. No. 6050 against (Ret.) Justice Pedro A.
Ramirez24
On 1 February 2006, Judge Floro moved that the cases he
filed, now totaling seven, be dismissed.25 On 14 February
2006, the Court granted the motion to dismiss.26
The Second Case: A.M. No. RTJ-06-1988(Luz Arriego v.
Judge Florentino V. Floro, Jr.)
This charge is likewise the subject matter of charge "h" in
A.M. No. RTJ-99-1460: "(f)or using/taking advantage of his
moral ascendancy to settle and eventually dismiss Criminal
Case No. 20385-MN (for frustrated homicide) in the guise of
settling the civil aspect of the case, by persuading the private
complainant and the accused to sign the settlement even
without the presence of the trial prosecutor." The
complainant Luz Arriego is the mother of the private
complainant in Criminal Case No. 20385-MN.
On 28 June 2001, Arriego testified, while court stenographer
Jocelyn Japitenga testified on 16 July 2001. On 31 July
2001, Arriego filed her Formal Offer of Evidence which was
opposed by Judge Floro on 21 August 2001. On 5
September 2001, Judge Floro testified on his behalf while
Atty. Galang testified against him on 4 October 2001. On 16
October 2001, Judge Floro filed a Memorandum in this
case.27
The Third Case: A.M. No. 99-7-273-RTC (Re: Resolution
Dated 11 May 1999 of Judge Florentino V. Floro, Jr.)
As can be gathered from the title, this case concerns a
resolution issued by Judge Floro on 11 May 1999 in Special
Proceeding Case No. 315-MN "In Re: Petition To Be
Admitted A Citizen Of The Philippines, Mary Ng Nei,
Petitioner." The resolution disposed of the motions for
voluntary inhibition of Judge Floro and the reconsideration of
the order denying the petition for naturalization filed by
petitioner in that case, Mary Ng Nei.
This resolution found its way to the OCA through a letter
written by Atty. David S. Narvasa, the petitioners counsel.28
The OCA, through Court Administrator Benipayo, made the
following evaluation:
In the subject resolution, Judge Floro, Jr. denied the motion
for inhibition and declared it as null and void. However, he
ordered the raffling of the case anew (not re-raffle due to
inhibition) so that the petitioner, Mary Ng Nei, will have a
chance to have the case be assigned to other judges
through an impartial raffle.
When Judge Floro, Jr. denied the motion for inhibition, he
should have continued hearing and taking cognizance of the
case. It is improper for him to order the raffle of the case
"anew" as this violates Administrative Circular No. 1
(Implementation of Sec. 12, Art. XVIII of the 1987
Constitution) dated January 28, 1988 which provides to wit:
"8. Raffle of Cases:
xxxx
8.3 Special raffles should not be permitted except on verified
application of the interested party who seeks issuance of a
provisional remedy and only upon a finding by the Executive
Judge that unless the special raffle is conducted, irreparable
damage shall be suffered by the applicant. The special raffle
shall be conducted by at least two judges in a multiple-sala
station.
x x x x"
Based on the foregoing, a judge may not motu proprio order
the special raffle of a case since such is only allowed upon a
verified application of the interested party seeking a
provisional remedy and only upon the Executive Judges
finding that if a special raffle is not conducted, the applicant
will suffer irreparable damage. Therefore, Judge Floro, Jr.s
order is contrary to the above-mentioned Administrative
Circular.
Moreover, it is highly inappropriate for Judge Floro, Jr. to
even mention in his resolution that Justice Regino C.
Hermosisima, Jr. is his benefactor in his nomination for
judgeship. It is not unusual to hear a judge who speaks
highly of a "padrino" (who helped him get his position). Such
remark even if made as an expression of deep gratitude
makes the judge guilty of creating a dubious impression
about his integrity and independence. Such flaunting and
expression of feelings must be suppressed by the judges
concerned. A judge shall not allow family, social, or other
relationships to influence judicial conduct or judgment
(Canon 2, Rule 2.03, Code of Judicial Conduct).
The merits of the denial of the motion for inhibition and the
ruling on the motion for reconsideration are judicial matters
which this Office has no authority to review. The remedy is
judicial, not administrative.29
The OCA thus recommended that Judge Floro comment on
(a) his act of ordering the raffle of the case in violation of
Administrative Circular No. 1; and (b) his remark on page 5
of the subject resolution that "Justice Hermosisima, Jr. x x x
helped undersigned so much, in the JBC, regarding his
nomination x x x."
In a Resolution dated 17 August 1999, the Court en banc
adopted the recommendations of the OCA.30 Judge Floro,
through his counsel, filed his Comment on 22 October
199931 which was noted by this Court on 7 December 1999.
On 11 January 2000, Judge Floro filed a Formal Offer of
Evidence which this Court, in a resolution dated 25 January
2000, referred to Justice Ramirez for inclusion in his report
and recommendation.
For the record, the OCA is yet to come up with its report and
recommendation in this case as well as in the second case
(i.e., A.M. No. RTJ-06-1988). Thus, in a resolution dated 14
February 2006, the Court directed Judge Floro as well as the
other parties in these two cases to inform the Court whether
or not they are willing to submit A.M. RTJ-06-1988 and A.M.
No. 99-7-273-RTC for decision on the basis of the pleadings
filed and the evidence so far submitted by them or to have
the decision in A.M. No. RTJ-99-1460 decided ahead of the
two. On 20 February 2006, the OCA, thru Court
Administrator Presbitero J. Velasco, Jr., manifested its
willingness to submit A.M. No. 99-7-273-RTC for resolution
based on the pleadings and the evidence submitted therein.
Complainant Luz Arriego in A.M. No. RTJ-06-1988 likewise
informed this Court, in a Letter dated 28 February 2006, her
willingness to submit her case for decision based on the
pleadings already submitted and on the evidence previously
offered and marked. On the other hand, on 3 March 2006,
Judge Floro manifested his preference to have A.M. No.
RTJ-99-1460 decided ahead of A.M. RTJ-06-1988 and A.M.
No. 99-7-273-RTC.
In the interest of orderly administration of justice, considering
that these are consolidated cases, we resolve to render as
well a consolidated decision.
But first, the ground rules: Much has been said across all
fronts regarding Judge Floros alleged mental illness and its
effects on his duties as Judge of a Regional Trial Court. For
our part, figuring out whether Judge Floro is indeed
psychologically impaired and/or disabled as concluded by
the investigator appointed by this Court is frankly beyond our
sphere of competence, involving as it does a purely medical
issue; hence, we will have to depend on the findings of the
mental health professionals who interviewed/analyzed Judge
Floro. Our job is simply to wade through the evidence, filter
out the irrelevant and the irreverent in order to determine
once and for all if Judge Floro is indeed guilty of the charges
against him. If the evidence makes out a case against Judge
Floro, the next issue is to determine the appropriate penalty
to be imposed.
Finally, we will have to determine whether Judge Floro acted
with an evil mind or because of a psychological or mental
incapacity. Upon the resolution of this question hinges the
applicability of equity.
As an aside, it bears pointing out that some of the charges
("c" and "g", "h" and "j", "e" and "f") will be jointly discussed
as they had likewise been jointly discussed by the OCA.
These charges involve common facts and to treat them
separately will be superfluous.
DISCUSSION
As alleged and as proven, the 13 specified charges do not
warrant the supreme penalty of dismissal against Judge
Floro
(a) Re: Charge of circulating calling cards containing self-
laudatory statements regarding qualifications AND for
announcing in open court during court session his
qualifications in violation of Canon 2, Rule 2.02, Canons of
Judicial Conduct
As narrated by the audit team, Judge Floro was circulating
calling cards bearing his name as the Presiding Judge of
RTC, Branch 73, Malabon City, and indicating therein that he
is a "bar exams topnotcher (87.55%)" and with "full second
honors" from the Ateneo de Manila University, A.B. and
LL.B.32 The audit team likewise reported that: "(b)efore the
start of court session, Judge Floro is introduced as a private
law practitioner, a graduate of Ateneo de Manila University
with second honors, and a bar topnotcher during the 1983
Bar Examinations with an average score of 87.55%.
Afterwards, a reading of the Holy Bible, particularly the Book
of Revelation according to Saint John, was made. The
people in the courtroom were given the opportunity to ask
Judge Floro questions on the matter read. No questions
were asked; hence the session commenced."33
Judge Floro argues that, per commentary of Justice Ruperto
G. Martin, 34 "the use of professional cards containing the
name of the lawyer, his title, his office and residence is not
improper" and that the word "title" should be broad enough
to include a Judges legal standing in the bar, his honors duly
earned or even his Law School. Moreover, other lawyers do
include in their calling cards their former/present
titles/positions like President of the Jaycees, Rotary Club,
etc., so where then does one draw the line? Finally, Judge
Floro argues that his cards were not being circulated but
were given merely as tokens to close friends or by
reciprocity to other callers considering that common sense
dictates that he is not allowed by law to seek other
professional employment.
As to the charge that he had been announcing in open court
his qualifications, Judge Floro counters that it was his branch
clerk of court, Atty. Esmeralda Galang-Dizon, who suggested
that during his initial court session, she would briefly
announce his appointment with an introduction of his school,
honors, bar rating and law practice. Naively, Judge Floro
agreed as the introduction was done only during the first
week of his assumption into office.
Canon 2, Rule 2.02 of the Code of Judicial Conduct says in
no uncertain terms that "a judge should not seek publicity for
personal vainglory." A parallel proscription, this time for
lawyers in general, is found in Rule 3.01 of the Code of
Professional Responsibility: "a lawyer shall not use or permit
the use of any false, fraudulent, misleading, deceptive,
undignified, self-laudatory or unfair statement or claim
regarding his qualifications or legal services." This means
that lawyers and judges alike, being limited by the exacting
standards of their profession, cannot debase the same by
acting as if ordinary merchants hawking their wares. As
succinctly put by a leading authority in legal and judicial
ethics, "(i)f lawyers are prohibited from x x x using or
permitting the use of any undignified or self-laudatory
statement regarding their qualifications or legal services
(Rule 3.01, Code of Professional Responsibility), with more
reasons should judges be prohibited from seeking publicity
for vanity or self-glorification. Judges are not actors or
actresses or politicians, who thrive by publicity." 35
The question, therefore, is: By including self-laudatory
details in his professional card, did Judge Floro violate
Canon 2, Rule 2.02 of the Code of Judicial Conduct?
In Ulep v. Legal Clinic, Inc., 36 we explained that the use of
an ordinary and simple professional card by lawyers is
permitted and that the card "may contain only a statement of
his name, the name of the law firm which he is connected
with, address, telephone number and special branch of law
practiced." In herein case, Judge Floros calling cards cannot
be considered as simple and ordinary. By including therein
the honors he received from his law school with a claim of
being a bar topnotcher, Judge Floro breached the norms of
simplicity and modesty required of judges.
Judge Floro insists, however, that he never circulated his
cards as these were just given by him as tokens and/or only
to a few who requested the same. 37 The investigation by
Justice Ramirez into the matter reveals otherwise. An eye-
witness from the OCA categorically stated that Judge Floro
circulated these cards. 38 Worse, Judge Floros very own
witness, a researcher from an adjoining branch, testified that
Judge Floro gave her one of these cards. 39
As this charge involves a violation of the Code of Judicial
Conduct, it should be measured against Rule 140 of the
Rules of Court as amended by A.M. No. 01-8-10-SC being
more favorable to respondent Judge Floro. Rule 140, before
its amendment, automatically classified violations of the
Code of Judicial Conduct as serious charges. As amended,
a violation of the Code of Judicial Conduct may amount to
gross misconduct, which is a serious charge, or it may
amount to simple misconduct, which is a less serious charge
or it may simply be a case of vulgar and/or unbecoming
conduct which is a light charge.
"Misconduct" is defined as wrong or improper conduct while
"gross" connotes something "out of all measure; beyond
allowance; not to be excused; flagrant; shameful." 40 For
serious misconduct to exist, the judicial act complained of
should be corrupt or inspired by an intention to violate the
law or a persistent disregard of well-known legal rules. 41
With the foregoing as yardstick, we find the act of Judge
Floro in circulating calling cards containing self-laudatory
statements constitutive of simple misconduct in violation of
Canon 2, Rule 2.02 of the Code of Judicial Conduct as it
appears that Judge Floro was not motivated by any corrupt
motive but, from what we can see from the evidence, a
persistent and unquenchable thirst for recognition.
Concededly, the need for recognition is an all too human
flaw and judges do not cease to be human upon donning the
judicial robe. Considering, however, the proscription against
judges seeking publicity for personal vainglory, they are held
to a higher standard as they must act within the confines of
the code they swore to observe.
As to the charge that Judge Floro, through his branch clerk
of court, had been announcing in open court his
qualifications, we find that this is likewise violative of Canon
2, Rule 2.02 of the Code of Judicial Conduct as it smacks of
unnecessary publicity. Judges should not use the courtroom
as platform for announcing their qualifications especially to
an audience of lawyers and litigants who very well might
interpret such publicity as a sign of insecurity. Verily, the
public looks upon judges as the bastion of justice
confident, competent and true. And to discover that this is
not so, as the judge appears so unsure of his capabilities
that he has to court the litigants and their lawyers approval,
definitely erodes public confidence in the judiciary.
As it is not disputed, however, that these announcements
went on for only a week, Judge Floro is guilty of simple
misconduct only.
(b)Re: Charge of allowing the use of his chambers as
sleeping quarters
The audit team observed that "inside Judge Floros
chamber[s], there is a folding bed with cushion located at the
right corner of the room. A man, who was later identified as
Judge Floros driver, was sleeping. However, upon seeing
the audit team, the driver immediately went out of the room."
42
Judge Floro contends that this charge is without legal or
factual basis. The man the audit team saw "sleeping" on his
folding bed, J. Torralba, was Judge Floros aide or "alalay"
whom he allows to rest from time to time (in between periods
and especially during court sessions) for humanitarian
reasons. J. Torralba was not sleeping during that time that
the audit team was in Branch 73 as he immediately left when
he saw the members thereof.
This charge must fail as there is nothing inherently improper
or deplorable in Judge Floro having allowed another person
to use his folding bed for short periods of time during office
hours and while there is no one else in the room. The
situation would have been different if there had been any
allegation of misuse or abuse of government funds and/or
facilities such as in the case of Presado v. Genova 43
wherein Judge Genova was found guilty of serious
misconduct and conduct prejudicial to the best interest of the
service when he and his family used his chambers as
residential quarters, with the provincial government paying
for the electrical bills.
Be that as it may, it does not augur well for a new judge to
allow such familiarity from his aide as this becomes fodder
for gossip as what had apparently happened in this case.
Judge Floro should have been aware of and attuned to the
sensibilities of his staff who were understandably
uncomfortable with the uncommon arrangement of a judge
allowing his aide easy access to his folding bed.
(c) Re: Charge of rendering resolutions without written
orders in violation of Rule 36, Section 1, 1997 Rules of
Procedure
(g) Re: Charge of proceeding with the hearing on the Motion
for Release on Recognizance filed by the accused without
the presence of the trial prosecutor and propounding
questions in the form of examination of the custodian of the
accused
The memorandum report reads:
c. It was reported by the staff of Branch 73 that regardless of
the absence of the trial prosecutor, Judge Floro, Jr. still
proceeded with the hearing of the following matters:
(c-1) "Motion for Release on Recognizance" filed by the
accused, in Criminal Cases Nos. 20384, 20371, 20246 and
20442 entitled "People vs. Luisito Beltran", "People vs.
Emma Alvarez, et al.", "People vs. Rowena Camino", and
"People vs. John Richie Villaluz", respectively. In the hearing
of these motions, Judge Floro, Jr. propounded questions (in
a form of direct examination) to the custodian of the accused
without the accused being sworn by the administering officer.
(Note: initially, Judge Floro, Jr. ordered the Branch Clerk of
Court Dizon to place the accused under oath prior to the
start of his questions. However, COC Dizon refused). The
hearing on the aforesaid motions is an offshoot of a previous
hearing wherein the accused had pleaded guilty to a lesser
offense. After the reading of the sentence, Judge Floro, Jr.
would automatically inform the accused that they are
qualified to apply for probation. In fact, Judge Floro, Jr.
would even instruct his staff to draft the application in behalf
of the accused so that a motion for release on recognizance
will immediately be heard and be consequently granted. As
appearing in the minutes of the hearing (attached herewith
as Annexes "3" to "6"), the custodians of the accused are
either a barangay kagawad, barangay tanod or a member of
the lupong tagapamayapa. Likewise, no written order
granting the motion for release on recognizance is being
issued by Judge Floro, Jr. since according to him neither
rules nor circular mandates the issuance of a written order.
Instead, after granting the motion, Judge Floro, Jr. just
requires the parties to sign the minutes of the session.
Photocopies of the minutes dated March 4, 1999 in Criminal
Cases Nos. 20384-MN; 20373-MN; and 20371-MN are
hereto attached as Annexes "3" to "5".
On March 11, 1999, in Criminal Cases Nos. 20426-MN and
20442-MN, Judge Floro, Jr. granted a similar motion without
issuing a written order. Copies of the minutes are hereto
attached as annexes "6" to "7." 44
In his Verified Comment, Judge Floro argues that he never
violated any rule of procedure with respect to the cases
mentioned by the Audit Team, asserting that
Contrary to the stance of the TEAM, Sec. 1 of Rule 36,
Rules of Court refers only to final and not interlocutory
orders. Only final orders and judgments are promulgated,
rendered and entered.
xxxx
Applying the foregoing well-settled doctrines of law to the
case at bar, herein respondent faithfully complied with the
requirements of Sec. 7 of P.D. 968 as amended, regarding
the applications for release on recognizance, thus:
a. The application for release on recognizance, although
captioned as MOTION FOR RELEASE ON
RECOGNIZANCE, is primarily governed by Sec. 7 of P.D.
968, a Special Law on Probation.
b. Any Application for Release on Recognizance, is given
due course/taken cognizance of by respondent, if on its face,
the same bears the rubber stamp mark/receipt by the Office
of the City/Public Prosecutor.
c. The consistent practice both in RTC, METRO MANILA (all
courts), especially in RTC, MALABON, and in Malolos,
Bulacan (where respondent practiced from 1985-1998
almost 14 years), [and especially the practice of former
Judge A. V. Cabigao, Br. 73, RTC, Malabon, Metro Manila],
is to interview the custodian, in the chambers, regarding his
being a responsible member of the community where the
accused reside/resides; the questions propounded are in the
form of direct and even cross examination questions.
d. The accused is not required to be placed on the witness
stand, since there is no such requirement. All that is
required, is to inform the accused regarding some matters of
probation (optional) such as whether he was sentenced
previously by a Court, whether or not he has had previous
cases, etc.
e. Even if RTC Judges in Malabon do not conduct Court
hearings on application for release on recognizance,
respondent, for caution in most of the applications, included
the interview/hearing on the applications for release on
recognizance, during criminal trial dates, where a fiscal/trial
prosecutor is available; at other times, the hearing is held in
the chambers.45
The explanation given by Judge Floro betrays his liability for
ignorance of the rules on probation under Presidential
Decree No. 968 (Probation Law), as amended. Contrary to
his remonstrations, the release of an accused on
recognizance entails more than a cursory interview of the
custodian and the applicant. Under the Probation Law,46
and as we explained in Poso v. Judge Mijares,47 it is
incumbent upon the Judge hearing the application to
ascertain first that the applicant is not a "disqualified
offender" as "(p)utting the discharge of the accused on hold
would have allowed [the judge] more time to pass upon the
request for provisional liberty."
Moreover, from Judge Floros explanations, it would seem
that he completely did away with the requirement for an
investigation report by the probation officer. Under the
Probation Law, the accuseds temporary liberty is warranted
only during the period for awaiting the submission of the
investigation report on the application for probation and the
resolution thereon.48 As we explained in Poso v. Judge
Mijares49 :
It must be stressed that the statutory sequence of actions,
i.e., order to conduct case study prior to action on application
for release on recognizance, was prescribed precisely to
underscore the interim character of the provisional liberty
envisioned under the Probation Law. Stated differently, the
temporary liberty of an applicant for probation is effective no
longer than the period for awaiting the submission of the
investigation report and the resolution of the petition, which
the law mandates as no more than sixty (60) days to finish
the case study and report and a maximum of fifteen (15)
days from receipt of the report for the trial judge to resolve
the application for probation. By allowing the temporary
liberty of the accused even before the order to submit the
case study and report, respondent Judge unceremoniously
extended the pro tem discharge of the accused to the
detriment of the prosecution and the private complainants.
(Emphasis supplied)
As to the argument of Judge Floro that his Orders for the
release of an accused on recognizance need not be in
writing as these are duly reflected in the transcript of
stenographic notes, we refer to Echaus v. Court of Appeals
50 wherein we held that "no judgment, or order whether final
or interlocutory, has juridical existence until and unless it is
set down in writing, signed and promulgated, i.e., delivered
by the Judge to the Clerk of Court for filing, release to the
parties and implementation." Obviously, then, Judge Floro
was remiss in his duties as judge when he did not reduce
into writing his orders for the release on recognizance of the
accused in Criminal Cases No. 20384, 20371, 202426 and
20442 entitled, "People v. Luisito Beltran," "People v. Emma
Alvarez, et al.," "People v. Rowena Camino," and "People v.
John Richie Villaluz." 51 From his explanation that such
written orders are not necessary, we can surmise that Judge
Floros failure was not due to inadvertence or negligence on
his part but to ignorance of a procedural rule.
In fine, we perceive three fundamental errors in Judge
Floros handling of probation cases. First, he ordered the
release on recognizance of the accused without the
presence of the prosecutor thus depriving the latter of any
opportunity to oppose said release. Second, Judge Floro
ordered the release without first requiring the probation
officer to render a case study and investigation report on the
accused. Finally, the order granting the release of the
accused on recognizance was not reduced into writing.
It would seem from the foregoing that the release of the
accused on recognizance, as well as his eventual probation,
was already a done deal even before the hearing on his
application as Judge Floro took up the cudgels for the
accused by instructing his staff to draft the application for
probation. This, Judge Floro did not deny. Thus, we agree in
the observation of the audit team that Judge Floro, as a
matter of policy, had been approving applications for release
on recognizance hastily and without observing the
requirements of the law for said purpose. Verily, we having
nothing against courts leaning backward in favor of the
accused; in fact, this is a salutary endeavor, but only when
the situation so warrants. In herein case, however, we
cannot countenance what Judge Floro did as "the unsolicited
fervor to release the accused significantly deprived the
prosecution and the private complainants of their right to due
process." 52
Judge Floros insistence that orders made in open court
need not be reduced in writing constitutes gross ignorance of
the law. Likewise, his failure to follow the basic rules on
probation, constitutes gross ignorance of the law. 53
Verily, one of the fundamental obligations of a judge is to
understand the law fully and uphold it conscientiously. 54
When the law is sufficiently basic, a judge owes it to his
office to know and simply apply it for anything less is
constitutive of gross ignorance of the law. 55 True, not every
judicial error bespeaks ignorance of the law and that, if
committed in good faith, does not warrant administrative
sanctions. 56 To hold otherwise "would be nothing short of
harassing judges to take the fantastic and impossible oath of
rendering infallible judgments." 57 This rule, however, admits
of an exception as "good faith in situations of fallible
discretion inheres only within the parameters of tolerable
judgment and does not apply where the issues are so simple
and the applicable legal principle evident and as to be
beyond permissible margins of error." 58 Thus, even if a
judge acted in good faith but his ignorance is so gross, he
should be held administratively liable. 59
(d) RE: Charge of partiality in criminal cases where he
declared that he is pro-accused which is contrary to Canon
2, Rule 2.01, Canons of Judicial Conduct
The audit team reported that Judge Floro relayed to the
members thereof that in criminal cases, he is always "pro-
accused" particularly concerning detention prisoners and
bonded accused who have to continually pay for the
premiums on their bonds during the pendency of their cases.
Judge Floro denies the foregoing charge. He claims that
what he did impart upon Atty. Buenaventura was the need
for the OCA to remedy his predicament of having 40
detention prisoners and other bonded accused whose cases
could not be tried due to the lack of a permanent prosecutor
assigned to his sala. He narrated as well to Atty.
Buenaventura the sufferings of detention prisoners
languishing in the Malabon/Navotas jail whose cases had
not been tried during the vacancy of his sala from February
1997 to 5 November 1998. At any rate, Judge Floro submits
that there is no single evidence or proof submitted by any
litigant or private complainant that he sided with the
accused.
Atty. Dizon, Judge Floros Clerk of Court, on the other hand,
categorically stated under oath that Judge Floro, during a
staff meeting, admitted to her and the staff of Branch 73 and
in the presence of his Public Attorneys Office (PAO) lawyer
that he is pro-accused for the reason that he commiserated
with them especially those under detention as he, himself,
had been accused by his brother and sister-in-law of so
many unfounded offenses. 60
Between the two versions, the testimony of Atty. Dizon is
more credible especially since it is corroborated by
independent evidence, 61 e.g., Judge Floros unwarranted
eagerness in approving application for release on
recognizance as previously discussed.
Canon 2.01 of the Code of Judicial Conduct states: "A judge
should so behave at all times as to promote public
confidence in the integrity and impartiality of the judiciary."
This means that a judge whose duty is to apply the law and
dispense justice "should not only be impartial, independent
and honest but should be believed and perceived to be
impartial, independent and honest" as well. 62 Like Caesars
wife, a judge must not only be pure but above suspicion. 63
Judge Floro, by broadcasting to his staff and the PAO lawyer
that he is pro-accused, opened himself up to suspicion
regarding his impartiality. Prudence and judicial restraint
dictate that a judge should reserve personal views and
predilections to himself so as not to stir up suspicions of bias
and unfairness. Irresponsible speech or improper conduct of
a judge erodes public confidence in the judiciary. 64 "His
language, both written and spoken, must be guarded and
measured, lest the best of intentions be misconstrued." 65
On a more fundamental level, what is required of judges is
objectivity if an independent judiciary is to be realized. And
by professing his bias for the accused, Judge Floro is guilty
of unbecoming conduct as his capacity for objectivity is put
in serious doubt, necessarily eroding the publics trust in his
ability to render justice. As we held in Castillo v. Juan 66 :
In every litigation, x x x, the manner and attitude of a trial
judge are crucial to everyone concerned, the offended party,
no less than the accused. It is not for him to indulge or even
to give the appearance of catering to the at-times human
failing of yielding to first impressions. He is to refrain from
reaching hasty conclusions or prejudging matters. It would
be deplorable if he lays himself open to the suspicion of
reacting to feelings rather than to facts, of being imprisoned
in the net of his own sympathies and predilections. It must
be obvious to the parties as well as the public that he follows
the traditional mode of adjudication requiring that he hear
both sides with patience and understanding to keep the risk
of reaching an unjust decision at a minimum. It is not
necessary that he should possess marked proficiency in law,
but it is essential that he is to hold the balance true. What is
equally important is that he should avoid any conduct that
casts doubt on his impartiality. What has been said is not
merely a matter of judicial ethics. It is impressed with
constitutional significance.
(h) Re: Charge of using/taking advantage of his moral
ascendancy to settle and eventually dismiss Criminal Case
No. 20385-MN (for frustrated homicide) in the guise of
settling the civil aspect of the case, by persuading the private
complainant and the accused to sign the settlement even
without the presence of the trial prosecutor.
(j) Re: Charge of issuing an Order on 8 March 1999 which
varies from that which he issued in open court in Criminal
Case No. 20385-MN, for frustrated homicide.
The memorandum report states:
During the arraignment and pre-trial of Criminal Case No.
20385-MN entitled: "People vs. Nenita Salvador", Judge
Floro, Jr., in the absence of the public prosecutor and
considering that the private complainant was not being
represented by a private prosecutor, used his moral
ascendancy and influence to convince the private
complainant to settle and eventually cause the dismissal of
the case in the guise of settling its civil aspect by making the
private complainants and the accused sign the settlement.
(Copy of the signed stenographic notes is hereto attached as
Annex "8").
xxxx
In an Order dated March 8, 1999 in Criminal Case No.
20385-MN, for frustrated homicide, Judge Floro, Jr. put on
record the "manifestations" of the private complainant and
the accused relative to their willingness to settle the civil
aspect of the case. In the same order, Judge Floro, Jr.
reserved his ruling on the said settlement until after the
public prosecutor has given his comment. However, per
report of the court employees in Branch 73, the aforesaid
order was actually a revised one or a deviation from the
original order given in open court. Actually, the said criminal
case was already settled even without the presence of the
public prosecutor. The settlement was in the nature of
absolving not only the civil liability of the accused but the
criminal liability as well. It was further reported that the
private complainants signed the compromise agreement due
to the insistence or persuasion of Judge Floro, Jr. The audit
team was furnished a copy of the stenographic notes
(unsigned draft order) and the revised order (signed). Copies
of the stenographic notes and the revised order are hereto
attached as Annexes "8", "13", and "14". (Note: the
stenographic notes were signed by the parties to the case).
In the meantime, the mother of the private complainant in
Criminal Case No. 20385-MN, Luz Arriego, filed an
administrative case against Judge Floro docketed as A.M.
OCA-I.P.I. No. 99-812-RTJ. In her Affidavit Complaint 67
dated 9 August 1999, she alleged that on 8 March 1999,
Judge Floro forced them to settle her daughters case
against the accused therein despite the absence of the trial
prosecutor. When the parties could not agree on the amount
to be paid by the accused for the medical expenses incurred
by complaining witness, they requested respondent that they
be given time to study the matter and consult a lawyer to
which Judge Floro replied that the case be settled
immediately, uttering, "ngayon na! ngayon na!" Moreover,
Judge Floro allegedly made them believe that the counter-
charges filed by the accused against the complaining
witness would likewise be dismissed, so they agreed to
settle the case. However, the written Order issued by
respondent Judge did not reflect the agreement entered into
by the parties in open court.
Judge Floro takes exception to the foregoing OCA report and
the complaint filed by Mrs. Arriego, maintaining that the
hearing on said case was not only in accordance with the
Rules of Court but was also beneficial to the litigants
concerned as they openly manifested their willingness to
patch up their differences in the spirit of reconciliation. Then,
considering that the parties suggested that they would file
the necessary pleadings in due course, Judge Floro waited
for such pleadings before the TSN-dictated Order could be
reduced to writing. Meanwhile, in the course of a
conversation between Judge Floro and Court Administrator
Benipayo, the latter opined that under Section 27 of Rule
130 of the Rules of Court, an offer of compromise in criminal
cases is tantamount to an admission of guilt except in some
cases. With this in mind, the 8 March 1999 Order of the
hearing on even date was superseded by the revised written
Order likewise dated 8 March 1999.
Judge Floro asserts that contrary to Atty. Buenaventuras
stance that he has no power to revise an Order, courts have
plenary power to recall and amend or revise any orally
dictated order in substance and in form even motu proprio.
The rule on the matter finds expression in Echaus v. Court of
Appeals 68 wherein we declared:
x x x [N]o judgment, or order whether final or interlocutory,
has juridical existence until and unless it is set down in
writing, signed and promulgated, i.e., delivered by the Judge
to the Clerk of Court for filing, release to the parties and
implementation, and that indeed, even after promulgation, it
does not bind the parties until and unless notice thereof is
duly served on them by any of the modes prescribed by law.
This is so even if the order or judgment has in fact been
orally pronounced in the presence of the parties, or a draft
thereof drawn up and signed and/or copy thereof somehow
read or acquired by any party. In truth, even after
promulgation (i.e., filing with the clerk of court), and even
after service on the parties of notice of an order or judgment,
the Court rendering it indisputably has plenary power to
recall and amend or revise it in substance or form on motion
of any party or even motu proprio, provided that in the case
of a final order or judgment, the same has not attained
finality. (Emphasis supplied)
In herein case, what was involved was an interlocutory order
made in open court ostensibly a judicial approval of a
compromise agreement which was amended or revised by
removing the stamp of judicial approval, the written order
merely stating that Judge Floro was reserving its ruling
regarding the manifestations of the parties to enter into a
compromise agreement after the public prosecutor shall
have submitted its comments thereto. 69
Considering then that it was well within the discretion of
Judge Floro to revise his oral order per the Echaus ruling
and factoring in his explanation for resorting to such an
amendment, we find no basis for the charge of dishonesty
(under paragraph "j" of the complaint).
Anent the charge that Judge Floro used his moral
ascendancy to settle and eventually dismiss Criminal Case
No. 20385-MN (for frustrated homicide) in the guise of
settling the civil aspect of the case, by persuading the private
complainant and the accused to sign the settlement even
without the presence of the trial prosecutor, the same must
likewise fail for lack of basis. The controversial settlement
never came to pass. It was not judicially approved as
reflected in the revised Order of 8 March 1999, thus, Mrs.
Arriego actually had no cause for complaint. She cannot, on
one hand, complain that the written order did not reflect the
agreement reached during the hearing and, on the other
hand, claim that this agreement was reached under duress
at the instance of Judge Floro.
(i) For motu proprio and over the strong objection of the trial
prosecutor, ordering the mental and physical examination of
the accused based on the ground that the accused is
"mahina ang pick-up"
The audit team reported that in an Order dated 8 February
1999 in Criminal Case No. 20347-MN, Judge Floro "motu
proprio ordered the physical and mental examination of the
accused by any physician, over the strong objection of the
trial prosecutor, on the ground that the accused is "mahina
ang pick-up." 70
In refutation, Judge Floro argues --
In the case at bar, respondent/Court carefully observed the
demeanor of the accused NESTOR ESCARLAN and noted
the manifestations of his counsel de oficio, Atty. E. Gallevo,
PAO lawyer, and the comment/objections of the trial
prosecutor, Prosecutor J. Diaz, thus:
a. Atty. Gallevo manifested to the Court that the accused
opted to enter a plea of not guilty;
b. But upon query of the Court, the accused approached the
bench and he appeared trembling and stammering;
c. Atty. Gallevo, upon questions by respondent, readily
admitted that accused is "nauutal", has difficulty of
reasoning, of speaking, and very nervous;
d. Atty. Gallevo also manifested that the accused often
changed his mind regarding the plea, from not guilty to guilty
and to not guilty, and so forth;
e. Considering the grave situation, Atty. Gallevo, upon
citation by the Court/respondent of the pertinent provisions
of the Rules, namely Rule 28 (Mental Examination of
Persons), Sec. 12 of Rule 116, and Sec. 5(g) of Rule 135,
Rules of Court (plenary powers to issue orders to conform to
justice), manifested orally that the accused is "mahina ang
pick-up";
f. Hence, respondent exercised his sound discretion in
issuing the ORDER OF MENTAL EXAMINATION.
The MENTAL examination ORDER finds legal support, since
it is well-settled that "the court may order a physical or
MENTAL examination of a party where his physical or mental
condition is material to the issues involved." (27 C.J.S. p.
119, cf. MARTIN, p. 107, id.). 71
PAO lawyer Erwin Joy B. Gallevo took the witness stand for
Judge Floro. He testified that he moved for the suspension
of the arraignment of the accused Nestor Escarlan
Escancilla in order to assess his mental fitness for trial. 72
As reflected in the Order for suspension, however, and as
admitted by Judge Floro himself in his Comment, Atty.
Gallevo merely manifested that accused is "mahina ang
pick-up."
Be that as it may, we cannot fault Judge Floro for
suspending the arraignment motu proprio and "over the
strong objection of the trial prosecutor." It must be
remembered that the scheduled arraignment took place in
February 1999 when the applicable rule was still Section
12(a) of Rule 116 of the 1985 Rules of Criminal Procedure,
which reads:
SEC. 12. Suspension of arraignment. The arraignment
shall be suspended, if at the time thereof:
(a) The accused appears to be suffering from an unsound
mental condition which effectively renders him unable to fully
understand the charge against him and to plead intelligently
thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such
purpose.
The above-cited rule does not require that the suspension be
made pursuant to a motion filed by the accused unlike
Section 11(a), Rule 116 of the present 2000 Rules of
Criminal Procedure which decrees that the suspension be
made "upon motion by the proper party." 73 Thus, it was well
within the discretion of Judge Floro to order the suspension
of the arraignment motu proprio based on his own
assessment of the situation. In fact, jurisprudence imposes
upon the Judge the duty to suspend the proceedings if it is
found that the accused, even with the aid of counsel, cannot
make a proper defense. 74 As we underscored in People v.
Alcalde 75 :
Settled is the rule that when a judge is informed or discovers
that an accused is apparently in a present condition of
insanity or imbecility, it is within his discretion to investigate
the matter. If it be found that by reason of such affliction the
accused could not, with the aid of counsel, make a proper
defense, it is the duty of the court to suspend the
proceedings and commit the accused to a proper place of
detention until his faculties are recovered. x x x.
xxxx
The constitutional right to be informed of the nature and
cause of the accusation against him under the Bill of Rights
carries with it the correlative obligation to effectively convey
to the accused the information to enable him to effectively
prepare for his defense. At the bottom is the issue of fair trial.
While not every aberration of the mind or exhibition of mental
deficiency on the part of the accused is sufficient to justify
suspension of the proceedings, the trial court must be fully
satisfied that the accused would have a fair trial with the
assistance the law secures or gives. x x x.
Whether or not Judge Floro was indeed correct in his
assessment of the accuseds mental fitness for trial is
already beside the point. If ever he erred, he erred in the
side of caution which, under the circumstances of the case,
is not an actionable wrong.
(e)Re: Charge of appearing and signing pleadings in Civil
Case No. 46-M-98 pending before Regional Trial Court,
Branch 83, Malolos, Bulacan in violation of Canon 5, Rule
5.07, Code of Judicial Conduct which prohibits a judge from
engaging in the private practice of law
(f)Re: Charge of appearing in personal cases without prior
authority from the Supreme Court and without filing the
corresponding applications for leaves of absence on the
scheduled dates of hearing
In support of the above charges, the memorandum report
states:
i.Judge Floro, Jr. informed the audit team that he has
personal cases pending before the lower courts in Bulacan.
He admitted that Atty. Bordador, the counsel of record in
some of these cases, is just signing the pleadings for him
while he (Judge Floro, Jr.) acts as collaborating counsel.
When attending the hearing of the cases, Judge Floro, Jr.
admitted that he does not file an application for leave of
absence.
Based on the reports gathered by the audit team, Judge
Floro, Jr. has a pending civil case in the Regional Trial Court
of Malolos, Bulacan and a criminal case in Municipal Trial
Court, Meycauayan, Bulacan. It is reported that in these
cases, he is appearing and filing pleadings in his capacity as
party and counsel for himself and even indicating in the
pleadings that he is the Presiding Judge of Branch 73, RTC,
Malabon.
Upon verification by the audit team, it was found out that
Judge Floro, Jr. indeed has a pending case before the
Regional Trial Court, Branch 83, Malolos, Bulacan docketed
as Civil Case No. 46-M-98, entitled: "In Re: In the Matter of
the Petition for Habeas Corpus of Robert V. Floro, Atty.
Florentino V. Floro, Jr., Petitioner - versus Jesie V. Floro
and Benjamin V. Floro". In this case Judge Floro, Jr. filed an
"Ex-Parte Motion for Issuance of Entry of Judgment with
Manifestation and/or Judicial Admission" wherein he signed
as the petitioner and at the same time indicated that he is
the presiding judge of RTC, Branch 73, Malabon, Metro
Manila. Court stenographer Marissa Garcia, RTC, Branch
83, Malolos, Bulacan confirmed this information. Judge
Floro, Jr. even attached a copy of his oath taking and his
picture together with President Joseph Estrada to the
aforesaid pleading. Photocopy of the said Motion is hereto
attached as Annex "9".
Judge Floro, Jr. has a pending request with the Court
Management Office, Office of the Court Administrator, to
appear as counsel or collaborating counsel in several civil
cases (except the above-mentioned case) pending before
lower courts. 76
Well ensconced is the rule that judges are prohibited from
engaging in the private practice of law. Section 35, Rule 138
of the Rules of Court unequivocally states 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 member of the bar or give professional advice to
client." Canon 5, Rule 5.07 of the Code of Judicial Conduct,
on the other hand, provides that: "A judge shall not engage
in the private practice of law."
Judge Floro vehemently denies the foregoing charge
claiming that he hired lawyers to attend to his personal
cases. 77
A scrutiny of the voluminous records in this case does not
reveal any concrete proof of Judge Floro having appeared
as counsel in his personal cases after he had already been
appointed Judge except that he prepared a pleading ("Ex
Parte Motion For Issuance of Entry of Judgment With
Manifestation and/or Judicial Admission") jointly with his
counsel of record in connection with a habeas corpus case
he filed against his brothers for the custody of their "mild,
mentally-retarded" brother. He explained, however, that he
prepared the said pleading in the heat of anger as he could
not accept the judgment of dismissal in that case.78 He
likewise explained that the pleading was signed by him alone
due to inadvertence and that he had rectified the same by
filing an Amended Manifestation with Affidavit of Merit. 79
Finally, during the hearing of this case, Judge Floro argued
that he filed the subject pleading as petitioner and not as
counsel. 80
The proscription against the private practice of law by judges
is based on sound public policy, thus:
[T]he rights, duties, privileges and functions of the office of
an attorney-at-law are inherently incompatible with the high
official functions, duties, powers, discretion and privileges of
a judge. It also aims to ensure that judges give their full time
and attention to their judicial duties, prevent them from
extending special favors to their own private interests and
assure the public of their impartiality in the performance of
their functions. These objectives are dictated by a sense of
moral decency and desire to promote the public interest. 81
Based on the above rationale, it becomes quite evident that
what is envisioned by "private practice" is more than an
isolated court appearance, for it consists in frequent or
customary action, a succession of acts of the same nature
habitually or customarily holding ones self to the public as a
lawyer. 82 In herein case, save for the "Motion for Entry of
Judgment," it does not appear from the records that Judge
Floro filed other pleadings or appeared in any other court
proceedings in connection with his personal cases. It is safe
to conclude, therefore, that Judge Floros act of filing the
motion for entry of judgment is but an isolated case and
does not in any wise constitute private practice of law.
Moreover, we cannot ignore the fact that Judge Floro is
obviously not lawyering for any person in this case as he
himself is the petitioner.
Be that as it may, though Judge Floro might not be guilty of
unauthorized practice of law as defined, he is guilty of
unbecoming conduct for signing a pleading wherein he
indicated that he is the presiding judge of RTC, Branch 73,
Malabon City and for appending to the pleading a copy of his
oath with a picture of his oath-taking. The only logical
explanation we can reach for such acts is that Judge Floro
was obviously trying to influence or put pressure on a fellow
judge by emphasizing that he himself is a judge and is thus
in the right. 83 Verily, Canon 2, Rule 2.04 of the Code of
Judicial Conduct mandates that a "judge shall refrain from
influencing in any manner the outcome of litigation or dispute
pending before another court or administrative agency." By
doing what he did, Judge Floro, to say the least, put a fellow
judge in a very awkward position.
As to charge (f), the OCA has failed to substantiate its claim
that Judge Floro has been attending the hearing of his
personal cases without filing for leave of absence. As Judge
Floro vehemently protests the charge as untrue, it was
incumbent upon the OCA to prove its case. Time and again
we have held that although administrative proceedings are
not strictly bound by formal rules on evidence, the liberality
of procedure in administrative actions is still subject to
limitations imposed by the fundamental requirement of due
process. 84
(k) Re: Charge of openly criticizing the Rules of Court and
the Philippine justice system
(l) Re: Charge of use of highly improper and intemperate
language during court proceedings
The memorandum report reads:
In the course of the judicial audit, the audit team was able to
observe the way Judge Floro, Jr. conducts court
proceedings. With the assistance of the court staff, the team
was able to obtain a tape-recorded proceeding conducted by
Judge Floro, Jr. Attached is the transcript of the proceedings
(Annex "15"). The tape record of the court proceedings is
also submitted along with this report as Exhibit "A".
xxxx
The case for hearing that day was Civil Case No. 1256 MM.
A certain Atty. Abelarde was appearing for the plaintiff while
Atty. Emmanuel Basa was appearing for the defendant.
During the hearing, it seems that the counsels for both
parties were guiding Judge Floro, Jr. on how to proceed with
the trial.
There was one instance when Judge Floro, Jr. criticized the
Rules of Court, to wit:
"Judge Floro, Jr.: Kasi nga ang may plano nito ay ang Rules
of Court, hindi nila maayos ang Rules of Court natin, hindi
realistic kinopya lang sa law of California on Civil Procedure;
pagdating dito eh dahil sa kanila maraming
nagkakaproblema, masyadong maraming eh ako wala
akong pinagkopyahan yan but ginawa ko lang yon
Sabi ko si Judge nagko-complain kasi, sabi ko nga pagka
ang lawyer hindi alam yan talo na sa akin except na
hindi papayag kasi marami diyang "
In another proceeding conducted on a different day, Judge
Floro, Jr., instead of holding trial, discussed, in open court,
the case involving his brother. He even condemned the
Philippine justice system and manifested his disgust on the
unfairness of the system. Thus, he said:
"Sabi ko paano ko matatagpuan ang katarungan dito sa
korteng eto bulok ang hustisya. Ang kapatid ko
napakayaman, ako walang pera."
He continued:
"Yung kapatid ko. Hindi ko makuha kundi makita ko lang.
Bawal kasi; yung kapatid ko retarded, bawal. In memory of
my brother, Robert Floro. So, ngayon nag-file ako. Sabi ni
Judge Agloro senermonan pa ako, ganun ganun Sabi
ko paano ko makikita ang katarungan. Tapos ngayon ang
nangyari di Judge na ako, hindi ko pa nakita ang kapatid ko.
Di ngayon, ang ginawa ko na-dismiss na yung case, hindi ko
inano kasi wala akong nakikitang katarungan dahil ang
kapatid ko ay napakaraming pera. Alam ko naman kung ang
isang court eh parehas o may kiling eh. Yung abogado niya
malakas na malakas doon. Sana hindi naka-record eto
(laughs) baka ako ma-contempt dito." 85
Judge Floro denies the foregoing accusations, emphatically
arguing that these are all hearsay fabrications supplied by
his Clerk of Court, Atty. Dizon, and by disgruntled RTC
personnel due to ill or ulterior motives (i.e., to allegedly
cover-up their consistent tardiness, habitual absenteeism
and gross neglect of duties which were all unearthed by
Judge Floro).
As to the tape recording of an alleged court hearing wherein
he criticized the Philippine judicial system, Judge Floro
contends that this recording was done clandestinely by his
staff in violation of the Anti-Wire Tapping Law (Republic Act
No. 4200) and, to suit their plans, they twisted the facts by
cutting portions thereof. They also made it appear that the
conversation took place in a court proceeding when, in fact,
this was inside his chambers.
During the investigation, it was established that the two
tapes in question were submitted to the OCA sans the
"yellow notes" and the official transcribed copy thereof. 86
This means that the transcribed copy that was submitted by
the audit team as Annex "15" is but an unofficial copy and
does not, by itself, prove that what was being recorded was
a court proceeding. This being the case, the two tapes,
without concrete proof that they were taken officially during a
court proceeding, cannot be used against Judge Floro as the
unauthorized recording of a private conversation is
inadmissible under Rep. Act No. 4200. 87
Without the tape and transcribed copies of the contents
thereof, we are thus left with only Judge Floros word against
that of Atty. Dizon, his Clerk of Court who testified under oath
as to Judge Floros alleged propensity to criticize the
judiciary and to use intemperate language. Resolving these
particular charges would therefore depend upon which party
is more credible.
Atty. Dizon stated on the witness stand that:
Q: Is Judge Floro guilty of Violation of Canon 1 Rule 1.01
Code of Judicial Conduct when he openly criticized the
Rules of Court and the Philippine Justice System?
A: Yes. Judge Floro has mentioned to each and everyone of
us in branch 73 the alleged "kabulukan ng hustisya". Time
and again he said the Rules of Court is of no use. He said
that since theory and the practice of law are very different,
the Rules of Court does not always apply to different cases.
Not only the justice system did he criticize but likewise
Judges and Justices. He told us . . . and I quote "Dyan sa
Malolos sangkatutak ang corrupt na Judges . . . Sa Court of
Appeals P25,000.00 ang pinakamababang lagayan diyan."
To our mind, how can a Judge like him openly criticize the
very institution he is now serving? Where is his respect to
the court, to the bar and to the bench? How can he uphold
courts as temples of justice if he himself did not believe in
the justice system?
xxxx
Q What can you say about charge letter "L" which reads for
the use of highly improper and intemperate language during
court proceedings?
A Judge Floro, if in the presence of all his staff, during the
presence of me, the Court Interpreter, the Legal Researcher,
maybe a Clerk, he always discuss matters regarding
practitioners in our court. There is one time one Atty.
Feliciano a lady lawyer, he said, "Luka-luka, talaga yang
babaing yan" and then he would call even not during court
session, but during office hours our Court Interpreter
"malandi, luka-luka, may fruit of the sun". So, it did not
surprise us one time when during a pre-trial conference in a
Civil Case, for Civil Case No. 25-86-MN "Lopez v. Reyes and
Mercado", he uttered offensive language against his fellow
judge. Take the transcription of this court proceeding is
already adapted by the Court Administrator. It was the
content of the tape he sent the Court Administrator. Actually,
for consultation and advise after hearing what Judge Floro
discussed in open Court, before all of us, the court staff
present in the hearing and before the lawyer and the
defendants in the case, we were in quandary whether or not
to attach in the record the stenographic notes or even the
actual transcription of the proceedings because it contained
offensive languages against the justice system, against a
certain judge, against a certain Clerk of Court named Jude
Assanda, against people he is disgusted with. In fact,
instead of discussing the merit of the case or the possibility
of the amicable settlement between the parties, he
integrated this kind of discussion. So, as a Clerk of Court, I
may not use my discretion whether or not to advise the
stenographer to indeed present the same or attach the same
in the record because it contained offensive languages
highly improper and intemperate languages like for example,
"putang ina", words like "ako ang anghel ng kamatayan,
etcetera, etcetera". 88
The denials of Judge Floro are insufficient to discredit the
straightforward and candid declarations of Atty. Dizon
especially in the light of confirming proofs from Judge Floro
himself.
The Court finds the version of Atty. Dizon more credible
because subject utterances are consistent with Judge
Floros claims of intellectual superiority for having graduated
with several honors from the Ateneo School of Law and
having placed 13th in the bar examinations. Moreover, his
utterances against the judicial system on account of his
perception of injustice in the disposition of his brothers case
are not far removed from his reactions to what he perceived
were injustices committed against him by the OCA and by
the persons who were either in charge of the cases against
him or had some sort of participation therein. Consequently,
although there is no direct proof that Judge Floro said what
he is claimed to have said, nonetheless, evidence that he
sees himself as intellectually superior as well as evidence of
his habit of crying foul when things do not go his way, show
that it is more likely that he actually criticized the Rules of
Court and the judicial system and is thus guilty of
unbecoming conduct. Verily, in administrative cases, the
quantum of proof necessary for a finding of guilt is
substantial evidence or such relevant evidence as
reasonable mind might accept as adequate to support a
conclusion. 89 In this case, there is ample and competent
proof of violation on Judge Floros part.
(m) Re: Charge of violating Circular No. 13-87 dated 1 July
1987
The memorandum report stated that Judge Floro
[D]eviat[ed] from the regular course of trial when he
discusses matters involving his personal life and beliefs.
Canon 3, Rule 3.03 provides that "[a] judge shall maintain
order and proper decorum in the court." A disorderly judge
generates disorderly work. An indecorous judge invites
indecorous reactions. Hence, the need to maintain order and
proper decorum in court. When the judge respects himself,
others will respect him too. When he is orderly, others will
follow suit. Proceedings in court must be conducted formally
and solemnly. The atmosphere must be characterized with
honor and dignity befitting the seriousness and importance
of a judicial trial called to ascertain the truth. Anything which
tends to detract from this atmosphere must be avoided. And
the judge is supposed to be in control and is therefore
responsible for any detraction therefrom.
Circular No. 13 (Guidelines in the Administration of Justice)
dated July 1, 1987 provides that trial of cases should be
conducted efficiently and expeditiously. Judges should plan
the course and direction of trials so that waste of time is
avoided.
Moreover, a judge should avoid being queer in his behavior,
appearance and movements. He must always keep in mind
that he is the visible representative of the law. Judge Floro,
Jr.s claims that he is endowed with psychic powers, that he
can inflict pain and sickness to people, that he is the angel of
death and that he has unseen "little friends" are
manifestations of his psychological instability and therefore
casts doubt on his capacity to carry out the functions and
responsibilities of a judge. Hence, it is best to subject Judge
Floro, Jr. once again to psychiatric or mental examination to
ascertain his fitness to remain in the judiciary. 90
Circular No. 13-87, by itself, does not define nor punish an
offense but, as its title would suggest, it merely sets the
guidelines in the administration of justice following the
ratification of the 1987 Constitution.
The arguments forwarded by the OCA, however, best
exemplify the fact that the 13 charges are inextricably linked
to the charge of mental/psychological illness which allegedly
renders Judge Floro unfit to continue discharging the
functions of his office. This being the case, we will consider
the allegation that Judge Floro proclaims himself to be
endowed with psychic powers, that he can inflict pain and
sickness to people, that he is the angel of death and that he
has unseen "little friends" in determining the transcendental
issue of his mental/psychological fitness to remain in office.
But before we even go into that, we must determine the
appropriate penalty to be imposed for the seven of the 13
charges discussed above. To recapitulate, we have found
Judge Floro guilty, in one way or another, of seven of the 13
charges against him. Thus:
1) Charge "a" - simple misconduct
2) Charges "c" and "g" gross ignorance of the law
3) Charge "d" unbecoming conduct
4) Charge "e" unbecoming conduct
5) Charges "k" and "l" unbecoming conduct
Gross ignorance of the law or procedure is a serious charge.
Under Rule 140 as amended, a judge guilty of a serious
charge may be dismissed from the service, suspended from
office without salary and other benefits for more than three
but not exceeding six months or fined in the amount of P
20,000.00 but not exceeding P 40,000.00 depending on the
circumstances of the case. In herein case, considering that
Judge Floro had barely warmed his seat when he was
slammed with these charges, his relative inexperience is to
be taken in his favor. And, considering further that there is no
allegation or proof that he acted in bad faith or with corrupt
motives, we hold that a fine is the appropriate penalty. The
fine is to be imposed in the maximum, i.e. P 40,000.00, as
we will treat the findings of simple misconduct and
unbecoming conduct as aggravating circumstances. 91
Judge Floro must be relieved of his position as Judge of
RTC Malabon Branch due to a medically disabling condition
of the mind that renders him unfit to discharge the functions
of his office
As we have explained, the common thread which binds the
13 seemingly unrelated accusations in A.M. No. RTJ-99-
1460 is the charge of mental illness against Judge Floro
embodied in the requirement for him to undergo an
appropriate mental or psychological examination and which
necessitated his suspension pending investigation. This
charge of mental illness, if true, renders him unfit to perform
the functions of his office notwithstanding the fact that, in
disposing of the 13 charges, there had been no finding of
dismissal from the service against Judge Floro.
The Supreme Court Clinic first had occasion to interview
Judge Floro when the latter applied for judgeship (which
application he later voluntarily withdrew) way back in
September 1995. The psychological report, as prepared by
Cecilia C. Villegas, M.D. (Director III, Chief SC Clinic
Services) and Melinda C. Grio (Psychologist), stated in part:
PSYCHIATRIC EVALUATION:
There are evidences of developing psychotic process at
present.
REMARKS:
Atty. Floro was observed to be restless and very anxious
during the interview. He was argumentative and over
solicitous of questions asked, giving the impressions of
marked suspiciousness. He centered on his academic
excellence, an Ateneo de Manila graduate of the College of
Law, rated top 13th place in the bar examination. He
emphasized his obsessive and compulsive method of
studying, at least 15 hours per day regardless of whether it
was school days or vacation time. Vying for honors all the
time and graduated Law as second honor, he calls this self-
discipline and self-organization. He expressed dissatisfaction
of his achievements, tend to be a perfectionist and cannot
accept failures. To emphasize his ultra bright mind and
analytical system, he related that, for the past 3 to 5 years,
he has been experiencing "Psychic vision" every morning
and that the biggest secret of the universe are the "unseen
things." He can predict future events because of "power in
psychic phenomenon" as when his bar results was to be
released, he saw lights in the sky "no. 13-1," and he got the
13th place. He has been practicing "parapsychology"
seeing plenty of "dwendes" around him.
He can talk on and on of bizarre ideas, that tends (sic) to be
irrelevant.
Intellectually, he has high assets, however, evidence of ego
disintegration are prominent findings, both in the interview
(conscious) and psychological test results. (unconscious
level). 92
Approximately three years later, in June 1998, Judge Floro
again presented himself to the Supreme Court Clinic when
he applied anew for judgeship, this time of RTC Malabon.
Psychologist Beatriz O. Cruz and Celeste P. Vista, M.D.
(Psychiatrist and Medical Officer IV) did the interview and
evaluation. Dr. Vista observed:
Atty. Floro has an impressive academic achievements (sic),
and he takes pride in this. During the interview, he was quite
reluctant to reveal information about his family background
and would rather talk about his work and academic
achievements. However, he failed to integrate his knowledge
into a cohesive unit which he can utilize to cope with the
various tasks that he undertakes. This renders him confused
and ambivalent with a tendency to vacillate with decision-
making. He also has a low self-esteem and prone to mood
swings with the slightest provocation.
From the interview, there seems to have been no drastic
change in his personality and level of functioning as a lawyer
in private practice. However, he showed a pervasive pattern
of social and interpersonal deficits. He has poor social skills
and showed discomfort with close social contacts. Paranoid
ideations, suspiciousness of others motives as well as
perceptual distortions were evident during the interview.
Atty. Floros current intelligence function is along the mild
mental retardation (68) which is below the expected
cognitive efficiency of a judge. Despite his impressive
academic background and achievements, he has lapses in
judgment and may have problems with decision-making. His
character traits such as suspiciousness and seclusiveness
and preoccupation with paranormal and psychic phenomena
though not detrimental to his role as a lawyer, may cloud his
judgment, and hamper his primary role as a judge in
dispensing justice. Furthermore, he is at present not
intellectually and emotionally equipped to hurdle the
responsibilities of a judge and he may decompensate when
exposed to anxiety-provoking and stress-laden situation. 93
It would seem that the JBC disregarded the above-quoted
report as it allowed Judge Floro to seek a second opinion
from private practitioners. A.M. No. RTJ-99-1460, however,
resurrected the issue of his mental and psychological
capacity to preside over a regional trial court. Thus, the
Resolution of 20 July 1999 specifically ordered Judge Floro
to submit to "appropriate psychological or mental
examination."
On 1 February 2000, per recommendation of Justice
Ramirez, 94 the Court clarified that the "appropriate
psychological or mental examination" being adverted to in
the Resolution of 20 July 1999 is to be conducted by the SC
Clinic. The Court thereby directed Judge Floro to "submit
himself to the SC Clinic for psychological or mental
examination, within ten (10) days from notice." 95 Judge
Floro sought reconsideration which was denied by the Court
on 22 February 2000. 96
The order to submit to the appropriate psychological
examination by the SC Clinic was reiterated by the Court on
17 October 2000 with the admonition that Judge Floros
failure to do so would result in appropriate disciplinary
sanctions. 97
On 24 October 2000, Judge Floro sought reconsideration of
the 17 October 2000 Resolution with a conjunctive special
motion for him to undergo psychiatric examination by any
duly authorized medical and/or mental institution. 98 This
was denied by the Court on 14 November 2000. 99
On 10 November 2000, Judge Floro moved, among other
things, for the inhibition or disqualification of Supreme Court
Clinic doctors 100 and psychologist 101 with a manifestation
that he filed cases against them for revocation of licenses
before the Professional Regulatory Commission (PRC), the
Philippine Medical Association (PMA) and the PAP 102 for
alleged gross incompetence and dishonorable conduct
under Sec. 24 of Rep. Act No. 2382/1959 Medical Act/Code
of Medical Ethics. 103
On 16 November 2000, Justice Ramirez, with the approval
of Court Administrator Benipayo, moved that Judge Floro be
sanctioned for obvious contempt in refusing to comply with
the 1 February 2000 and 17 October 2000 resolutions.
According to Justice Ramirez, Judge Floros filing of
administrative cases with the PRC against Dr. Mendoza, et
al., is an indication of the latters intention to disregard and
disobey the legal orders of the Court. 104 The Court en banc
agreed in the report of Justice Ramirez, thus Judge Floro
was ordered to submit to psychological and mental
examination within 10 days from receipt, otherwise, he "shall
be ordered arrested and detained at the jail of the National
Bureau of Investigation (NBI) x x x." 105
Judge Floro finally complied with the directive on 13 and 15
December 2000. 106 He likewise sought the services of a
private practitioner, Dr. Eduardo T. Maaba, who came out
with his own evaluation of Judge Floro on 3 January 2001.
107
Thus, Judge Floro trooped to the Supreme Court Clinic for
the third time in December 2000, this time in connection with
A.M. No. RTJ-99-1460. Francianina G. Sanchez, Clinical
Psychologist and Chief Judicial Staff Officer reported that
"(o)ver all data strongly suggest a delusional disorder with
movement in the paranoid direction." Dr. Celeste Vista, for
her part, stated that:
Based on the clinical data gathered, it appears that Judge
Floro is basically a cautious, and suspicious individual with a
compulsion to analyze and observe motives in his milieu.
Despite his status, cognitive assets and impressive
educational background, his current functioning is gauged
along the LOW AVERAGE intelligence.
He can function and apply his skills in everyday and routine
situations. However, his test protocol is characterized by
disabling indicators. There is impairment in reality testing
which is an indicator of a psychotic process. He is unable to
make an objective assessment and judgment of his milieu.
Hence, he is apt to misconstrue signals from his
environment resulting to perceptual distortions, disturbed
associations, and lapses in judgment. Such that, cultural
beliefs in dwarfs, psychic and paranormal phenomena and
divine gifts of healing have become incorporated in a
delusional (false and unshakable beliefs) system, that it has
interfered and tainted his occupational and social
functioning. Hence, he is found to be unfit in performing his
court duties as a judge. 108
Pursuant to the aforecited December 2000 interview of
Judge Floro, Supreme Court Senior Chief Staff Officer Rosa
J. Mendoza, M.D., reported to Chief Justice Hilario G.
Davide, Jr. in March 2001 that
The findings of mental and psychological incapacity is thus
substantially supported by evidence. Based on the three[3]
psychological tests and evaluation of the two[2] psychiatrists,
the undersigned has no other recourse but to recommend
that Judge Florentino Floro be declared unfit to discharge his
duties as a Judge, effective immediately.
Not one to take this last recommendation sitting down,
Judge Floro submitted earlier psychological evaluations
conducted by several mental health professionals which
were all favorable to him. The first three evaluations were in
connection with his application as RTC Judge of Malabon
City in 1998 brought about by him having "failed" the
examination given by the Supreme Court Clinic. The report
dated 04 September 1998 by staff psychologist, Rowena A.
Reyes as noted by clinical Psychologist, Ma. Teresa Gustilo-
Villasor of the Metropolitan Psychological Corporation
(MPC), states in part:
I. INTELLECTUAL/COGNITIVE CHARACTERISTICS
SUMMARY OF INTELLECTUAL/COGNITIVE
CHARACTERISTICS
1. FFJ can draw from above average intellectual resources
to cope with everyday demands. He is able to handle both
concrete and abstract requirements of tasks. Alert to details,
he has a logical approach in evaluating the relationship
between things and ideas.
2. He thrives in predictable and structured situations, where
he can consider solid facts to arrived (sic)at concrete,
tangible outcomes. Task-oriented, he can organize
procedures and details so as to get things done correctly
and on schedule. He uses conventional standards to
determine personal progress. Set in his views, he may not
readily accept others ideas and contributions especially if
these oppose his own.
3. A serious and thorough approach to his commitments is
expected of FFJ. Generally, he prefers to control his
emotions and does not let this get in the way of his judgment
and decisions.
II. EMOTIONAL/INTERPERSONAL CHARACTERISTICS
FFJ is motivated by the need to be recognized and
respected for his undertakings. Achievement-oriented, he
sets high personal standards and tends to judge himself and
others according to these standards. When things do not
develop along desired lines, he may become restless and
impatient. Nevertheless, he is careful of his social stature
and can be expected to comply with conventional social
demands. 109
Testifying as one of Judge Floros witnesses, Rowena A.
Reyes opined on cross-examination that "psychologically
speaking," Judge Floro was not fit to be a judge. Thus:
JUDGE AQUINO:
Q: Now, that we are telling you that Judge Floro based on
his testimony here and on every available records of the
proceedings, has been claiming that he [is] possessed with
Psychic Powers and he did not tell you that in the interview.
Would you consider his failure to tell you about his Psychic
Powers to be a fatal [flaw]?
xxxx
A: Yes, Sir.
Q: Very grave one, because it will affect the psychological
outlook of the patient?
A: Yes, Sir.
xxxx
Q: I tell you now, Judge Floro has been claiming in [these]
proceedings and you were here when we were cross-
examining Mr. Licaoco and you heard that we mentioned in
the course of our cross-examination. Would you consider his
failure to tell you about his power of by location to be a fatal
[flaw] and your assessment of his psychological outlook?
xxxx
A: Yes, Sir.
Q: Fatal [flaw]?
A: Yes, Sir.
Q: Did Judge Floro tell you also in the course of the interview
that he is capable of being in a trance?
A: He did not.
Q: So, he did not tell you that while in a trance he could type
letters?
A: He did not.
xxxx
Q: And reality oriented and a reality oriented person is one
who will not be pronouncing or making pronouncement
concerning his psychic powers. Is this not correct?
xxxx
A: Yes sir.
Q: A reality oriented person is also one who will not claim
that he is capable of having trances in the course of his
private activities and even in the course of the performance
of his official duty as a Judge. Will you not agree with that?
A: I agree with you, Sir.
Q: And if he will do so, he will not be actually a reality
oriented person. Meaning tatagalugin ko na po nakukuha
naman "na ako ay psychic, na ako ay pwedeng ipower ng by
location, na kaya kong mag trance. Gumawa pa ng ibat iba
pang bagay at the same time." Yan ay hindi compatible sa
pagiging reality oriented?
A: Yes, Sir.
Q: And a person who is not reality oriented is not fit to sit as
a Judge.
xxxx
Q: I will add the phrase Psychologically speaking.
xxxx
A: Yes, Sir. 110
Another psychiatrist, Pacita Ramos-Salceda, M.D., Senior
Consultant Psychiatrist of the Makati Medical Center, stated
in her report dated 3 September 1998 that at the time of the
interview Judge Floro
[W]as enthusiastic and confident. He is well informed about
current issues, able to discuss a wide variety of topics
intelligently without hesitation. His thinking is lucid, rational,
logical and reality based. He is well oriented, intelligent,
emotionally stable, with very good judgment. There is no
previous history of any psychological disturbances. 111
This was followed by the evaluation of Eduardo L. Jurilla,
M.D., dated September 1998, who stated in his report that
Atty. Floro is an asthenic, medium height, fairly groomed, be-
spectacled person with graying hair. When interviewed he
was somewhat anxious, elaborative and at times
approximate in his answers. He was alert, oriented,
conscious, cooperative and articulate in Pilipino and English.
He denied any perceptual disturbances. Stream of thought
was logical and goal-directed. There was pressure of speech
with tendency to be argumentative or defensive but there
were no flight of ideas, thought blocking, looseness of
associations or neologisms. Delusions were not elicited.
Affect was broad and appropriate but mood was anxious.
There were no abnormal involuntary movements or tics.
Impulse control is good. Cognition is intact. Judgment,
insight, and other test for higher cortical functions did not
reveal abnormal results.
Comments: The over-all results of this psychiatric evaluation
of Atty. Florentino V. Floro, Jr. do not contradict his
nomination and appointment to the post he is seeking. 112
On the witness stand, however, and testifying as Judge
Floros witness, Dr. Jurilla clarified that the interview had its
limitations 113 and he might have missed out certain
information left out by his patient. 114 The following
exchange is thus instructive:
JUDGE AQUINO: x x x. Did Judge Floro tell you in the
interview that he has little unseen, unheard friends known as
duwendes?
DR. JURILLA: He did not.
xxxx
Q: Did you interview Judge Floro or did he [volunteer] to you
information about his claim to be the number five psychic in
the country?
xxxx
A: No, Your Honor.
Q: He did not tell you also that he is gifted also with this so
called, psychic phenomena?
A: He did not.
xxxx
Q: He did not tell you also that in [traveling] from one place
to another, at least four (4) kilometers apart, he used to ride
on a big white or whatever it is, horse?
A: Not during our interview.
xxxx
A: It is possible like any other psychiatrist or mental health
doctor you might have missed some information or it is
possible that our clients or patients might not [have] told us
everything.
Q: And if your clients or patients did not tell you things such
as those that Judge Floro did not admittedly tell you in the
course of the interview, your opinion of the patient would be
altered a little?
xxxx
A: The answer has something to do whether my evaluation
may be altered. Yes, Your Honor in the absence of any
corroborative contradiction.
Q: More so, if the presence of confirming events that
transpired after the interview, would that be correct?
A: The interview has its limitations.
Q: Let us say, what Judge Floro did [not] tell you during the
interview are confirmed by events that transpired after the
interview, would you not say you have more reason to have
your evaluation altered?
A: Yes.
Q: Especially so if you will now know that after that interview
Judge Floro has been proclaiming himself as the number
five psychic in the country [where] no one has called him as
a psychic at all?
xxxx
Q: Would it be really more altered?
A: I would say so.
xxxx
Q: Returning to the confirming proofs, meaning after the
interview, which are confirmations of what Judge Floro did
not tell you during the interview, would your finding of
[J]udge Floro be drastically altered if he will tell you that he is
capable or possessed of the power of bilocation?
xxxx
A: I would probably try to for a diagnosis.
Q: Which may make a drastic alteration of your evaluation of
Judge Floros mental and psychological x x x?
A: My diagnosis I will be seeking for an abnormal condition.
Q: When you said abnormal something would have made
you suspect that there was abnormality in the person of
Judge Floro?
A: Given the data.
Q: We will give you the data or additional information. Would
you also have your evaluation favorable to Judge Floro
drastically altered if I tell you that based on record Judge
Floro has claimed that while in a trance he is capable of
typing a letter?
xxxx
A: If there is data toward that effect prior to September 1998,
probably drastically altered. 115
Lastly, Judge Floro presented the psychiatric evaluation of
Eduardo T. Maaba, M.D., 116 dated 3 January 2001, the
relevant portions of which state:
Affect was adequate and no mood incongruity was
observed. Content of thought did not reveal delusional
thought. He was proud of his achievements in line with his
profession and expressed his frustration and dissatisfaction
with the way his colleagues are handling his pending
administrative cases. He was observed to be reality-oriented
and was not suffering from hallucinations or abnormal
perceptual distortions. Orientation, with respect to time,
place and person, was unimpaired. Judgment and decision-
making capacity were adequately functioning.
xxxx
An open-ended clinical interview was conducted at our clinic
on December 26, 2000. He talked about his family and
academic achievements. He claimed to possess a divine gift
for prophecy and a gift of healing. He also talked about a
"covenant" made during a dream between him and 3 dwarf
friends named Luis, Armand and Angel. He reported that the
first part of his ministry is to cast illness and/or disease and
the second part is to heal and alleviate sufferings/pain from
disease.
A series of psychological test was administered to Judge
Floro on December 28, 2000. The battery of test consisted of
the following: (1) Otis-Lennon Mental Ability Test (2) SRA
Language Test (3) Purdue Non-Language Test (4) Sacks
Sentence Completion Test and (5) Draw A Person Test. Test
results and evaluation showed an individual with an Above
Average Intelligence. Projective data, showed an obsessive-
compulsive person who is meticulous to details and strive for
perfection in tasks assigned to him. He is reality-oriented
and is deemed capable of making day-to-day decisions in
his personal as well as professional decisions. Confusion
with regard to sexual identification, was further observed.
Based on the clinical observation and the results of the
psychological tests, respondent Judge Florentino V. Floro,
Jr., was found to be a highly intelligent person who is reality-
oriented and is not suffering from any major psychotic
disorder. He is not deluded nor hallucinated and is capable
of utilizing his superior intellect in making sound decisions.
His belief in supernatural abilities is culture-bound and needs
further studies/work-ups.
On cross-examination by Judge Aquino, however, Dr. Maaba
also stated that Judge Floro was unfit to be a judge. 117 The
relevant exchanges between Dr. Maaba and Judge Aquino
are hereunder reproduced:
JUDGE AQUINO: And would you say that something is
wrong with a judge who shall claim that he is possessed with
power of [bi-location]?
xxxx
DR. MAABA: A reality-oriented individual would not claim to
be in two (2) places at one time.
Q: And that something must be wrong?
A: Yes.
Q: Okay. Would you say that something is wrong also with a
judge claiming in the course of his testimony and in this very
case that while [he] was so testifying there is another spirit,
another person, another character unseen who is with him at
the same time or in tagalog "sumapi sa kanya".
xxxx
A: The observation that Judge Floro had unseen companion
"sumapi" to me is unbelievable.
Q: Unbelievable. And anyone claiming it might be suffering
from some delusion?
xxxx
A: It could be and it could not be considered as perceptual
distortion, your Honor.
Q: No, Delusion.
A: Delusions, no, but Hallucinations, maybe yes.
Q: Ah, Hallucination, and which maybe worse?
A: Both are on the same footing.
Q: Okay. Would you say that the person declaring in a
proceeding as a witness about hallucinatory matters would
turn out to be fit to become a judge?
xxxx
A. If these delusions or hallucinations are part and parcel of
a major psychiatric disorder like schizophrenia or an organic
mental disorder, this individual suffering from hallucinations
or delusions is unfit to sit as a judge, however, there is, this
symptom might also exi[s]t in a non-psychotic illness and the
hallucinations and delusions could be transient and short in
duration.
Q: But of doubtful capacity to sit as a judge?
A: Yes, doubtful capacity.
Q: Now, trance is something covered by the field of which
you are practicing with psychiatry.
A: Yes.
Q: Would you consider a person claiming in the course of a
judicial, quasi-judicial or administrative proceedings
particularly in the course of his testimony that while he was
doing so, he was under trance normal.
xxxx
A: Let me explain the phenomenon of trance it is usually
considered in the Philippines as part of a culture bound
syndrome and it could also be an indication Basically the
phenomenon of trance are often seen in cases of organic
mental disorder. It is also common in culture bound
syndrome and the effect of person is usually loss of
concentration in a particular settings or situations so that a
person or a judge hearing a case in court would [lose]
concentration and would not be able to follow up testimony
of witnesses as well as arguments given by the counsel for
the defense and also for the prosecution, so I would say that
there is this difficulty in manners of attention span and
concentration if that person sitting as a judge experience
trance as in the case of Judge Floro, this trance is
manifested by flashing of lights and he might not be able to
rationalize or to control expressions or as well as physical
when he is in a trance.
Q: Have you heard of a judge claiming that in the course of a
proceeding, he was in a trance?
A: No, I have not encountered any.
Q: And if you hear one and will be shown records of one
maybe such claim you will call that person not a normal
person.
A: Maybe weird.
Q: I will now show to you portions of the stenographic notes
of the proceedings in these cases held on October 10, 2000,
afternoon session, page 30 we start with the question of Atty.
Dizon. "Atty. Dizon: Mr. witness, can you tell us? Are you in
trance at this very precise moment? JUDGE FLORO, JR.:
"Nakalakip sila". I call it a trance, but I distinguished not the
trance that you see the nag-sa-Sto., Nino, naninigas.
Thats a trance that is created by the so called Because
Fr. Jaime Bulatao, multi awarded Jesuit priest, considered
that as mind projection. He is correct in a sense that those
nagta-trance na yan, naninigas, the mind projection or the
hypnosis do come, and there is a change in the
psychological aspect of the person. But in my case I never
was changed physically or mentally. Only the lights and heat
will penetrate that person. ATTY. DIZON: That will do. So at
this very moment, Mr. witness, "meron kayong kalakip
ngayon?"" "Ngayong oras na ito?" JUDGE FLORO: Yes,
they are here. Atty. DIZON: Where are they? Judge Floro,
Jr.: They cannot be seen but ATTY. DIZON: No, can you
see them?" To point to us where are they in this room?",
Now that you have read and seen this portion wherein Judge
Floro himself admitted that in the course of his testimony in
these cases he was in a trance, would you still consider him
at least insofar as this claim of his to be a normal person?
A: No.
Q: No, okay, so he is not normal. Now, Judge Floro in these
proceedings also and I will show to you the transcript of
stenographic notes later have claimed that he had, always
had and still had a socalled counter part, his other side,
other self, what can you say to that claim, would that be the
claim of a normal, mental sound person?
A: No.
Q: And one who is not normal and mentally sound is of
course not fit to sit as judge?
xxxx
A: Yes. 118
Based on the foregoing, the OCA, thru Justice Ramirez,
reported that:
Upon the testimony of his own witnesses, Drs. Eduardo T.
Maaba, Ma. Nieves Celeste and Eduardo L. Jurilla,
respondent Judge Florentino V. Floro, Jr. is unfit because of
insanity to remain in office as Judge of the Regional Trial
Court, National Capital Judicial Region, Malabon, Metro
Manila, Branch 73.
It is weird for respondent Judge to state in one of his
pleadings in this case that President Estrada would not finish
his term as President. It is unusual and queer of him to state
in his calling card that he is a graduate of Ateneo de Manila,
second honors, bar topnotcher with a grade of 87.55% and
include in his address the name Colonel Reynaldo
Cabauatan who was involved in a coup detat attempt. So is
it strange of him to make use of his alleged psychic powers
in writing decisions in the cases assigned to his court. It is
improper and grandiose of him to express superiority over
other judges in the course of hearings he is conducting and
for him to say that he is very successful over many other
applicants for the position he has been appointed. It is
abnormal for a Judge to distribute self-serving propaganda.
One who distributes such self-serving propaganda is odd,
queer, amusing, irresponsible and abnormal. A judge
suffering from delusion or hallucination is unfit to be one. So
is he who gets into a trance while presiding at the hearing of
a case in court. One need not be a doctor of medicine, a
psychiatrist and a psychologist to determine and conclude
that a person in such circumstances is mentally unfit or
insane and should not be allowed to continue discharging
the duties and functions of a judge. The life, liberty and
property of the litigants in the court presided by such judge
are in his hands. Hence, it is imperative that he is free from
doubt as to his mental capacity and condition to continue
discharging the functions of his office.
RECOMMENDATION
WHEREFORE, it is respectfully recommended that by
reason of insanity which renders him incapable and unfit to
perform the duties and functions of Judge of the Regional
Trial Court, National Capital Judicial Region, Malabon, Metro
Manila, Branch 73, respondent Florentino V. Floro, Jr. be
REMOVED and DISMISSED from such office. 119
We are in agreement with the OCA that Judge Floro cannot
remain as RTC Judge because of the findings of mental
impairment that renders him unfit to perform the functions of
his office. We hasten to add, however, that neither the OCA
nor this Court is qualified to conclude that Judge Floro is
"insane" as, in fact, the psychologists and psychiatrists on
his case have never said so.
When Justice Ramirez recommended that Judge Floro be
dismissed from the service due to "insanity," he was
apparently using the term in its loose sense. Insanity is a
general laymans term, a catchall word referring to various
mental disorders. Psychosis is perhaps the appropriate
medical term 120 as this is the one used by Drs. Vista and
Villegas of the Supreme Court Clinic. It is of note that the
1995, 1998 and 2000 psychological evaluations all reported
signs and symptoms of psychosis.
Courts exist to promote justice; thus aiding to secure the
contentment and happiness of the people. 121 An
honorable, competent and independent judiciary exists to
administer justice in order to promote the stability of
government, and the well-being of the people. 122 Carrying
much of the weight in this daunting task of administering
justice are our front liners, the judges who preside over
courts of law and in whose hands are entrusted the destinies
of individuals and institutions. As it has been said, courts will
only succeed in their tasks if the judges presiding over them
are truly honorable men, competent and independent. 123
There is no indication that Judge Floro is anything but an
honorable man. And, in fact, in our disposition of the 13
charges against him, we have not found him guilty of gross
misconduct or acts or corruption. However, the findings of
psychosis by the mental health professionals assigned to his
case indicate gross deficiency in competence and
independence.
Moreover, Judge Floro himself admitted that he believes in
"psychic visions," of foreseeing the future because of his
power in "psychic phenomenon." He believes in "duwendes"
and of a covenant with his "dwarf friends Luis, Armand and
Angel." He believes that he can write while on trance and
that he had been seen by several people to have been in
two places at the same time. He has likened himself to the
"angel of death" who can inflict pains on people, especially
upon those he perceived as corrupt officials of the RTCs of
Malabon. He took to wearing blue robes during court
sessions, switching only to black on Fridays. His own
witness testified that Judge Floro explained that he wore
black from head to foot on Fridays to recharge his psychic
powers. Finally, Judge Floro conducted healing sessions in
his chambers during his break time. All these things validate
the findings of the Supreme Court Clinic about Judge Floros
uncommon beliefs and that such beliefs have spilled over to
action.
Lest we be misconstrued, we do not denigrate such belief
system. However, such beliefs, especially since Judge Floro
acted on them, are so at odds with the critical and impartial
thinking required of a judge under our judicial system.
Psychic phenomena, even assuming such exist, have no
place in a judiciary duty bound to apply only positive law
and, in its absence, equitable rules and principles in
resolving controversies. Thus, Judge Floros reference to
psychic phenomena in the decision he rendered in the case
of People v. Francisco, Jr. 124 sticks out like a sore thumb.
In said decision, Judge Floro discredited the testimony of the
prosecutions principal witness by concluding that the
testimony was a "fairytale" or a "fantastic story." 125 He then
went to state that "psychic phenomena" was destined to
cooperate with the stenographer who transcribed the
testimony of the witness. The pertinent portion of Judge
Floros decision is quoted hereunder:
3. The testimony of the prosecutions PRINCIPAL witness
(sole eyewitness of the incident) NORMANDY is
INCREDIBLE, is full of inconsistencies (major and not
regarding minor points), ergo, the court concludes that due
to several indicia of fraud/perjury (flagrant/palpable
deception of the Court), his testimony is not worthy of belief,
assuming ex-gratia argumenti, that the same may be
admissible, and his Court narrative is hereby declared a
FAIRY TALE or a FANTASTIC STORY of a crime scene that
is acceptable only for SCREEN/cinematic viewing. The
following details, are proof of the foregoing conclusion:
a.) NORMANDY swore that he, Ponciano Ineria and Raul
Ineria were "sinalubong" by Lando/accused on June 21,
1987 at 2:30 a.m. at alley Wesleyan/Tangos, Navotas, and
that he saw the "nagpambuno" between Raul and Ando, and
that HE SAW P. INERIA dead, but HE WAS NO LONGER
THERE, but he still saw the "nagpambuno"; MORE
IMPORTANTLY, he SWORE that HE NOTICED the
ACCUSED P. Francisco THE FOLLOWING DAY;
b.) The foregoing verily demonstrate his 11th HOUR
CONCOCTION (Big Lie, having been asked to submit false
testimony); for how could have he witnessed the stabbing by
accused when he NOTICED him the following day? (TSN
dated May 2, 1995, pp. 1-2); assuming arguendo that the
TSN was incorrect due to typographical error, or maybe the
Court Stenographer III Eloisa B. Domingo might have been
SLEEPING during the testimony, so that the word DAY
should have been corrected to another word SUITABLE to
Normandys FAIRY TALE, still, the Court had synthesized the
entire NARRATIVE of Normandy, but the Court found no
reason that the seeming error DAY should be corrected; the
Courts sole/remaining conclusion is that EVEN the
STENOGRAPHIC NOTES cooperated by PSYCHIC
PHENOMENA perhaps of FOR SURE, in having BEEN
DESTINED to be FATEFULLY INSCRIBED WITH THE
WORDS FOLLOWING DAY (line 3, p. 3 TSN, id.) 126
(Emphasis supplied)
In State Prosecutors v. Muro 127 we held that
What is required on the part of judges is objectivity. An
independent judiciary does not mean that judges can resolve
specific disputes entirely as they please. There are both
implicit and explicit limits on the way judges perform their
role. Implicit limits include accepted legal values and the
explicit limits are substantive and procedural rules of law.
128
The judge, even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own ideal of beauty or
goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinate to the "primordial
necessity of order in the social life." 129
Judge Floro does not meet such requirement of objectivity
and his competence for judicial tasks leaves much to be
desired. As reported by the Supreme Court Clinic:
Despite his impressive academic background and
achievements, he has lapses in judgment and may have
problems with decision-making. His character traits such as
suspiciousness and seclusiveness and preoccupation with
paranormal and psychic phenomena though not detrimental
to his role as a lawyer, may cloud his judgment, and hamper
his primary role as a judge in dispensing justice. x x x 130
Judge Floros belief system, as well as his actuations in the
eight months that he served as RTC judge, indubitably
shows his inability to function with the cold neutrality of an
impartial judge.
Verily, Judge Floro holds an exalted position in our system of
government. Thus:
Long before a man dons the judicial robes, he has accepted
and identified himself with large components of the judges
role. Especially if he has aspired to a judges status, he is
likely to have conducted himself, more or less unconsciously,
in the fashion of one who is said to have "the judicial
temperament." He is likely to have displayed the kinds of
behavior that the judges role demands. A large proportion of
his experiences on the bench develop and reinforce such
conformity, moreover. The ritualistic elements of investiture
and of court procedure, the honorific forms of address, and
even the imposing appearance of some court buildings serve
to emphasize the demands upon his behavior. Even the
most unscrupulous former ambulance chaser who owes his
position to a thoroughly corrupt political organization must
conform at least in part to the behaviors expected of him as
a judge. 131
The expectations concerning judicial behavior are more than
those expected of other public officials. Judges are seen as
guardians of the law and they must thus identify themselves
with the law to an even greater degree than legislators or
executives. 132

As it has been said, "[j]udges administer justice judicially,
i.e., not according to some abstract ideas of right and justice,
but according to the rules laid down by society in its Code of
Laws to which it gives its sanctions. The function of the
judge is primarily adjudication. This is not a mechanical craft
but the exercise of a creative art, whether we call it
legislative or not, which requires great ability and objectivity."
133 We, thus, quote Justice Frankfurter, in speaking of the
functions of the Justices of the Supreme Court of the United
States:
To practice the requisite detachment and to achieve
sufficient objectivity no doubt demands of judges the habit of
self-discipline and self-criticism, incertitude that ones own
views are incontestable and alert tolerance toward views not
shared. But these are precisely the presuppositions of our
judicial process. They are precisely the qualities society has
a right to expect from those entrusted with judicial power.
xxxx
The judicial judgment must move within the limits of
accepted notions of justice and is not to be based upon the
idiosyncrasies of a merely personal judgment. 134
In fine, Judge Floro lacks the judicial temperament and the
fundamental requirements of competence and objectivity
expected of all judges. He cannot thus be allowed to
continue as judge for to do so might result in a serious
challenge to the existence of a critical and impartial judiciary.
Equitable considerations entitle Judge Floro backwages and
other economic benefits for a period of three (3) years.
In retrospect, we are forced to say that Judge Floro should
not have joined the judiciary as RTC judge. However, we
have assiduously reviewed the history of this case and we
cannot hold anyone legally responsible for such major and
unfortunate faux pas.
Judge Floro did not breach any rule of procedure relative to
his application for judgeship. He went through the entire
gamut of tests and interviews and he was nominated by the
JBC on the strength of his scholastic achievements. As to
having failed the psychological examinations given by the
SC Clinic, it must be pointed out that this was disregarded by
the JBC upon Judge Floros submission of psychiatric
evaluations conducted by mental health professionals from
the private sector and which were favorable to him. Nowhere
is it alleged that Judge Floro acted less than honorably in
procuring these evaluations.
The JBC in 1999 had all the discretion to refer Judge Floro
to a private clinic for a second opinion of his mental and
psychological fitness. In performing its functions, the JBC
had been guided primarily by the Constitution which
prescribes that members of the Judiciary must be, in addition
to other requirements, persons of proven competence,
integrity, probity and independence. 135 It was only on 18
October 2000 when it promulgated JBC-009, the "Rules of
the Judicial and Bar Council," that the JBC put down in
writing guidelines or criteria it had previously used in
ascertaining "if one seeking such office meets the minimum
constitutional qualifications and possesses qualities of mind
and heart expected of the Judiciary." 136 Rule 6 thereof
states:
SECTION 1. Good health. Good physical health and sound
mental/psychological and emotional condition of the
applicant play a critical role in his capacity and capability to
perform the delicate task of administering justice. x x x
SEC. 2. Psychological/psychiatric tests. The applicant shall
submit to psychological/psychiatric tests to be conducted by
the Supreme Court Medical Clinic or by a psychologist
and/or psychiatrist duly accredited by the Council.
It would seem that as things stood then, the JBC could very
well rely on the evaluation of a private psychologist or
psychiatrist not accredited by the JBC. Thus, the JBC cannot
be faulted for accepting the psychological evaluations of
mental health professionals not affiliated with the Supreme
Court Clinic.
It goes without saying that Judge Floros appointment as
RTC judge is fait accompli. What awaits us now is the
seemingly overwhelming task of finding the PROPER, JUST
AND EQUITABLE solution to Judge Floros almost seven
years of suspension in the light of the fact that the penalty
imposed herein does not merit a suspension of seven years.
Verily, the Supreme Court is vested with the power to
promulgate rules concerning pleading, practice and
procedure in all courts. 137 The Constitution limits this
power through the admonition that such rules "shall provide
a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify
substantive rights." 138
Rule 140 of the Rules of Court outlines the procedure to be
followed in administrative cases against judges. Glaringly,
Rule 140 does not detail the steps to be taken in cases when
the judge is preventively suspended pending investigation.
This is the state of things even after its amendment by A.M.
No. 01-8-10-SC which took effect on 1 October 2001.
The Supreme Courts power to suspend a judge, however, is
inherent in its power of administrative supervision over all
courts and the personnel thereof. 139 This power --
consistent with the power to promulgate rules concerning
pleading, practice and procedure in all courts -- is hemmed
in only by the Constitution which prescribes that an adjective
law cannot, among other things, diminish, increase or modify
substantive rights.
The resolution of 20 July 1999 which put Judge Floro under
preventive suspension resolved to:
(1) DIRECT Judge Florentino V. Floro, Jr. to answer the
foregoing charges against him within ten (10) days from
notice; (2) REFER this case to Retired Justice Pedro
Ramirez, Consultant, Office of the Court Administrator for
investigation, report and recommendation, within sixty (60)
days from receipt of the records thereof; (3) SUBJECT
Judge Florentino V. Floro, Jr. for appropriate psychological or
mental examination to be conducted by the proper office of
the Supreme Court or any duly authorized medical and/or
mental institution.
Moreover, the Court RESOLVED to place Judge Florentino
Floro, effective immediately under PREVENTIVE
SUSPENSION for the duration of the investigation of the
administrative charges against him. 140
As can be gleaned from the above-quoted resolution, Judge
Floros suspension, albeit indefinite, was for the duration of
the investigation of the 13 charges against him which the
Court pegged at 60 days from the time of receipt by the
investigator of the records of the case. Rule 140, as
amended, now states that "(t)he investigating Justice or
Judge shall terminate the investigation within ninety (90)
days from the date of its commencement or within such
extension as the Supreme Court may grant" 141 and,
"(w)ithin thirty (30) days from the termination of the
investigation, the investigating Justice or Judge shall submit
to the Supreme Court a report containing findings of fact and
recommendation." 142
From the foregoing, the rule now is that a Judge can be
preventively suspended not only for the entire period of his
investigation which would be 90 days (unless extended by
the Supreme Court) but also for the 30 days that it would
take the investigating judge or justice to come up with his
report. Moreover, the Court may preventively suspend a
judge until such time that a final decision is reached in the
administrative case against him or her. 143 This is because
[U]nlike ordinary civil service officials and employees, judges
who are charged with a serious offense warranting
preventive suspension are not automatically reinstated upon
expiration of the ninety (90)-day period, as mandated above.
The Court may preventively suspend a judge until a final
decision is reached in the administrative case especially
where there is a strong likelihood of his guilt or complicity in
the offense charged. Indeed, the measure is intended to
shield the public from any further damage or wrongdoing that
may be caused by the continued assumption of office by the
erring judge. It is also intended to protect the courts image
as temples of justice where litigants are heard, rights and
conflicts settled and justice solemnly dispensed.
This is a necessary consequence that a judge must bear for
the privilege of occupying an exalted position. Among civil
servants, a judge is indeed in a class all its own. After all, in
the vast government bureaucracy, judges are beacon lights
looked upon as the embodiment of all what is right, just and
proper, the ultimate weapons against justice and oppression.
144
In the case of Judge Floro, he is under preventive
suspension up to the present because of the serious charge
of mental unfitness aggravated by the fact that the actual
investigation into his cases dragged on for a much longer
period than 90 days. And the reasons for the delay, for the
most part, can be directly ascribed to Judge Floro himself.
From the records, it would seem that not only did Judge
Floro move for several re-settings of the hearings of his
cases; he likewise dragged his feet with respect to the order
to submit himself to the appropriate psychological/mental
examination. Worse, what started out as single case against
him ballooned into 10 cases which were consolidated into
one due to common questions of fact and law. 145 All in all,
Judge Floro filed seven cases against those he perceived
had connived to remove and/or suspend him from office, the
last of which he filed on 19 May 2003 against Justice
Ramirez. 146
Be that as it may, EQUITY demands that we exercise utmost
compassion in this case considering that the rules on
preventive suspension of judges, not having been expressly
included in the Rules of Court, are amorphous at best. We
have ruled similarly in the case of Judge Philbert Iturralde,
thus:
Be that as it may, we cannot in conscience hold that a judge
who was placed under preventive suspension pending
investigation is not entitled to the payment of back salaries,
allowances and other economic benefits for the entire
duration of the preventive suspension. The inequity of the
doctrine as applied to judges is clearly apparent, given the
peculiar circumstance in which a judge finds himself
preventively suspended by the Court "until further orders".
In this case, Judge Iturralde was preventively suspended for
13 months, during which period he was not paid his
salaries, allowances and other benefits. Except for a
teaching job that the Court permitted him to undertake
pending resolution of the administrative case, Judge
Iturralde had no other source of income. He thus incurred
several loans to provide for his familys basic needs.
It would thus be unjust to deprive Judge Iturralde of his back
salaries, allowances and other economic benefits for the
entire period that he was preventively suspended. As we
have said in Gloria v. Court of Appeals, preventive
suspension pending investigation is not a penalty but only a
measure intended to enable the disciplining authority to
conduct an unhampered formal investigation. We held that
ninety (90) days is ample time to conclude the investigation
of an administrative case. Beyond ninety (90) days, the
preventive suspension is no longer justified. Hence, for
purposes of determining the extent of back salaries,
allowances and other benefits that a judge may receive
during the period of his preventive suspension, we hold that
the ninety-day maximum period set in Gloria v. Court of
Appeals, should likewise be applied.
Concededly, there may be instances when an investigation
would extend beyond ninety (90) days and such may not be
entirely unjustified. Nevertheless, we believe that in such a
situation, it would be unfair to withhold his salaries and other
economic benefits for the entire duration of the preventive
suspension, moreso if the delay in the resolution of the case
was not due to his fault. Upon being found innocent of the
administrative charge, his preventive suspension exceeding
the ninety-day (90) period actually becomes without basis
and would indeed be nothing short of punitive. It must be
emphasized that his subsequent acquittal completely
removed the cause for his preventive suspension in the first
place. Necessarily, therefore, we must rectify its effects on
just and equitable grounds. 147
Taking off from the case of Judge Iturralde, we hold that
Judge Floro is likewise entitled to the payment of back
salaries, allowances and other economic benefits being at
the receiving end of a rule peculiar to judges who find
themselves preventively suspended by the Court "until
further orders" or, as this case, "for the duration of the
investigation." Judge Iturraldes suspension of 13 months
even pales in comparison to Judge Floros suspension of 81
months, more or less. During this entire excruciating period
of waiting, Judge Floro could not practice his profession,
thus putting him solely at the mercy of his brothers largesse.
And, though he was given donations by those who came to
him for healing, obviously, these could not compensate for
his loss of income as Judge.
Unlike the case of Judge Iturralde, however, wherein we held
that the period of suspension exceeding 90 days should be
the basis for the payment of back salaries, we hold that, as a
matter of equity, Judge Floro is entitled to back salaries,
allowances and other economic benefits for a period
corresponding to three of his almost seven years
suspension. We cannot apply the ruling in Gloria that any
suspension served beyond 90 days must be compensated
as we would be, in effect, rewarding Judge Floros
propensity to delay the resolution of his case through the
indiscriminate filing of administrative cases against those he
perceived connived to oust him out of office. In Judge
Iturraldes case, the investigation was not delayed through
any fault of his. More importantly, Judge Iturralde was
ultimately held innocent, thus, using by analogy Gloria v.
Court of Appeals, his suspension in excess of 90 days was
already in the nature of a penalty which cannot be
countenanced precisely because, being innocent, he cannot
be penalized. Judge Floro, on the other hand, and as
already discussed, contributed to the delay in the
investigation of his cases. Moreover, unlike Judge Iturralde,
Judge Floro has not been adjudged innocent of all the 13
charges against him.
These facts, however, as we have already discussed, do not
put Judge Floro beyond the reach of equity. To paraphrase
Justice Brandeis, equity does not demand that its suitors are
free of blame. As we are wont to say:
Equity as the complement of legal jurisdiction seeks to reach
and do complete justice where courts of law, through the
inflexibility of their rules and want of power to adapt their
judgments to the special circumstances of cases, are
incompetent so to do. Equity regards the spirit of and not the
letter, the intent and not the form, the substance rather than
the circumstance, as it is variously expressed by different
courts. 148
In fine, notwithstanding the fact that Judge Floro is much to
blame for the delay in the resolution of his case, equitable
considerations constrain us to award him back salaries,
allowances and other economic benefits for a period
corresponding to three years. This is because Judge Floros
separation from the service is not a penalty as we ordinarily
understand the word to mean. It is imposed instead upon
Judge Floro out of necessity due to a medically disabling
condition of the mind which renders him unfit, at least at
present, to continue discharging the functions of his office.
The period of three years seems to us the most equitable
under the circumstances. As discussed, if we were to give
him more than three years of back salaries, etc., then it
would seem that we are rewarding him for his role in
delaying the resolution of these cases (as well as the seven
cases he filed which were only dismissed on 14 February
2006 at his own bidding). On the other hand, if we were to
peg the period at less than three years then the same would
only be a pittance compared to the seven years suspension
he had to live through with Damocles sword hanging over
his head and with his hands bound as he could not practice
his profession.
Judge Floros separation from the service moots the case
against him docketed as A.M. No. 99-7-273-RTC (Re:
Resolution Dated 11 May 1999 Of Judge Florentino V. Floro,
Jr.) A.M. No. RTJ-06-1988 (Luz Arriego v. Judge Florentino
V. Floro, Jr.), on the other hand, is dismissed for lack of
merit.
A.M. No. 99-7-273-RTC
It cannot be gainsaid that Judge Floros separation from the
service renders moot the complaint in A.M. No. 99-7-273-
RTC. As it is, even the most favorable of resolutions in this
case will not cause a ripple on the Courts decision to
separate Judge Floro from the service. Thus, this charge is
dismissed for being moot and academic.
A.M. No. RTJ-06-1988
Considering that this case is a replica of charge "h" in A.M.
No. RTJ-99-1460 and considering that charge "h" is without
basis, this particular complaint filed by Luz Arriego must
necessarily be dismissed for lack of merit.
Judge Floros separation from the service does not carry with
it forfeiture of all or part of his accrued benefits nor
disqualification from appointment to any other public office
including government-owned or controlled corporations.
As Judge Floros separation from the service cannot be
considered a penalty, such separation does not carry with it
the forfeiture of all or part of his accrued benefits nor
disqualification from appointment to any other public office
including government-owned or controlled corporations.
In fact, the psychological and psychiatric reports, considered
as the bedrock of the finding of mental impairment against
Judge Floro, cannot be used to disqualify him from re-
entering government service for positions that do not require
him to dispense justice. The reports contain
statements/findings in Judge Floros favor that the Court
cannot overlook in all fairness as they deserve equal
consideration. They mention Judge Floros assets and
strengths and capacity for functionality, with minor
modification of work environment. Thus:
a. High intellectual assets as a result of "self-discipline and
self- organization." 149
b. "(I)mpressive academic achievements" with "no drastic
change in his personality and level of functioning as a lawyer
in private practice." 150
c. "(C)haracter traits of suspiciousness, seclusiveness, pre-
occupation with paranormal and psychic phenomena not
detrimental to his role as a lawyer." 151
d. "Everyday situations can be comprehended and dealt with
in moderate proficiency . His concern for the details that
make up a total field represents his attempts at being
systematic and cautious." 152
e. "(E)quipped with analytical power." 153
Consequently, while Judge Floro may be dysfunctional as a
judge because of the sensitive nature of said position, he
may still be successful in other areas of endeavor.
Putting all of the above in perspective, it could very well be
that Judge Floros current administrative and medical
problems are not totally of his making. He was duly
appointed to judgeship and his mental problems, for now,
appear to render him unfit with the delicate task of
dispensing justice not because of any acts of corruption and
debasement on his part but clearly due to a medically
disabling condition.
Finally, if Judge Floros mental impairment is secondary to
genetics 154 and/or adverse environmental factors (and,
unfortunately, such essential information is not available), we
cannot condemn people for their faulty genes and/or adverse
environment factors they have no control over.
WHEREFORE, premises considered, the Court resolves to:
1) FINE Judge Florentino V. Floro, Jr. in the total amount of
FORTY THOUSAND (P40,000.00) PESOS for seven of the
13 charges against him in A.M. No. RTJ-99-1460;
2) RELIEVE Judge Florentino V. Floro, Jr. of his functions as
Judge of the Regional Trial Court, Branch 73, Malabon City
and consider him SEPARATED from the service due to a
medically disabling condition of the mind that renders him
unfit to discharge the functions of his office, effective
immediately;
3) As a matter of equity, AWARD Judge Florentino V. Floro,
Jr. back salaries, allowances and other economic benefits
corresponding to three (3) years;
4) DISMISS the charge in A.M. No. RTJ-06-1988 (Luz
Arriego v. Judge Florentino V. Floro, Jr.) for LACK OF
MERIT; and
5) DISMISS the charge in A.M. No. 99-7-273-RTC (Re:
Resolution Dated 11 May 1999 Of Judge Florentino V. Floro,
Jr.) for MOOTNESS.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-49711 November 7, 1979
ZAMBALES CHROMITE MINING CO., GONZALO P. NAVA,
VIOLA S. NAVA, FEDERICO S. NAVA, PERLA NAVA,
HONORATO P. NAVA, ALEJANDRO S. NAVA,
PURIFICACION SISON, A. TORDESILLAS, GUIDO
ADVINCULA, PEDRO ANGULO and TOMAS MARAMBA,
petitioners-appellants,
vs.
COURT OF APPEALS, SECRETARY OF AGRICULTURE
AND NATURAL RESOURCES, DIRECTOR OF MINES,
GREGORIO E. MARTINEZ, ALEJANDRO MENDEZ,
NICANOR MARTY, VICENTE MISOLES, GUILLERMO
YABUT, ANDRES R. FIAGOY, MIGUEL A. MANIAGO,
CASIMIRO N. EBIDO, ENRIQUE RIVERA, SEVERINO
MIVA, ELENITO B. MARTINEZ, LUCAS EDURAIN,
FELIMON ENCIO, EMILIO ILOCO, DIOSDADO MISOLA,
ERNESTO VALVERDE, PABLO PABILONA, ARMANDO
MINAS, BARTOLOME MARAVE and CECILIO OOVILLA,
respondents-appellees.
Tordesilla & Advincula for petitioners-appellants.
Mariano M. Lozada for private respondents-appellees.
AQUINO, J.:
This is a mining case. The petitioners appealed from the
second decision of the Court of Appeals, reversing its first
decision and holding that it was improper from Benjamin M.
Gozon, as Secretary of Agriculture and Natural Resources,
to affirm his own decision as Director of Mines.
The Court of Appeals further held that the trial court's
judgment, confirming the Secretary's decision, should be set
aside and that the Minister of Natural Resources should
review anew the decision of the Director of Mines "and,
thereafter, further proceedings will be taken in the trial court".
The antecedental proceedings are as follows:
(1) In Mines Administrative Case No. V-227, Director Gozon
issued an order dated October 5, 1960 wherein he
dismissed the case filed by the petitioners or protestants
(Zambales Chromite Mining Co., Inc. or the group of
Gonzalo P. Nava). In that case, they sought to be declared
the rightful and prior locators and possessors of sixty-nine
mining claims located in Santa Cruz, Zambales.
On the basis of petitioners' evidence (the private
respondents did not present any evidence and they filed a
demurrer to the evidence or motion to dismiss the protest),
Director Gozon found that the petitioners did not discover
any mineral nor staked and located mining claims in
accordance with law.
In that same order, Director Gozon ruled that the mining
claims of the groups of Gregorio Martinez and Pablo
Pabilona, now the private respondents-appellees, were duly
located and registered (pp. 224-231, Record on Appeal).
(2) The petitioners appealed from that order to the
Secretary of Agriculture and Natural Resources. While the
appeal was pending, Director Gozon was appointed
Secretary of Agriculture and Natural Resources. Instead of
inhibiting himself, he decided the appeal, DANR Case No.
2151, on August 16, 1963 as it he was adjudicating the case
for the first time. 'Thus, Secretary Gozon exercised appellate
jurisdiction over a case which he had decided as Director of
Mines. He acted as reviewing authority in the appeal from
his own decision. Or, to use another analogy, he acted as
trial judge and appellate judge in the same case.
He ruled that the petitioners had abandoned the disputed
mining claims, while, on the other hand, the Martinez and
Pabilona groups had validly located the said claims. Hence,
he dismissed the appeal from his own decision (pp. 340-341,
Record on Appeal).
(3) On September 20, 1963, the petitioners filed a
complaint in the Court of First Instance of Zambales,
assailing Secretary Gozon's decision and praying that they
be declared the prior locators and possessors of the sixty-
nine mineral claims in question. Impleaded as defendants in
the case were the Secretary of Agriculture and Natural
Resources, the Director of Mines and the members of the
Martinez and Pabilona groups.
After hearing, the lower court sustained Secretary Gozon's
decision and dismissed the case. It held that the
disqualification petition of a judge to review his own decision
or ruling (Sec. 1, Rule 137, Rules of Court) does not apply to
administrative bodies; that there is no provision in the Mining
Law, disqualifying the Secretary of Agriculture and Natural
Resources from deciding an appeal from a case which he
had decided as Director of Mines; that delicadeza is not a
ground for disqualification; that the petitioners did not
seasonably seek to disqualify Secretary Gozon from
deciding their appeal, and that there was no evidence that
the Secretary acted arbitrarily and with bias, prejudice,
animosity or hostility to the petitioners (pp. 386-9, Record on
Appeal).
(4) The petitioners appealed to the Court of Appeals. The
Sixth Division of that Court (Pascual, Agcaoili and Climaco,
JJ.) in its decision dated February 15, 1978 reversed the
judgment of the trial court and declared that the petitioners
were the rightful locators and possessors of the said sixty-
nine mining claims and held as invalid the mining claims
overlapping the same.
That Division found that the petitioners (Nava group) had
discovered minerals and had validly located the said sixty-
nine mining claims and that there was no sufficient basis for
Secretary Gozon's finding that the mining claims of the
Martinez and Pabilona groups were validly located.
(5) The defendants, now the private respondents-
appellees, filed a motion for reconsideration based
principally on the ground that the Court of Appeals should
have respected the factual findings of the Director of Mines
and the Secretary of Agriculture and Natural Resources on
the theory that the facts found in administrative decisions
cannot be disturbed on appeal to the courts, citing Republic
Act No. 4388 which amended section 61 of the Mining Law
effective June 19, 1965; Pajo vs. Ago, 108 Phil. 905;
Palanan Lumber & Plywood Co., Inc. vs. Arranz 65 O.G.
8473; Timbancaya vs. Vicente, 119 Phil. 169, Ortua vs.
Singson Encarnacion, 59 Phil. 440.
The defendants-movants prayed that the appeal be
dismissed, meaning that the decisions of the lower court and
of Director and Secretary Gozon be affirmed.
The petitioners opposed that motion for reconsideration. In
their opposition, they reiterated the contention in their brief
that Secretary Gozon's decision was void and, therefore, the
factual findings therein are not binding on the courts.
As already stated, the same Sixth Division (composed of
Pascula, Agrava and Maco, JJ.) in its second decision of
October 13, 1978, set aside its first decision and granted the
motion for curiously enough, the first decision was
reconsidered not on the ground advanced by the movants-
defendants, now the private respondents (Martinez and
Pabilona groups), which was that the factual findings of the
administrative officials should be upheld, but on the ground
raised in petitioners' opposition, namely, that Secretary
Gozon's decision was void because he was disqualified to
review his own decision as Director of Mines.
So, as already noted, the Court of Appeals in its second
decision remanded the case to the Minister of Natural
Resources for another review of Director Gozon's decision.
This was the prayer of the petitioners in their brief but in their
opposition to the motion for reconsideration, they prayed that
the first decision of the Court of Appeals in their favor be
maintained.
(6) The second decision did not satisfy the parties. They filed
motions for reconsideration. The petitioners in their motion
reiterated their prayer that the first decision be reinstated.
They abandoned their prayer that the case be returned to
the Minister of Natural Resources. On the other hand, the
private respondents in their motion insisted that the trial
court's decision be affirmed on the basis of the factual
findings of the Director of Mines and the Secretary of
Agriculture and Natural Resources. The Court of Appeals
denied both motions in its resolutions of December 27, 1978
and January 15, 1979.
Only the petitioners appealed from the second decision of
the Court of Appeals. There is an arresting and noteworthy
peculiarity in the present posture of this case now on appeal
to this Court (as arresting and noteworthy as the peculiarity
that Secretary Gozon reviewed his own decision as Director
of Mines),
That twist or peculiarity is that while the petitioners (Nava
group) in their appellants' brief in the Court of Appeals
prayed that Secretary Gozon's decision, alleged to be
biased, be declared void and that the case be returned to the
Secretary of Agriculture and Natural Resources for another
review of Director Gozon's order, in their appellants' brief in
this Court, they changed that relief and they now pray that
the second decision of the Court of Appeals, referring this
case to the Minister of Natural Resources for another review,
be declared void and that its first decision be affirmed.
In contrast, the private respondents, who did not appeal from
the second decision of the Court of Appeals, instead of
sustaining its holding that this case be referred to the
Minister of Natural Resources or instead of defending that
second decision, they being appellees, pray for the
affirmance of the trial court's judgment sustaining the
decisions of Director and Secretary Gozon.
The inconsistent positions of the parties, which were induced
by the contradictory decisions of the Court of Appeals,
constitute the peculiar twist of this case in this Court.
We hold that Secretary Gozon acted with grave abuse of
discretion in reviewing his decision as Director of Mines. The
palpably flagrant anomaly of a Secretary of Agriculture and
Natural Resources reviewing his own decision as Director of
Mines is a mockery of administrative justice. The Mining
Law, Commonwealth Act No. 13-i, provides:
SEC. 61. Conflicts and disputes arising out of mining
locations shall be submitted to the Director of Mines for
decision:
Provided, That the decision or order of the Director of Mines
may be appealed to the Secretary of Agriculture and Natural
Resources within thirty days from the date of its receipt.
In case any one of the parties should disagree from the
decision or order of the Director of Mines or of the Secretary
of Agriculture and Natural Resources, the matter may be
taken to the court of competent jurisdiction within thirty days
from the receipt of such decision or order; otherwise the said
decision or order shag be final and binding upon the parties
concerned. (As amended by Republic Act No. 746 approved
on June 18,1952).*
Undoubtedly, the provision of section 61 that the decision of
the Director of Mines may be appealed to the Secretary of
Agriculture and Natural Resources contemplates that the
Secretary should be a person different from the Director of
Mines.
In order that the review of the decision of a subordinate
officer might not turn out to be a farce the reviewing officer
must perforce be other than the officer whose decision is
under review; otherwise, there could be no different view or
there would be no real review of the case. The decision of
the reviewing officer would be a biased view; inevitably, it
would be the same view since being human, he would not
admit that he was mistaken in his first view of the case.
That is the obvious, elementary reason behind the
disqualification of a trial judge, who is promoted to the
appellate court, to sit in any case wherein his decision or
ruling is the subject of review (Sec. 1, Rule 137, Rules of
Court: secs. 9 and 27, Judiciary Law).
A sense of proportion and consideration for the fitness of
things should have deterred Secretary Gozon from reviewing
his own decision as Director of Mines. He should have asked
his undersecretary to undertake the review.
Petitioners-appellants were deprived of due process,
meaning fundamental fairness, when Secretary Gozon
reviewed his own decision as Director of Mines. (See Amos
Treat & Co. vs. Securities and Exchange Commission, 306
F. 2nd 260, 267.)
WHEREFORE, we set aside the order of the Secretary of
Agriculture and Natural Resources dated August 16, 1963 as
affirmed by the trial court as well as the first decision of the
Court of Appeals.
We affirm its second decision, returning the case to the
Minister of Natural Resources, with the directive that
petitioners' appeal to the Minister be resolved de novo with
the least delay as provided for in Presidential Decree No.
309, "establishing rules and procedures for the speedy
disposition or settlement of conflicting mining claims".
We reverse the second part of that second decision stating
that "thereafter, further proceedings will be taken in the trial
court". That portion is unwarranted because the trial court
does not retain any jurisdiction over the case once it is
remanded to the Minister of Natural Resources. No costs.
SO ORDERED.
SECOND DIVISION
[G.R. No. 122389. June 19, 1997]
MIGUEL SINGSON, petitioner, vs. NATIONAL LABOR
RELATIONS COMMISSION and PHILIPPINE AIRLINES,
INC. (PAL), respondents.
DECISION
PUNO, J.:
Assailed in the petition for certiorari before us is the
Resolution of the public respondent National Labor Relations
Commission[1] (hereinafter NLRC) reversing the Decision of
the Labor Arbiter[2] in NLRC-NCR Case No. 00-10-05750-91
finding the dismissal of petitioner Miguel Singson illegal and
ordering his reinstatement. Petitioner filed a motion for
reconsideration which was denied by the public respondent
in an Order dated June 27, 1995.
The antecedent facts reveal that petitioner Singson was
employed by private respondent Philippine Airlines, Inc.
(hereinafter PAL) as Traffic Representative Passenger,
Handling Division. His duty consisted of checking in
passengers and baggage for a particular flight. On June 7,
1991, petitioner was assigned to serve the check-in counter
of Japan Air Lines (hereinafter JAL) for Flight 742. Among
the passengers checked in by him was Ms. Lolita Kondo
who was bound for Narita, Japan. After checking in, Ms.
Kondo lodged a complaint alleging that petitioner required
her to pay US $200.00 for alleged excess baggage without
issuing any receipt. A confrontation took place where
petitioner was asked by the security officer to empty his
pockets. The dollars paid by Ms. Kondo were not found in
his possession. However, when the lower panel of the
check-in counter he was manning was searched, the sum of
two hundred sixty five dollars (US $265) was found therein
consisting of two (2) one hundred dollar bills, one (1) fifty
dollar bill, one (1) ten dollar bill and one (1) five dollar bill.
Petitioner was administratively charged and investigated by
a committee formed by private respondent PAL.[3]
In an affidavit presented to the investigators, Ms. Kondo
declared that she was with three (3) Japanese friends when
she checked in on June 7, 1991, for their flight to Narita,
Japan. While in line, a man approached her and told her that
she had excess baggage. She denied the allegation since
the pieces of baggage did not only belong to her but also to
her Japanese companions. The man did not believe that the
Japanese were her companions and he charged that she
just approached them at the airport. To settle the matter, he
told her to give him two hundred dollars (US $200) and he
apologized for their argument. She gave him one (1) one
hundred dollar bill and two (2) fifty dollar bills or a total of two
hundred dollars (US $200) as excess baggage fee. She
placed the money at the side of his counter desk and he
covered it with a piece of paper. He did not issue a receipt.
She then reported the matter to JAL's representative. Ms.
Kondo identified the employee who checked her in as the
petitioner.[4]
In his affidavit, petitioner admitted that he was the one who
checked in Ms. Kondo and her Japanese companions. They
checked in five (5) pieces of luggage which weighed 80 kilos
and within the allowed limit for check-in baggage. He
attached the claim checks to the jacket of their tickets,
returned the tickets and passport to Ms. Kondo. He then
heard an altercation involving a woman passenger with
excess hand-carried baggage who was being charged for it;
she was insisting she had paid for it in the counter but could
not produce a receipt. The passenger turned out to be Ms.
Kondo and she was accusing Cocoy Gabriel as the one who
charged her for excess baggage. Mr. Gabriel at that time
was assigned at the THAI Airways counter, hence, it was
impossible that a passenger for a JAL flight would pay him
US $200. Petitioner was talking to the JAL's representative
when two PAL employees and Ms. Kondo approached them.
He was told of Ms. Kondo's claim that she paid the excess
baggage fee to him. Petitioner was surprised at the
accusation since Ms. Kondo had no excess baggage when
she checked in.[5]
The investigation committee found petitioner guilty of the
offense charged and recommended his dismissal. Private
respondent PAL adopted the committee's recommendation
and dismissed him from the service effective June 7, 1991.
[6]
On September 12, 1991, petitioner lodged a complaint
against respondent PAL before the NLRC-NCR for illegal
dismissal, attorney's fees and damages. The case was
docketed as NLRC-NCR Case No. 00-10-05750-91 and
raffled off to then Labor Arbiter Raul T. Aquino. Aquino found
the evidence adduced by private respondent PAL in
terminating petitioner's employment insufficient. Aquino
declared petitioner's dismissal illegal and ordered his
reinstatement with backwages. Respondent PAL appealed
the decision of the Labor Arbiter. On May 19, 1995, the
Second Division of public respondent NLRC, composed of
Commissioners Victoriano R. Calaycay, Rogelio I. Rayala
and Raul T. Aquino as presiding commissioner, promulgated
its Resolution reversing the decision of then Labor Arbiter
Aquino and dismissing the complaint against respondent
PAL. Petitioner filed on June 5, 1995, a motion for the
reconsideration of the aforementioned Resolution and an
Amended Motion for Reconsideration on June 15, 1995.
Public respondent NLRC, thru the Second Division with only
two commissioners taking part, namely, Commissioners
Calaycay and Rayala, denied the motion.
Hence, this petition for certiorari under Rule 65 of the Rules
of Court where petitioner submits the following assignment
of errors:
"I. Public respondent NLRC acted with grave abuse of
discretion and/or in excess of jurisdiction when the Hon.
Raul T. Aquino, in his capacity as Presiding Commissioner of
the Second Division of the NLRC and as a member thereof,
participated actively in the promulgation of the aforesaid
decision and in the consultation of the members thereof in
reaching the conclusion before it was assigned to the
ponente, Hon. Calaycay.
"II. Public respondent NLRC gravely abused its discretion as
in fact it exceeded its jurisdiction when it declared the
affidavit of Lolita Kondo sufficient to declare his dismissal
from employment legal even without any cross-examination
during the investigation conducted by Philippine Air Lines.
"III. Public respondent NLRC seriously and gravely erred
amounting to abuse of discretion and/or in excess of its
jurisdiction when it declared in the assailed decision that the
quantum of evidence necessary to justify the supreme
penalty of dismissal of the petitioner have been complied
with, and in not imposing the burden of proving the legality of
the dismissal of the petitioner."
We find merit in this petition.
Petitioner assails the Resolution of the public respondent
NLRC on account of Commissioner Raul T. Aquino's
participation in reviewing and reversing on appeal his own
decision as labor arbiter in NLRC-NCR Case No. 00-10-
05750-91. Respondents contend that Commissioner
Aquino's failure to inhibit himself is a harmless error that will
not infirm the subject resolution. We do not agree. In the
case of Ang Tibay v. Court of Industrial Relations,[7] we laid
down the requisites of procedural due process in
administrative proceedings, to wit: (1) the right to a hearing,
which includes the right to present one's case and submit
evidence in support thereof; (2) the tribunal must consider
the evidence presented; (3) the decision must have
something to support itself; (4) the evidence must be
substantial; (5) the decision must be based on the evidence
presented at the hearing, or at least contained in the record
and disclosed to the parties affected; (6) the tribunal or body
or any of its judges must act on its own independent
consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate; (7) the Board or
body should, in all controversial questions, render its
decision in such manner that the parties to the proceeding
can know the various issues involved, and the reason for the
decision rendered. In addition, administrative due process
includes (a) the right to notice, be it actual or constructive, of
the institution of the proceedings that may affect a person's
legal right; (b) reasonable opportunity to appear and defend
his rights and to introduce witnesses and relevant evidence
in his favor; (c) a tribunal so constituted as to give him
reasonable assurance of honesty and impartiality, and one of
competent jurisdiction; and (d) a finding or decision by that
tribunal supported by substantial evidence presented at the
hearing or at least ascertained in the records or disclosed to
the parties.[8] It is self-evident from the ruling case law that
the officer who reviews a case on appeal should not be the
same person whose decision is the subject of review. Thus,
we have ruled that "the reviewing officer must perforce be
other than the officer whose decision is under review."[9]
In the case at bar, we hold that petitioner was denied due
process when Commissioner Aquino participated, as
presiding commissioner of the Second Division of the NLRC,
in reviewing private respondent PAL's appeal. He was
reviewing his own decision as a former labor arbiter. Under
Rule VII, Section 2 (b) of the New Rules of Procedure of the
NLRC,[10] each Division shall consist of one member from
the public sector who shall act as the Presiding
Commissioner and one member each from the workers and
employers sectors, respectively. The composition of the
Division guarantees equal representation and impartiality
among its members. Thus, litigants are entitled to a review of
three (3) commissioners who are impartial right from the
start of the process of review. Commissioner Aquino can
hardly be considered impartial since he was the arbiter who
decided the case under review. He should have inhibited
himself from any participation in this case.
Prescinding from this premise, the May 19, 1995 resolution
of the respondent NLRC is void for the Division that handed
it down was not composed of three impartial commissioners.
The infirmity of the resolution was not cured by the fact that
the motion for reconsideration of the petitioner was denied
by two commissioners and without the participation of
Commissioner Aquino. The right of petitioner to an impartial
review of his appeal starts from the time he filed his appeal.
He is not only entitled to an impartial tribunal in the
resolution of his motion for reconsideration. Moreover, his
right is to an impartial review of three commissioners. The
denial of petitioner's right to an impartial review of his appeal
is not an innocuous error. It negated his right to due process.
IN VIEW WHEREOF, the Resolution of the Second Division
of the NLRC dated May 19, 1995 and its Order dated June
27, 1995 in NLRC-NCR Case No. 00-10-05750-91 is SET
ASIDE. The case is remanded to the NLRC for further
proceedings. No Costs.
SO ORDERED.
SECOND DIVISION
[G.R. No. 159190. June 30, 2005]
CAYETANO A. TEJANO, JR., petitioner, vs. THE HON.
OMBUDSMAN and the HON. SANDIGANBAYAN,
respondents.
DECISION
CHICO-NAZARIO, J.:
This petition for certiorari under Rule 65 of the Rules of
Court, with application for temporary restraining order, seeks
to nullify the Ombudsmans disapproval of the
memorandum[1] dated 03 November 1999 of Special
Prosecutor Jesus A. Micael of the Office of the Special
Prosecutor recommending the dismissal of Criminal Case
No. 21654, as well as the memorandum[2] dated 09 June
2003 denying petitioners motion for reconsideration.
The Facts
The instant petition stemmed from the report of Philippine
National Bank (PNB) Resident Auditor Alexander A. Tan,
dated 15 October 1992, on his investigation regarding an
alleged unfunded withdrawal in the amount of P2.2 million by
V&G Better Homes Subdivision (V&G) under Savings
Account No. 365-5355-6-4.
The report, as summarized by Special Prosecution Officer III
Jesus A. Micael, is as follows:[3]
. . . [I]n the morning of 17 July 1992, Emilio P. Montesa
(Bank Executive Officer of PNB Cebu) handed a note to
Jane Rita Jecong (Cashier) instructing her to include her
cash requisition for the day from Central Bank Cebu, the
amount of P2.2 M at P1,000.00 denomination; that on 20
July 1992 at about past 10:00 A.M., Juanito Mata (Cashier
III), upon the instruction of Cayetano A. Tejano Jr. (Vice
President and Branch Manager of PNB Cebu), took the P2.2
M from Ms. Jecong and delivered the same to Mr. Tejano;
that at about noontime of same day, Mr. Mara handed to Ms.
Jecong a pre-signed withdrawal slip against SA No. 365-
535506-4 under the name of V & G Better Homes for the
same amount to replace the cash withdrawn and to serve as
cash-on-hand at the end of the days transaction; that the
withdrawal slip was approved by Mr. Tejano and was
postdated 21 July 1992; that as of 20 July 1992 V & G Better
Homes SA No. 365-535506-4 has only P33,436.78; that in
the afternoon of 20 July 1992 the amount of P2,336,563.32
(consisting of P2,200,000.00 in cash; P100,000.00 in check;
and P36,563.22 in withdrawal slip) was received by Teller
Mary Ann Aznar as payment for the loan of V & G Better
Homes for which PNB Official Receipt No. 952981E was
issued; that the transaction was recognized as an increase
in PNB Cebu Branchs cash-on-hand and a decrease in the
loan account of V & G Better Homes; that the PNB Cebu
Credit Committee approved the loan at the rate of 23% lower
than the 26% interest rate on its first renewal and 27% on its
second renewal; that the loan proceeds was credited to the
account of V & G Better Homes on 21 July 1992, the same
day that the withdrawal slip of P2.2 M was taken by Mr.
Montesa from Ms. Jecong and given to Irene Abellanosa to
be taken as her transaction for the day; and that upon the
instruction of Montesa, Savings Account No. 365-535506-4
of V & G Better Homes was debited and the withdrawal slip
was validated by Teller Abellanosa although no actual cash
withdrawal was made.
The report of Resident Auditor Alexander A. Tan implicated
Vice President Cayetano A. Tejano, Jr., the petitioner herein,
Executive Officer Emilio Montesa, and Supervising Branch
Teller Jane Rita Jecong, all of the PNB, Cebu City Branch,
including Juana dela Cruz and Vicente dela Cruz of V&G, as
persons involved in the irregular withdrawal of P2.2 million of
PNB funds.
In an order dated 22 December 1992, the Office of the
Deputy Ombudsman for the Visayas ordered Tejano,
Montesa, Jecong, Juana dela Cruz and Vicente dela Cruz to
file their respective counter-affidavits.[4]
In a resolution dated 29 March 1993, Graft Investigation
Officer Edgardo G. Canton recommended the filing of the
proper information for violation of Section 3(e) of Republic
Act No. 3019,[5] as amended, against petitioner Cayetano A.
Tejano, Jr., Juana dela Cruz and Vicente dela Cruz of V&G.
[6] The case against Montesa and Jecong was dismissed for
lack of evidence. The resolution was approved by Deputy
Ombudsman for Visayas Arturo C. Mojica and then
Ombudsman Conrado M. Vasquez.
The resolution was thereafter referred for review to Special
Prosecutor III Orlando I. Ines of the Office of the Special
Prosecutor.
In a Memorandum[7] dated 25 October 1994, Ines affirmed
the resolution of Graft Investigation Officer Edgardo G.
Canton.
On 28 October 1994, Deputy Special Prosecutor Jose De G.
Ferrer recommended the approval of the memorandum of
Special Prosecution Officer Ines.
On 08 November 1994, Aniano A. Desierto, then the Special
Prosecutor, concurred in the approval of Ferrer.[8]
Ombudsman Conrado M. Vasquez concurred thereto on 11
November 1994.
Subsequently, on 24 November 1994, an Information for
violation of Section 3(e) of Rep. Act No. 3019, as amended,
was filed before the Sandiganbayan, and docketed as
Criminal Case No. 21654.
On 08 December 1994, petitioner filed with the
Sandiganbayan an Urgent Motion for a Period of Time to File
Motion for Reinvestigation.
In an order dated[9] 12 December 1994, the Sandiganbayan
granted the motion for reinvestigation.
On 22 December 1994, petitioner filed his motion for
reinvestigation in the Office of the Special Prosecutor.
On 20 April 1995, the Sandiganbayan ordered the Office of
the Special Prosecutor to conduct the reinvestigation.[10]
The reinvestigation was assigned to Special Prosecution
Officer III Jesus Micael.
Convinced that no probable cause existed to indict petitioner
Tejano, and spouses Juana and Vicente dela Cruz, Special
Prosecutor Micael, in a memorandum[11] dated 03
November 1999, recommended the dismissal of the case.
The recommendation was approved by Deputy Special
Prosecutor Robert E. Kallos and concurred in by Special
Prosecutor Leonardo P. Tamayo.
On 10 December 1999, Ombudsman Aniano A. Desierto,
who earlier participated in the initial preliminary investigation
as Special Prosecutor, disapproved the recommendation for
the dismissal of the case with the marginal note assign the
case to another prosecutor to prosecute the case
aggressively.
On 02 February 2000, Special Prosecutor Micael filed a
Manifestation, to which was attached a copy of his
memorandum, informing the Sandiganbayan of the
disapproval by Ombudsman Desierto of his recommendation
to dismiss the case.
On 10 February 2000, petitioner filed a Motion for
Reconsideration of the disapproval by Ombudsman Desierto
of the recommendation of Micael.
Apparently, petitioners motion for reconsideration was not
resolved on the merits because on 27 June 2000, Special
Prosecution Officer III Joselito R. Ferrer filed a Motion to Set
the Case for Arraignment alleging therein that the
prosecution did not give due course to the motion for
reconsideration on the ground that it was the second motion
which is prohibited under the Ombudsman Act of 1989. He
added that the results of the reinvestigation were already
submitted to the respondent court before receiving the
motion for reconsideration.[12]
Petitioner manifested before the Sandiganbayan the Office
of the Special Prosecutors failure to resolve his motion for
reconsideration. Thus, in a resolution[13] dated 24 March
2003, the respondent court directed the Office of the
Ombudsman to resolve the said motion.
In a memorandum[14] dated 09 June 2003, Special
Prosecutor Joselito R. Ferrer recommended the denial of the
motion for reconsideration filed by petitioner. Deputy Special
Prosecutor Robert E. Kallos changed his previous position
and recommended that the memorandum for the dismissal
of the motion for reconsideration be approved, with Special
Prosecutor Dennis M. Villa-Ignacio concurring in the denial.
On 14 July 2003, Ombudsman Simeon V. Marcelo, who
succeeded Ombudsman Desierto when he retired, approved
Joselito Ferrers memorandum recommending the denial of
the motion for reconsideration.
Petitioner thus filed the instant petition with prayer for the
issuance of a temporary restraining order to enjoin the
Sandiganbayan from taking further action in Criminal Case
No. 21654.
On 25 August 2003, the First Division of this Court issued
the temporary restraining order prayed for.
On 28 July 2004, the instant petition was transferred to the
Second Division of this Court.
Issues
Petitioner raises the following issues:
I champion of the people and the preserver of the integrity of
WHETHER OR NOT RESPONDENT OFFICE OF THE
OMBUDSMAN COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT DISAPPROVED THE EARLIER
RECOMMENDATION FOR THE DISMISSAL OF THE CASE
AGAINST ALL THE ACCUSED WITHOUT ANY COGENT
OR VERIFIABLE REASON AMOUNTING TO LACK OF
JURISDICTION WHEN THEY:
1. THE OFFICE OF THE OMBUDSMAN ABUSED ITS
DISCRETION IN THE DISAPPROVAL OF THE
RESOLUTION DATED NOVEMBER 3, 1999 AGAINST ALL
ACCUSED FOR LACK OF PROBABLE CAUSE AS
MANDATED UNDER SECTION 13 R.A. 6770 IN RELATION
TO SECTION 3, RULE 112 OF THE RULES ON CRIMINAL
PROCEDURE.
2. THE OFFICE OF SPECIAL PROCECUTOR DID NOT
DETERMINE THE EXISTENCE OF PROBABLE CAUSE IN
A RESOLUTION DENYING PETITIONERS MOTION FOR
RECONSIDERATION FOR APPROVAL BY THE NEW
OMBUDSMAN.
II
WHETHER OR NOT THE CASE FILED AGAINST THE
ACCUSED IS A CLEAR CASE OF PERSECUTION AND
NOT PROSECUTION CONTEMPLATED UNDER R.A. 3019,
AS AMENDED, OTHERWISE KNOWN AS THE ANTI-
GRAFT AND CORRUPT PRACTICES ACT, REPUBLIC ACT
NO. 1374 AND CHAPTER II, SECTION 2, TITLE VII, BOOK
II OF THE REVISED PENAL CODE.
III
WHETHER OR NOT THE HONORABLE OMBUDSMAN
HAS JURISDICTION OVER THE CASE.
Ruling of the Court
Quite apart from the above, we find a focal issue apparently
glossed over by the parties - whether or not Ombudsman
Desierto committed grave abuse of discretion in
disapproving the 03 November 1999 memorandum of
Special Prosecutor Jesus Micael recommending the
dismissal of Criminal Case No. 21654 against petitioner
Tejano, and spouses Juana and Vicente dela Cruz of V&G
for violation of Section 3(e) of Rep. Act No. 3019, where he
had earlier participated in the preliminary investigation of the
said criminal case recommending the filing of the
information.
This Court has been consistent in holding that it will not
interfere with the Ombudsmans exercise of his
constitutionally mandated investigatory and prosecutory
powers, and respect the initiative and independence inherent
in the Ombudsman who beholden to no one, acts as the
public service.[15] Such discretionary power of the
Ombudsman is beyond the domain of this Court to review,
save in cases where there is clear showing of grave abuse
of discretion amounting to lack or excess of jurisdiction of the
latter.
Grave abuse of discretion is such capricious and whimsical
exercise of judgment on the part of the public officer
concerned which is equivalent to an excess or lack of
jurisdiction. The abuse of discretion must be so patent and
gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an
arbitrary and despotic manner by reason of passion or
hostility.[16]
Ombudsman Desierto, in this case, committed grave abuse
of discretion. Petitioner attributes partiality on the part of
Ombudsman Desierto for having participated in the
reinvestigation of the instant case despite the fact that he
earlier participated in the initial preliminary investigation of
the same when he was a Special Prosecutor by concurring
in the recommendation for the filing of the information before
the Sandiganbayan.
We agree with the petitioner. Steadfastly, we have ruled that
the officer who reviews a case on appeal should not be the
same person whose decision is under review. [17] In
Zambales Chromite Mining Company v. Court of Appeals,
[18] the decision of the Secretary of Agriculture and Natural
Resources was set aside by this Court after it had been
established that the case concerned an appeal of the
Secretarys own previous decision, which he handed down
while he was yet the incumbent Director of Mines. We have
equally declared void a decision rendered by the Second
Division of the National Labor Relations Commission,
because one of its members, Commissioner Raul Aquino,
participated in the review of the case which he had earlier
decided on as a former labor arbiter.[19] Likewise, this Court
struck down a decision of Presidential Executive Assistance
Jacobo Clave over a resolution of the Civil Service
Commission, in which he, then concurrently its Chairman,
had earlier concurred.[20]
Having participated in the initial preliminary investigation of
the instant case and having recommended the filing of an
appropriate information, it behooved Ombudsman Desierto
to recuse himself from participating in the review of the same
during the reinvestigation. He should have delegated the
review to his Deputies pursuant to Section 15 of Rep. Act
No. 6770, which provides:
Sec. 15. Powers, Functions and Duties. The Office of the
Ombudsman shall have the following powers, functions and
duties:
...
(10) Delegate to the Deputies, or its investigators or
representatives such authority or duty as shall ensure the
effective exercise or performance of the powers, functions
and duties herein or hereinafter provided; . . .
In earlier recommending the filing of information, then
Special Prosecutor Desierto was already convinced, from
that moment, that probable cause exists to indict the
accused. It becomes a farfetched possibility that in a
subsequent review of the same, Ombudsman Desierto
would make a turnabout and take a position contradictory to
his earlier finding.
Due process dictates that one called upon to resolve a
dispute may not review his decision on appeal.[21] We take
our bearings from Zambales Chromite Mining Co. v. Court of
Appeals[22] which succinctly explained that:
In order that the review of the decision of a subordinate
officer might not turn out to be farce, the reviewing officer
must perforce be other than the officer whose decision is
under review; otherwise, there could be no different view or
there would be no real review of the case. The decision of
the reviewing officer would be a biased view; inevitably, it
would be the same view since being human, he would not
admit that he was mistaken in his first view of the case.
Cojuangco, Jr. v. Presidential Commission on Good
Government[23] concedes the applicability of the prohibition
on the reviewing officer to handle a case he earlier decided,
thus:
Where the circumstances do not inspire confidence in the
objectivity and impartiality of the judge, such judge should
inhibit voluntarily or if he refuses, he should be prohibited
from handling the case. A judge must not only be impartial
but must also appear impartial as an assurance to the
parties that his decision will be just. His actuation must
inspire that belief. This is an instance when appearance is as
important as reality.
The same rule of thumb should apply to an investigating
officer conducting a preliminary investigation. This is the
reason why under Section 1679 of the former Revised
Administrative Code, the Secretary of Justice, who has
supervision over the prosecution arm of the government, is
given ample power to designate another prosecutor to
handle the investigation and prosecution of a case when the
prosecutor handling the same is otherwise disqualified by
personal interest, or is unable or fails to perform his duty.
(Underlining supplied)
The fact that the motion for reconsideration of Ombudsman
Desiertos disapproval of the 03 November 1999
memorandum of Special Prosecutor Jesus Micael
recommending the dismissal of Criminal Case No. 21654
was denied by another reviewing officer, Ombudsman
Marcelo, does not cure the infirmity of Ombudsman
Desiertos actuation. As stressed in Singson v. NLRC:[24]
. . . The infirmity of the resolution was not cured by the fact
that the motion for reconsideration of the petitioner was
denied by two commissioners and without the participation of
Commissioner Aquino. The right of petitioner to an impartial
review of his appeal starts from the time he filed his appeal.
He is not only entitled to an impartial tribunal in the
resolution of his motion for reconsideration. Moreover, his
right is to an impartial review of three commissioners. The
denial of petitioners right to an impartial review of his appeal
is not an innocuous error. It negated his right to due process.
(Underlining supplied)
With the foregoing conclusion, we deem it unnecessary to
discuss the other issues raised by petitioner.
WHEREFORE, the Ombudsmans disapproval of the
memorandum dated 03 November 1999, where Prosecutor
Jesus A. Micael of the Office of the Special Prosecutor
recommended the dismissal of Criminal Case No. 21654, as
well as the memorandum dated 09 June 2003, which denied
petitioners motion for reconsideration, are SET ASIDE. The
case is remanded to the Office of the Ombudsman for further
proceedings. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 173277 February 25, 2015
OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
PRUDENCIO C. QUIMBO, COURT OF APPEALS, 20TH
DIVISION, CEBU CITY, Respondents.
DECISION
MENDOZA, J.:
This petition for certiorari under Rule 65 of the Rules of
Court assails the May 2, 2006 Resolution1 of the Court of
Appeals (CA), in CA-G.R. SP No. 54737, which denied the
motion for intervention and reconsideration of its January 21,
2005 Decision,2 filed by petitioner Office of the Ombudsman
(Ombudsman).
The Antecedents
The present controversy stemmed from the administrative
complaint lodged by Gilda D. Daradal (Daradal), a clerk in
the Provincial Engineering Office of Catbalogan, Samar,
against private respondent Engr. Prudencio C. Quimbo
(Quimbo), Provincial Engineer of Samar, with the Office of
the Ombudsman-Visayas (Ombudsman-Visayas) for Sexual
Harassment and Oppression, docketed as OMB-VIS-ADM-
96-04846.
In her complaint, Daradal alleged that on July 19, 1996, at
about 10:00 oclock in the morning at the Motor Pool Division
of the Provincial Engineering Department, Catbalogan,
Samar, Quimbo asked her to massage his forehead and
nape. In the course thereof, he said, "You had been lying to
me you have already seen my manhood. When shall I have
to see yours?" She was appalled as the utterance was made
in the presence of her co-employees. She added that by
virtue of a Memorandum,3 dated August 6, 1996, Quimbo
ordered her detail to the Civil Service Commission in
Catbalogan, Samar, to perform the tasks of a male utility
personnel. Her name was removed from the payroll of the
personnel of the Provincial Engineering Office from August
16-31,1996 because of her refusal to submit to his sexual
advances.
In his defense, Quimbo retorted that the charge instituted
against him was fictitious. He claimed that Daradal enjoyed a
"very important person" (VIP) treatment for a long period of
time and, when required to work, rebelled against him. He
asserted that the charge of sexual harassment and
oppression was intended to embarrass and ridicule him and
that the discretion to order her detail was validly exercised.
On March 26, 1996, Daradal filed a motion for withdrawal of
the complaint. The motion, however, was denied by the
Ombudsman-Visayas in its Order, dated August 11, 1998.
The Ombudsman-Visayas Ruling
On December 9, 1998, after due proceedings, the
Ombudsman Visayas issued a resolution4 dismissing the
case of sexual harassment against Quimbo but finding him
guilty of oppression. The Ombudsman- Visayas imposed the
penalty of suspension for six (6) months without pay.
The dispositive portion of the said resolution reads:
WHEREFORE, in the light of all the foregoing, this Office
finds Prudencio C. Quimbo, guilty of Oppression, thus mete
upon him, the penalty of SUSPENSION for SIX (6) MONTHS
without pay, in accordance with Memorandum Circular No.
30, Series of 1989 of the Civil Service Commission.
SO RESOLVED.5
Engr. Quimbo moved for reconsideration but his motion was
denied by the Ombudsman-Visayas in its Order,6 dated April
15, 1999.
The CA Ruling
Aggrieved, Quimbo elevated the case before the CA by way
of a petition for review under Rule 43 of the Rules of Court.
The case, entitled "Prudencio C. Quimbo vs. Gilda D.
Daradal," was docketed as CA-G.R. SP No. 54737.
On January 21, 2005, the CA reversed the December 9,
1998 Resolution and the April 15, 1999 Order of the
Ombudsman-Visayas. In reversing the said ruling, the CA
ratiocinated:
The Office of the Ombudsman has no power to directly
impose sanctions against government officials and
employees who are subject of its investigation as its power is
only limited to recommend the appropriate sanctions but not
directly to impose the same.
In Tapiador vs. Office of the Ombudsman, the Supreme
Court pronounced:
"x x x
Besides, assuming arguendo, that petitioner were
(sic)administratively liable, the Ombudsman has no authority
to directly dismiss the petitioner from the government
service, more particularly from his position in the BID. Under
Section 13, subparagraph (3) of Article XI of the 1987
Constitution, the Ombudsman can only "recommend" the
removal of the public official or employee found to be at fault,
to the public official concerned.
x x x"
There is no gainsaying the fact that the Office of the
Ombudsman is vested with the jurisdiction to take
cognizance of cases for the purpose of ascertaining whether
or not public servants have committed administrative
offenses. However, their power is only to recommend to the
disciplining authority the appropriate penalty to be meted out
and it is best left to the proper disciplining authority to
impose such penalty, which in this case is the Office of the
Governor of the Province of Samar.7
Accordingly, the fallo of the January 21, 2005 Decision
reads:
WHEREFORE, in view of the foregoing premises, judgment
is hereby rendered by us GRANTING the petition filed in this
case and SETTING ASIDE the Resolution dated December
9, 1998 and the Order dated April 15, 1999 issued by the
Office of the Ombudsman in OMB-VIS-ADM-96-0486 in so
far as it directly imposes upon the petitioner the penalty of
suspension from the service.
IT IS SO ORDERED.8
On February 14, 2005, the Ombudsman filed an omnibus
motion for intervention and reconsideration of the CA
decision, dated January 21, 2005.
In its Resolution,9 dated May 2, 2006, the CA denied the
said motion. In so doing, the CA explained:
For one, we have noted that the person adversely affected
by our ruling in SP No. 54737 is respondent Gilda D.
Daradal who opted not to file a motion for reconsideration
thereof. Basic is the rule that "every action must be
prosecuted or defended in the name of the real party in
interest."
x x x x.
For another, as a quasi-judicial body, the office of the
Ombudsman can be likened to a judge who should detach
himself from cases where his decision is appealed to a
higher court for review.
In filing a motion for intervention and reconsideration, the
Ombudsman dangerously departed from its role as
adjudicator and became an advocate. Its mandated function
is to hear, investigate and decide administrative and
appropriate criminal cases against public official[s] or
employee[s] instituted by or brought before it directly, and
not to litigate. Therefore, we rule that the Office of the
Ombudsman has no legal standing to intervene in the case
at bench.
xxxx
Not in conformity with the pronouncement of the CA, the
Ombudsman instituted a petition for certiorari under Rule 65
of the Rules of Court alleging grave abuse of discretion
amounting to lack of or in excess of jurisdiction on the part of
the CA. It posited that there was no appeal or any plain,
speedy and adequate remedy in the ordinary course of law
to challenge the validity of the assailed CA Resolution, dated
May 2, 2005. Thus, it was constrained to resort to the filing
of the said petition.
The Ombudsmans Position
In its Memorandum,10 the Ombudsman stressed that, as the
champion of the people, it had the right and legal interest to
seek redress on the apparent erroneous reversal by the CA
of its decision in an administrative disciplinary case. It
insisted that, as the disciplining authority, it has the power
and prerogative to directly impose any administrative
penalty. It asserted that the obiter dictum in the case of
Tapiador v. Office of the Ombudsma (Tapiador)11 heavily
relied upon by the CA, to declare its disciplinary powers as
merely recommendatory had been rejected by the Court in
numerous cases.
Respondent Quimbos Position
In his Memorandum,12 Quimbo contended that the
Ombudsman had no legal standing to intervene or to seek
reconsideration of the assailed CA decision because the real
party in interest was Daradal. He further stated that the
assailed CA decision was based on prevailing jurisprudence
at the time the said decision was rendered.
ISSUES
Based on the parties respective contentions, the issues for
this Courts resolution are as follows:
I. Whether the CA gravely abused its discretion in declaring
that the Ombudsman lacks the power to directly impose
administrative penalties against erring public officials or
employees.
II. Whether the CA gravely abused its discretion in denying
the Ombudsmans plea to validly intervene in its proceedings
for lack of legal interest.
The Courts Ruling
The Court grants the Ombudsmans petition.
Preliminary matters
The Ombudsman has the power
to directly impose
administrative penalties against
public officials or employees.
In the case of Ombudsman v. Apolonio,13 the Court
categorically delineated the Ombudsmans power to directly
impose, not merely recommend, administrative sanctions
against erring public officials or employees, viz:
The Ombudsman has the power to impose the penalty of
removal, suspension, demotion, fine, censure, or
prosecution of a public officer or employee, in the exercise of
its administrative disciplinary authority. The challenge to the
Ombudsmans power to impose these penalties, on the
allegation that the Constitution only grants it
recommendatory powers, had already been rejected by this
Court.
The Court first rejected this interpretation in Ledesma v.
Court of Appeals, where the Court, speaking through Mme.
Justice Ynares-Santiago, held:
The creation of the Office of the Ombudsman is a unique
feature of the 1987 Constitution. The Ombudsman and his
deputies, as protectors of the people, are mandated to act
promptly on complaints filed in any form or manner against
officers or employees of the Government, or of any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations. Foremost
among its powers is the authority to investigate and
prosecute cases involving public officers and employees,
thus:
Section 13. The Office of the Ombudsman shall have the
following powers, functions, and duties: (1) Investigate on its
own, or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act
or omission appears to be illegal, unjust, improper, or
inefficient.
Republic Act No. 6770, otherwise known as The
Ombudsman Act of 1989, was passed into law on November
17, 1989 and provided for the structural and functional
organization of the Office of the Ombudsman. RA 6770
mandated the Ombudsman and his deputies not only to act
promptly on complaints but also to enforce the
administrative, civil and criminal liability of government
officers and employees in every case where the evidence
warrants to promote efficient service by the Government to
the people.
The authority of the Ombudsman to conduct administrative
investigations as in the present case is settled. Section 19 of
RA 6770 provides:
SEC. 19. Administrative Complaints. The Ombudsman
shall act on all complaints relating, but not limited to acts or
omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agencys
functions, though in accordance with law;
(4) Proceed from a mistake of law or an arbitrary
ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an
improper purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.
The point of contention is the binding power of any decision
or order that emanates from the Office of the Ombudsman
after it has conducted its investigation. Under Section 13(3)
of Article XI of the 1987 Constitution, it is provided:
Section 13. The Office of the Ombudsman shall have the
following powers, functions, and duties: x x x x
(3) Direct the officer concerned to take appropriate action
against a public official or employee at fault, and recommend
his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith. (Emphasis,
underscoring and italization in the original.)
In Ledesma v. Court of Appeals (Ledesma),14 the Court
definitively stated that the statement in Tapiador regarding
the Ombudsmans power was merely an obiter dictum and,
as such, could not be cited as a doctrinal pronouncement.
Thus:
x x x [A] cursory reading of Tapiador reveals that the main
point of the case was the failure of the complainant therein to
present substantial evidence to prove the charges of the
administrative case. The statement that made reference to
the power of the Ombudsman is, at best, merely an obiter
dictum and, as it is unsupported by sufficient explanation, is
susceptible to varying interpretations, as what precisely is
before us in this case. Hence, it cannot be cited as a
doctrinal declaration of this Court nor is it safe from judicial
examination.
The import of the Ledesma ruling is crystal clear. Although
the tenor of the text in Section 13(3), Article XI15 of the
Constitution merely indicates a "recommendatory" function,
this does not divest Congress of its plenary legislative power
to vest the Ombudsman powers beyond those stated in the
Constitutional provision. Pursuant to Republic Act (R.A.)No.
6770, otherwise known as The Ombudsman Act of 1989, the
Ombudsman is legally authorized to directly impose
administrative penalties against errant public servants.
Further, the manifest intent of the lawmakers was to bestow
on the Ombudsman full administrative disciplinary authority
in accord with the constitutional deliberations. Unlike the
Ombudsman-like agencies of the past, the powers of which
extend to no more than making findings of fact and
recommendations, and the Ombudsman or Tanodbayan
under the 1973 Constitution who might file and prosecute
criminal, civil or administrative cases against public officials
and employees only in cases of failure of justice, the current
Ombudsman, under the 1987 Constitution and R.A. No.
6770, is intended to play a more active role in the
enforcement of laws on anti-graft and corrupt practices and
other offenses committed by public officers and employees.
The Ombudsman is to be an "activist watchman," not merely
a passive one. He is vested with broad powers to enable him
to implement his own actions.16
The Ombudsman has the legal
interest to intervene in the
proceedings before the CA.
The issue of whether or not the Ombudsman possesses the
requisite legal interest to intervene in the proceedings where
its decision is at risk of being inappropriately impaired has
been laid to rest in Ombudsman v. De Chavez.17 In the said
case, the Court conclusively ruled that even if the
Ombudsman was not impleaded as a party in the
proceedings, part of its broad powers include defending its
decisions before the CA. And pursuant to Section 1 of Rule
19 of the Rules of Court,18 the Ombudsman may validly
intervene in the said proceedings as its legal interest on the
matter is beyond cavil. The Court elucidated, thus:
x x x the Ombudsman is in a league of its own. It is different
from other investigatory and prosecutory agencies of the
government because the people under its jurisdiction are
public officials who, through pressure and influence, can
quash, delay or dismiss investigations directed against them.
Its function is critical because public interest (in the
accountability of public officers and employees) is at stake.
xxx
The Office of the Ombudsman sufficiently alleged its legal
interest in the subject matter of litigation.1wphi1 Paragraph
2 of its motion for intervention and to admit the attached
motion to recall writ of preliminary injunction averred:
"2. As a competent disciplining body, the Ombudsman has
the right to seek redress on the apparently erroneous
issuance by this Honorable Court of the Writ of Preliminary
Injunction enjoining the implementation of the Ombudsman's
Joint Decision x x x x."

In asserting that it was a "competent disciplining body," the
Office of the Ombudsman correctly summed up its legal
interest in the matter in controversy. In support of its claim, it
invoked its role as a constitutionally mandated "protector of
the people," a disciplinary authority vested with quasi-judicial
function to resolve administrative disciplinary cases against
public officials. To hold otherwise would have been
tantamount to abdicating its salutary functions as the
guardian of public trust and accountability.
Moreover, the Office of the Ombudsman had a clear legal
interest in the inquiry into whether respondent committed
acts constituting grave misconduct, an offense punishable
under the Uniform Rules in Administrative Cases in the Civil
Service. It was in keeping with its duty to act as a champion
of the people and preserve the integrity of public service that
petitioner had to be given the opportunity to act fully within
the parameters of its authority.
It is true that under our rule on intervention, the allowance or
disallowance of a motion to intervene is left to the sound
discretion of the court after a consideration of the
appropriate circumstances. However, such discretion is not
without limitations. One of the limits in the exercise of such
discretion is that it must not be exercised in disregard of law
and the Constitution. The CA should have considered the
nature of the Ombudsman's powers as provided in the
Constitution and RA 6770.
xxxx
Both the CA and respondent likened the Office of the
Ombudsman to a judge whose decision was in question.
This was a tad too simplistic (or perhaps even rather
disdainful) of the power, duties and functions of the Office of
the Ombudsman. The Office of the Ombudsman cannot be
detached, disinterested and neutral specially when
defending its decisions. Moreover, in administrative cases
against government personnel, the offense is committed
against the government and public interest. What further
proof of a direct constitutional and legal interest in the
accountability of public officers is necessary? (Italics
supplied. Citations omitted.)
As can be gleaned from the foregoing disquisition, the CA, in
the present case, gravely erred in disallowing the
Ombudsmans motion to intervene. It failed to consider the
essence of the Ombudsmans constitutionally and statutorily
conferred powers establishing its clear legal interest in
ensuring that its directive be implemented.
Substantive Aspect
Significantly, Section A, Subsection 13 of Civil Service
Commission Memorandum Circular No. 30, series of 1989
(CSC MC No. 30), the applicable rule then, expressly
provides:
A. Grave Offenses
xxxx
13. Oppression
1st Offense - Suspension for six (6) months and one (1) day
to one (1) year;
2nd Offense - Dismissal.
In the present case, the Ombudsman found Quimbo
administratively liable for the grave offense of Oppression
and correspondingly meted out a penalty of suspension for
six ( 6) months without pay. While his administrative liability
for Oppression is undisputed, it behooves the Court to adjust
the penalty imposed upon him to conform to CSC MC No.
30. Accordingly, the Court finds it necessary to modify the
penalty to suspension for six ( 6) months and one ( 1) day
without pay to accurately reflect the classification of the
offense for which he was found liable. WHEREFORE, the
petition is GRANTED. The January 21, 2005 Decision and
the May 2, 2006 Resolution of the Court of Appeals, Cebu
City in CA-G.R. SP No. 54737 are hereby NULLIFIED and
SET ASIDE. The December 9, 1998 Resolution and the April
15, 1999 Order of the Office of the Ombudsman, in OMB-
VIS-ADM-96-0486, are hereby REINSTATED with
MODIFICATION that the penalty of SUSPENSION to be
imposed upon Prudencio C. Quimbo be for SIX (6) MONTHS
and ONE (1) DAY without pay.
SO ORDERED.
EN BANC
G.R. No. 159110, December 10, 2013
VALENTINO L. LEGASPI, Petitioner, v. CITY OF CEBU, T.C.
(TITO) SAYSON AND RICARDO HAPITAN, Respondents.
[G.R. No. 159692]
BIENVENIDO P. JABAN, SR., AND BIENVENIDO
DOUGLAS LUKE BRADBURY JABAN, Petitioners, v.
COURT OF APPEALS, CITY OF CEBU, CITY MAYOR
ALVIN GARCIA, SANGGUNIANG PANLUNSOD OF CITY
OF CEBU, HON. RENATO V. OSMEA, AS PRESIDING
OFFICER OF THE SANGGUNIANG PANLUNSOD, AND
CITOM CHAIRMAN ALAN GAVIOLA, AS CITOM CHIEF,
CITOM TRAFFIC ENFORCER E. A. ROMERO, AND LITO
GILBUENA, Respondents.
DECISION
BERSAMIN, J.:
The goal of the decentralization of powers to the local
government units (LGUs) is to ensure the enjoyment by each
of the territorial and political subdivisions of the State of a
genuine and meaningful local autonomy. To attain the goal,
the National Legislature has devolved the three great
inherent powers of the State to the LGUs. Each political
subdivision is thereby vested with such powers subject to
constitutional and statutory limitations.
In particular, the Local Government Code (LGC) has
expressly empowered the LGUs to enact and adopt
ordinances to regulate vehicular traffic and to prohibit illegal
parking within their jurisdictions. Now challenged before the
Court are the constitutionality and validity of one such
ordinance on the ground that the ordinance constituted a
contravention of the guaranty of due process under the
Constitution by authorizing the immobilization of offending
vehicles through the clamping of tires. The challenge
originated in the Regional Trial Court (RTC) at the instance
of the petitioners vehicle owners who had borne the brunt
of the implementation of the ordinance with the RTC
declaring the ordinance unconstitutional, but it has now
reached the Court as a consolidated appeal taken in due
course by the petitioners after the Court of Appeals (CA)
reversed the judgment of the RTC.
Antecedents
On January 27, 1997 the Sangguniang Panlungsod of the
City of Cebu enacted Ordinance No. 1664 to authorize the
traffic enforcers of Cebu City to immobilize any motor vehicle
violating the parking restrictions and prohibitions defined in
Ordinance No. 801 (Traffic Code of Cebu City).1 The
pertinent provisions of Ordinance No. 1664
read:chanRoblesvirtualLawlibrary
Section 1. POLICY It is the policy of the government of the
City of Cebu to immobilize any motor vehicle violating any
provision of any City Ordinance on Parking Prohibitions or
Restrictions, more particularly Ordinance No. 801, otherwise
known as the Traffic Code of Cebu City, as amended, in
order to have a smooth flow of vehicular traffic in all the
streets in the City of Cebu at all times.
Section 2. IMMOBILIZATION OF VEHICLES Any vehicle
found violating any provision of any existing ordinance of the
City of Cebu which prohibits, regulates or restricts the
parking of vehicles shall be immobilized by clamping any tire
of the said violating vehicle with the use of a denver boot
vehicle immobilizer or any other special gadget designed to
immobilize motor vehicles. For this particular purpose, any
traffic enforcer of the City (regular PNP Personnel or Cebu
City Traffic Law Enforcement Personnel) is hereby
authorized to immobilize any violating vehicle as
hereinabove provided.
Section 3. PENALTIES Any motor vehicle, owner or driver
violating any ordinance on parking prohibitions, regulations
and/or restrictions, as may be provided under Ordinance No.
801, as amended, or any other existing ordinance, shall be
penalized in accordance with the penalties imposed in the
ordinance so violated, provided that the vehicle immobilizer
may not be removed or released without its owner or driver
paying first to the City Treasurer of Cebu City through the
Traffic Violations Bureau (TVB) all the accumulated penalties
for all prior traffic law violations that remain unpaid or
unsettled, plus the administrative penalty of Five Hundred
Pesos (P500.00) for the immobilization of the said vehicle,
and receipts of such payments presented to the concerned
personnel of the bureau responsible for the release of the
immobilized vehicle, unless otherwise ordered released by
any of the following officers:chanRoblesvirtualLawlibrary
a) Chairman, CITOM
b) Chairman, Committee on Police, Fire and Penology
c) Asst. City Fiscal Felipe Belcia
3.1 Any person who tampers or tries to release an
immobilized or clamped motor vehicle by destroying the
denver boot vehicle immobilizer or other such special
gadgets, shall be liable for its loss or destruction and shall be
prosecuted for such loss or destruction under pain or
penalty under the Revised Penal Code and any other
existing ordinance of the City of Cebu for the criminal act, in
addition to his/her civil liabilities under the Civil Code of the
Philippines; Provided that any such act may not be
compromised nor settled amicably extrajudicially.
3.2 Any immobilized vehicle which is unattended and
constitute an obstruction to the free flow of traffic or a hazard
thereof shall be towed to the city government impounding
area for safekeeping and may be released only after the
provision of Section 3 hereof shall have been fully complied
with.
3.3 Any person who violates any provision of this ordinance
shall, upon conviction, be penalized with imprisonment of not
less than one (1) month nor more than six (6) months or of a
fine of not less than Two Thousand Pesos (P2,000.00) nor
more than Five Thousand Pesos (P5,000.00), or both such
imprisonment and fine at the discretion of the
court.2ChanRoblesVirtualawlibrary
On July 29, 1997, Atty. Bienvenido Jaban (Jaban, Sr.) and
his son Atty. Bienvenido Douglas Luke Bradbury Jaban
(Jaban, Jr.) brought suit in the RTC in Cebu City against the
City of Cebu, then represented by Hon. Alvin Garcia, its City
Mayor, the Sangguniang Panlungsod of Cebu City and its
Presiding Officer, Hon. Renato V. Osmea, and the chairman
and operatives or officers of the City Traffic Operations
Management (CITOM), seeking the declaration of Ordinance
No. 1644 as unconstitutional for being in violation of due
process and for being contrary to law, and damages.3 Their
complaint alleged that on June 23, 1997, Jaban Sr. had
properly parked his car in a paying parking area on Manalili
Street, Cebu City to get certain records and documents from
his office;4 that upon his return after less than 10 minutes,
he had found his car being immobilized by a steel clamp,
and a notice being posted on the car to the effect that it
would be a criminal offense to break the clamp;5 that he had
been infuriated by the immobilization of his car because he
had been thereby rendered unable to meet an important
client on that day; that his car was impounded for three days,
and was informed at the office of the CITOM that he had first
to pay P4,200.00 as a fine to the City Treasurer of Cebu City
for the release of his car;6 that the fine was imposed without
any court hearing and without due process of law, for he was
not even told why his car had been immobilized; that he had
undergone a similar incident of clamping of his car on the
early morning of November 20, 1997 while his car was
parked properly in a parking lot in front of the San Nicolas
Pasil Market in Cebu City without violating any traffic
regulation or causing any obstruction; that he was compelled
to pay P1,500.00 (itemized as P500.00 for the clamping and
P1,000.00 for the violation) without any court hearing and
final judgment; that on May 19, 1997, Jaban, Jr. parked his
car in a very secluded place where there was no sign
prohibiting parking; that his car was immobilized by CITOM
operative Lito Gilbuena; and that he was compelled to pay
the total sum of P1,400.00 for the release of his car without a
court hearing and a final judgment rendered by a court of
justice.7cralawred
On August 11, 1997, Valentino Legaspi (Legaspi) likewise
sued in the RTC the City of Cebu, T.C. Sayson, Ricardo
Hapitan and John Does to demand the delivery of personal
property, declaration of nullity of the Traffic Code of Cebu
City, and damages.8 He averred that on the morning of July
29, 1997, he had left his car occupying a portion of the
sidewalk and the street outside the gate of his house to
make way for the vehicle of the anay exterminator who had
asked to be allowed to unload his materials and equipment
from the front of the residence inasmuch as his daughters
car had been parked in the carport, with the assurance that
the unloading would not take too long;9 that while waiting for
the anay exterminator to finish unloading, the phone in his
office inside the house had rung, impelling him to go into the
house to answer the call; that after a short while, his sonin
law informed him that unknown persons had clamped the
front wheel of his car;10 that he rushed outside and found a
traffic citation stating that his car had been clamped by
CITOM representatives with a warning that the unauthorized
removal of the clamp would subject the remover to criminal
charges;11 and that in the late afternoon a group headed by
Ricardo Hapitan towed the car even if it was not obstructing
the flow of traffic.12
In separate answers for the City of Cebu and its co
defendants,13 the City Attorney of Cebu presented similar
defenses, essentially stating that the traffic enforcers had
only upheld the law by clamping the vehicles of the
plaintiffs;14 and that Ordinance No. 1664 enjoyed the
presumption of constitutionality and validity.15
The cases were consolidated before Branch 58 of the RTC,
which, after trial, rendered on January 22, 1999 its decision
declaring Ordinance No. 1664 as null and void upon the
following ratiocination:chanRoblesvirtualLawlibrary
In clear and simple phrase, the essence of due process was
expressed by Daniel Webster as a law which hears before it
condemns. In another case[s], procedural due process is
that which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial. It
contemplate(s) notice and opportunity to be heard before
judgment is rendered affecting ones (sic) person or
property. In both procedural and substantive due process, a
hearing is always a prerequisite, hence, the taking or
deprivation of ones life, liberty or property must be done
upon and with observance of the due process clause of the
Constitution and the nonobservance or violation thereof is,
perforce, unconstitutional.
Under Ordinance No. 1664, when a vehicle is parked in a
prohibited, restrycted (sic) or regulated area in the street or
along the street, the vehicle is immobilized by clamping any
tire of said vehicle with the use of a denver boot vehicle
immobilizer or any other special gadget which immobilized
the motor vehicle. The violating vehicle is immobilized, thus,
depriving its owner of the use thereof at the sole
determination of any traffic enforcer or regular PNP
personnel or Cebu City Traffic Law Enforcement Personnel.
The vehicle immobilizer cannot be removed or released
without the owner or driver paying first to the City Treasurer
of Cebu through the Traffic Violations Bureau all the
accumulated penalties of all unpaid or unsettled traffic law
violations, plus the administrative penalty of P500.00 and,
further, the immobilized vehicle shall be released only upon
presentation of the receipt of said payments and upon
release order by the Chairman, CITOM, or Chairman,
Committee on Police, Fire and Penology, or Asst. City Fiscal
Felipe Belcina. It should be stressed that the owner of the
immobilized vehicle shall have to undergo all these ordeals
at the mercy of the Traffic Law Enforcer who, as the
Ordinance in question mandates, is the arresting officer,
prosecutor, Judge and collector. Otherwise stated, the owner
of the immobilized motor vehicle is deprived of his right to
the use of his/her vehicle and penalized without a hearing by
a person who is not legally or duly vested with such rights,
power or authority. The Ordinance in question is penal in
nature, and it has been held;
xxx
WHEREFORE, premised (sic) considered, judgment is
hereby rendered declaring Ordinance No. 1664
unconstitutional and directing the defendant City of Cebu to
pay the plaintiff Valentino Legaspi the sum of P110,000.00
representing the value of his car, and to all the plaintiffs,
Valentino L. Legaspi, Bienvenido P. Jaban and Bienvenido
Douglas Luke Bradbury Jaban, the sum of P100,000.00
each or P300,000.00 all as nominal damages and another
P100,000.00 each or P300,000.00 all as temperate or
moderate damages. With costs against defendant City of
Cebu.
SO ORDERED.16 (citations
omitted)chanroblesvirtualawlibrary
The City of Cebu and its codefendants appealed to the CA,
assigning the following errors to the RTC, namely: (a) the
RTC erred in declaring that Ordinance No. 1664 was
unconstitutional; (b) granting, arguendo, that Ordinance No.
1664 was unconstitutional, the RTC gravely erred in holding
that any violation prior to its declaration as being
unconstitutional was irrelevant; (c) granting, arguendo, that
Ordinance No. 1664 was unconstitutional, the RTC gravely
erred in awarding damages to the plaintiffs; (d) granting,
arguendo, that the plaintiffs were entitled to damages, the
damages awarded were excessive and contrary to law; and
(e) the decision of the RTC was void, because the Office of
the Solicitor General (OSG) had not been notified of the
proceedings.
On June 16, 2003, the CA promulgated its assailed
decision,17 overturning the RTC and declaring Ordinance
No. 1664 valid, to wit:chanRoblesvirtualLawlibrary
The principal thrust of this appeal is the constitutionality of
Ordinance 1664. Defendantsappellants contend that the
passage of Ordinance 1664 is in accordance with the police
powers exercised by the City of Cebu through the
Sangguniang Panlungsod and granted by RA 7160,
otherwise known as the Local Government Code. A thematic
analysis of the law on municipal corporations confirms this
view. As in previous legislation, the Local Government Code
delegates police powers to the local governments in two
ways. Firstly, it enumerates the subjects on which the
Sangguniang Panlungsod may exercise these powers. Thus,
with respect to the use of public streets, Section 458 of the
Code states:chanRoblesvirtualLawlibrary
Section 458 (a) The sangguniang panlungsod, as the
legislative branch of the city, x x x shall x x x
(5) (v) Regulate the use of streets, avenues, alleys,
sidewalks, bridges, park and other public places and
approve the construction, improvement, repair and
maintenance of the same; establish bus and vehicle stops
and terminals or regulate the use of the same by privately
owned vehicles which serve the public; regulate garages and
the operation of conveyances for hire; designate stands to
be occupied by public vehicles when not in use; regulate the
putting up of signs, signposts, awnings and awning posts on
the streets; and provide for the lighting, cleaning and
sprinkling of streets and public places;
(vi) Regulate traffic on all streets and bridges; prohibit
encroachments or obstacles thereon and, when necessary in
the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places.
It then makes a general grant of the police power. The scope
of the legislative authority of the local government is set out
in Section 16, to wit:chanRoblesvirtualLawlibrary
Section 16. General Welfare. Every local government unit
shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion
of the general welfare.
This provision contains what is traditionally known as the
general welfare clause. As expounded in United States vs.
Salaveria, 39 Phil 102, the general welfare clause has two
branches. One branch attaches itself to the main trunk of
municipal authority, and relates to such ordinances and
regulations as may be necessary to carry into effect and
discharge the powers and duties conferred upon the
municipal council by law. The second branch of the clause is
much more independent of the specific functions of the
council, and authorizes such ordinances as shall seem
necessary and proper to provide for health, safety, prosperity
and convenience of the municipality and its inhabitants.
In a vital and critical way, the general welfare clause
complements the more specific powers granted a local
government. It serves as a catchall provision that ensures
that the local government will be equipped to meet any local
contingency that bears upon the welfare of its constituents
but has not been actually anticipated. So varied and protean
are the activities that affect the legitimate interests of the
local inhabitants that it is wellnigh impossible to say
beforehand what may or may not be done specifically
through law. To ensure that a local government can react
positively to the peoples needs and expectations, the
general welfare clause has been devised and interpreted to
allow the local legislative council to enact such measures as
the occasion requires.
Founded on clear authority and tradition, Ordinance 1664
may be deemed a legitimate exercise of the police powers of
the Sangguniang Panlungsod of the City of Cebu. This local
law authorizes traffic enforcers to immobilize and tow for
safekeeping vehicles on the streets that are illegally parked
and to release them upon payment of the announced
penalties. As explained in the preamble, it has become
necessary to resort to these measures because of the traffic
congestion caused by illegal parking and the inability of
existing penalties to curb it. The ordinance is designed to
improve traffic conditions in the City of Cebu and thus shows
a real and substantial relation to the welfare, comfort and
convenience of the people of Cebu. The only restrictions to
an ordinance passed under the general welfare clause, as
declared in Salaveria, is that the regulation must be
reasonable, consonant with the general powers and
purposes of the corporation, consistent with national laws
and policies, and not unreasonable or discriminatory. The
measure in question undoubtedly comes within these
parameters.
Upon the denial of their respective motions for
reconsideration on August 4, 2003, the Jabans and Legaspi
came to the Court via separate petitions for review on
certiorari. The appeals were consolidated.
Issues
Based on the submissions of the parties, the following issues
are decisive of the challenge, to
wit:chanRoblesvirtualLawlibrary
Whether Ordinance No. 1664 was enacted within the ambit
of the legislative powers of the City of Cebu; and
Whether Ordinance No. 1664 complied with the
requirements for validity and constitutionality, particularly the
limitations set by the Constitution and the relevant statutes.
Ruling
The petitions for review have no merit.
A.
Tests for a valid ordinance
In City of Manila v. Laguio, Jr.,18 the Court restates the tests
of a valid ordinance thusly:chanRoblesvirtualLawlibrary
The tests of a valid ordinance are well established. A long
line of decisions has held that for an ordinance to be valid, it
must not only be within the corporate powers of the local
government unit to enact and must be passed according to
the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene
the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must
not prohibit but may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be
unreasonable.19ChanRoblesVirtualawlibrary
As jurisprudence indicates, the tests are divided into the
formal (i.e., whether the ordinance was enacted within the
corporate powers of the LGU, and whether it was passed in
accordance with the procedure prescribed by law), and the
substantive (i.e., involving inherent merit, like the conformity
of the ordinance with the limitations under the Constitution
and the statutes, as well as with the requirements of fairness
and reason, and its consistency with public policy).
B.
Compliance of Ordinance No. 1664 with the formal
requirements
Was the enactment of Ordinance No. 1664 within the
corporate powers of the LGU of the City of Cebu?
The answer is in the affirmative. Indeed, with no issues
being hereby raised against the formalities attendant to the
enactment of Ordinance No. 1664, we presume its full
compliance with the test in that regard. Congress enacted
the LGC as the implementing law for the delegation to the
various LGUs of the States great powers, namely: the police
power, the power of eminent domain, and the power of
taxation. The LGC was fashioned to delineate the specific
parameters and limitations to be complied with by each LGU
in the exercise of these delegated powers with the view of
making each LGU a fully functioning subdivision of the State
subject to the constitutional and statutory limitations.
In particular, police power is regarded as the most essential,
insistent and the least limitable of powers, extending as it
does to all the great public needs.20 It is unquestionably
the power vested in the legislature by the constitution, to
make, ordain and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either with
penalties or without, not repugnant to the constitution, as
they shall judge to be for the good and welfare of the
commonwealth, and of the subject of the same.21
According to Cooley: [The police power] embraces the
whole system of internal regulation by which the state seeks
not only to preserve the public order and to prevent offences
against itself, but also to establish for the intercourse of
citizens with citizens, those rules of good manners and good
neighborhood which are calculated to prevent the conflict of
rights and to insure to each the uninterrupted enjoyment of
his own, so far as it is reasonably consistent with the right
enjoyment of rights by others.22
In point is the exercise by the LGU of the City of Cebu of
delegated police power. In Metropolitan Manila Development
Authority v. BelAir Village Association, Inc.,23 the Court
cogently observed:chanRoblesvirtualLawlibrary
It bears stressing that police power is lodged primarily in the
National Legislature. It cannot be exercised by any group or
body of individuals not possessing legislative power. The
National Legislature, however, may delegate this power to
the President and administrative boards as well as the
lawmaking bodies of municipal corporations or local
government units. Once delegated, the agents can exercise
only such legislative powers as are conferred on them by the
national lawmaking body. (emphasis
supplied)chanroblesvirtualawlibrary
The CA opined, and correctly so, that vesting cities like the
City of Cebu with the legislative power to enact traffic rules
and regulations was expressly done through Section 458 of
the LGC, and also generally by virtue of the General Welfare
Clause embodied in Section 16 of the LGC.24
Section 458 of the LGC relevantly
states:chanRoblesvirtualLawlibrary
Section 458. Powers, Duties, Functions and Composition.
(a) The sangguniang panlungsod, as the legislative body of
the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
xxx
(5) Approve ordinances which shall ensure the efficient and
effective delivery of the basic services and facilities as
provided for under Section 17 of this Code, and in addition to
said services and facilities, shall:
xxx
(v) Regulate the use of streets, avenues, alleys, sidewalks,
bridges, parks and other public places and approve the
construction, improvement repair and maintenance of the
same; establish bus and vehicle stops and terminals or
regulate the use of the same by privatelyowned vehicles
which serve the public; regulate garages and operation of
conveyances for hire; designate stands to be occupied by
public vehicles when not in use; regulate the putting up of
signs, signposts, awnings and awning posts on the streets;
and provide for the lighting, cleaning and sprinkling of streets
and public places;
(vi) Regulate traffic on all streets and bridges; prohibit
encroachments or obstacles thereon and, when necessary in
the interest of public welfare, authorize the removal of
encroachments and illegal constructions in public places;
(emphasis supplied)chanroblesvirtualawlibrary
The foregoing delegation reflected the desire of Congress to
leave to the cities themselves the task of confronting the
problem of traffic congestions associated with development
and progress because they were directly familiar with the
situations in their respective jurisdictions. Indeed, the LGUs
would be in the best position to craft their traffic codes
because of their familiarity with the conditions peculiar to
their communities. With the broad latitude in this regard
allowed to the LGUs of the cities, their traffic regulations
must be held valid and effective unless they infringed the
constitutional limitations and statutory safeguards.
C.
Compliance of Ordinance No. 1664with the substantive
requirements
The first substantive requirement for a valid ordinance is the
adherence to the constitutional guaranty of due process of
law. The guaranty is embedded in Article III, Section 1 of the
Constitution, which ordains:chanRoblesvirtualLawlibrary
Section 1. No person shall be deprived of life, liberty or
property without due process of law, nor shall any person be
denied the equal protection of the laws.
The guaranty of due process of law is a constitutional
safeguard against any arbitrariness on the part of the
Government, whether committed by the Legislature, the
Executive, or the Judiciary. It is a protection essential to
every inhabitant of the country, for, as a commentator on
Constitutional Law has vividly written:25
x x x. If the law itself unreasonably deprives a person of his
life, liberty, or property, he is denied the protection of due
process. If the enjoyment of his rights is conditioned on an
unreasonable requirement, due process is likewise violated.
Whatsoever be the source of such rights, be it the
Constitution itself or merely a statute, its unjustified
withholding would also be a violation of due process. Any
government act that militates against the ordinary norms of
justice or fair play is considered an infraction of the great
guaranty of due process; and this is true whether the denial
involves violation merely of the procedure prescribed by the
law or affects the very validity of the law itself.
In City of Manila v. Laguio, Jr.,26 the Court expounded on
the aspects of the guaranty of due process of law as a
limitation on the acts of government,
viz:chanRoblesvirtualLawlibrary
This clause has been interpreted as imposing two separate
limits on government, usually called procedural due
process and substantive due process.
Procedural due process, as the phrase implies, refers to the
procedures that the government must follow before it
deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with that kind
of notice and what form of hearing the government must
provide when it takes a particular action.
Substantive due process, as that phrase connotes, asks
whether the government has an adequate reason for taking
away a persons life, liberty, or property. In other words,
substantive due process looks to whether there is sufficient
justification for the governments action. Case law in the
United States (U.S.) tells us that whether there is such a
justification depends very much on the level of scrutiny used.
For example, if a law is in an area where only rational basis
review is applied, substantive due process is met so long as
the law is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is used,
such as for protecting fundamental rights, then the
government will meet substantive due process only if it can
prove that the law is necessary to achieve a compelling
government purpose.
The police power granted to local government units must
always be exercised with utmost observance of the rights of
the people to due process and equal protection of the law.
Such power cannot be exercised whimsically, arbitrarily or
despotically as its exercise is subject to a qualification,
limitation or restriction demanded by the respect and regard
due to the prescription of the fundamental law, particularly
those forming part of the Bill of Rights. Individual rights, it
bears emphasis, may be adversely affected only to the
extent that may fairly be required by the legitimate demands
of public interest or public welfare. Due process requires the
intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and
property.27ChanRoblesVirtualawlibrary
The Jabans contend that Ordinance No. 1664, by leaving the
confiscation and immobilization of the motor vehicles to the
traffic enforcers or the regular personnel of the Philippine
National Police (PNP) instead of to officials exercising
judicial authority, was violative of the constitutional guaranty
of due process; that such confiscation and immobilization
should only be after a hearing on the merits by courts of law;
and that the immobilization and the clamping of the cars and
motor vehicles by the police or traffic enforcers could be
subject to abuse.

On his part, Legaspi likewise contends that Ordinance No.
1664 violated the constitutional guaranty of due process for
being arbitrary and oppressive; and that its provisions
conferring upon the traffic enforcers the absolute discretion
to be the enforcers, prosecutors, judges and collectors all at
the same time were vague and ambiguous.28 He reminds
that the grant of police powers for the general welfare under
the LGC was not unlimited but subject to constitutional
limitations;29 and that these consolidated cases should not
be resolved differently from the resolution of a third case
assailing the validity of Ordinance No. 1664 (Astillero case),
in which the decision of the same RTC declaring Ordinance
No. 1664 as unconstitutional had attained finality following
the denial of due course to the appeal of the City of Cebu
and its codefendants.
Judged according to the foregoing enunciation of the
guaranty of due process of law, the contentions of the
petitioners cannot be sustained. Even under strict scrutiny
review, Ordinance No. 1664 met the substantive tests of
validity and constitutionality by its conformity with the
limitations under the Constitution and the statutes, as well as
with the requirements of fairness and reason, and its
consistency with public policy.
To us, the terms encroachment and obstacles used in
Section 458 of the LGC, supra, were broad enough to
include illegally parked vehicles or whatever else obstructed
the streets, alleys and sidewalks, which were precisely the
subject of Ordinance No. 1664 in avowedly aiming to ensure
a smooth flow of vehicular traffic in all the streets in the City
of Cebu at all times (Section 1). This aim was borne out by
its Whereas Clauses, viz:chanRoblesvirtualLawlibrary
WHEREAS, the City of Cebu enacted the Traffic Code
(Ordinance No. 801) as amended, provided for Parking
Restrictions and Parking Prohibitions in the streets of Cebu
City;
WHEREAS, despite the restrictions and prohibitions of
parking on certain streets of Cebu City, violations continued
unabated due, among others, to the very low penalties
imposed under the Traffic Code of Cebu City;
WHEREAS, City Ordinance 1642 was enacted in order to
address the traffic congestions caused by illegal parkings in
the streets of Cebu City;
WHEREAS, there is a need to amend City Ordinance
No.1642 in order to fully address and solve the problem of
illegal parking and other violations of the Traffic Code of
Cebu City;30 (emphasis supplied)chanroblesvirtualawlibrary
Considering that traffic congestions were already retarding
the growth and progress in the population and economic
centers of the country, the plain objective of Ordinance No.
1664 was to serve the public interest and advance the
general welfare in the City of Cebu. Its adoption was,
therefore, in order to fulfill the compelling government
purpose of immediately addressing the burgeoning traffic
congestions caused by illegally parked vehicles obstructing
the streets of the City of Cebu.
Legaspis attack against the provisions of Ordinance No.
1664 for being vague and ambiguous cannot stand scrutiny.
As can be readily seen, its text was forthright and
unambiguous in all respects. There could be no confusion on
the meaning and coverage of the ordinance. But should
there be any vagueness and ambiguity in the provisions,
which the OSG does not concede,31 there was nothing that
a proper application of the basic rules of statutory
construction could not justly rectify.
The petitioners further assert that drivers or vehicle owners
affected by Ordinance No. 1664 like themselves were not
accorded the opportunity to protest the clamping, towing,
and impounding of the vehicles, or even to be heard and to
explain their side prior to the immobilization of their vehicles;
and that the ordinance was oppressive and arbitrary for that
reason.
The adverse assertions against Ordinance No. 1664 are
unwarranted.
Firstly, Ordinance No. 1664 was far from oppressive and
arbitrary. Any driver or vehicle owner whose vehicle was
immobilized by clamping could protest such action of a traffic
enforcer or PNP personnel enforcing the ordinance. Section
3 of Ordinance No. 1664, supra, textually afforded an
administrative escape in the form of permitting the release of
the immobilized vehicle upon a protest directly made to the
Chairman of CITOM; or to the Chairman of the Committee
on Police, Fire and Penology of the City of Cebu; or to Asst.
City Prosecutor Felipe Belcia officials named in the
ordinance itself. The release could be ordered by any of
such officials even without the payment of the stipulated fine.
That none of the petitioners, albeit lawyers all, resorted to
such recourse did not diminish the fairness and
reasonableness of the escape clause written in the
ordinance. Secondly, the immobilization of a vehicle by
clamping pursuant to the ordinance was not necessary if the
driver or vehicle owner was around at the time of the
apprehension for illegal parking or obstruction. In that
situation, the enforcer would simply either require the driver
to move the vehicle or issue a traffic citation should the latter
persist in his violation. The clamping would happen only to
prevent the transgressor from using the vehicle itself to
escape the due sanctions. And, lastly, the towing away of the
immobilized vehicle was not equivalent to a summary
impounding, but designed to prevent the immobilized vehicle
from obstructing traffic in the vicinity of the apprehension and
thereby ensure the smooth flow of traffic. The owner of the
towed vehicle would not be deprived of his property.
In fine, the circumstances set forth herein indicate that
Ordinance No. 1664 complied with the elements of fairness
and reasonableness.
Did Ordinance No. 1664 meet the requirements of
procedural due process?
Notice and hearing are the essential requirements of
procedural due process. Yet, there are many instances
under our laws in which the absence of one or both of such
requirements is not necessarily a denial or deprivation of due
process. Among the instances are the cancellation of the
passport of a person being sought for the commission of a
crime, the preventive suspension of a civil servant facing
administrative charges, the distraint of properties to answer
for tax delinquencies, the padlocking of restaurants found to
be unsanitary or of theaters showing obscene movies, and
the abatement of nuisance per se.32 Add to them the arrest
of a person in flagrante delicto.33
The clamping of the petitioners vehicles pursuant to
Ordinance No. 1664 (and of the vehicles of others similarly
situated) was of the same character as the aforecited
established exceptions dispensing with notice and hearing.
As already said, the immobilization of illegally parked
vehicles by clamping the tires was necessary because the
transgressors were not around at the time of apprehension.
Under such circumstance, notice and hearing would be
superfluous. Nor should the lack of a trialtype hearing prior
to the clamping constitute a breach of procedural due
process, for giving the transgressors the chance to reverse
the apprehensions through a timely protest could equally
satisfy the need for a hearing. In other words, the prior
intervention of a court of law was not indispensable to
ensure a compliance with the guaranty of due process.
To reiterate, the clamping of the illegally parked vehicles was
a fair and reasonable way to enforce the ordinance against
its transgressors; otherwise, the transgressors would evade
liability by simply driving away.
Finally, Legaspis position, that the final decision of the RTC
rendered in the Astillero case declaring Ordinance No. 1664
unconstitutional bound the City of Cebu, thereby precluding
these consolidated appeals from being decided differently, is
utterly untenable. For one, Legaspi undeservedly extends
too much importance to an irrelevant decision of the RTC
irrelevant, because the connection between that case to
these cases was not at all shown. For another, he ignores
that it should be the RTC that had improperly acted for so
deciding the Astillero case despite the appeals in these
cases being already pending in the CA. Being the same
court in the three cases, the RTC should have anticipated
that in the regular course of proceedings, the outcome of the
appeal in these cases then pending before the CA would
ultimately be elevated to and determined by no less than the
Court itself. Such anticipation should have made it refrain
from declaring Ordinance No. 1664 unconstitutional, for a
lower court like itself, appreciating its position in the
interrelation and operation of the integrated judicial system
of the nation, should have exercised a becoming modesty
on the issue of the constitutionality of the same ordinance
that the Constitution required the majority vote of the
Members of the Court sitting en banc to determine.34 Such
becoming modesty also forewarned that any declaration of
unconstitutionality by an inferior court was binding only on
the parties, but that a declaration of unconstitutionality by the promulgated on June 16, 2003 by the Court of Appeals; and
Court would be a precedent binding on all.35 ORDERS the petitioners to pay the costs of suit.
WHEREFORE, the Court DENIES the petitions for review on SO ORDERED.
certiorari for their lack of merit; AFFIRMS the decision