You are on page 1of 8

[G.R. No. 89591-96. August 13, 1990.

PEOPLE OF THE PHILIPPINES, Petitioner, v. THE HON. BONIFACIO SANZ MACEDA, Presiding Judge of
Branch 12, Regional Trial Court of Antique, and AVELINO T. JAVELLANA, Respondents.

The Solicitor General for petitioner.

DECISION

PADILLA, J.:

In the morning of 11 February 1986, the late ex-Governor of Antique, Evelio Javier, was gunned down in the plaza of
San Jose, Antique.

Immediately thereafter, the authorities conducted an investigation, and as a result thereof, a complaint against John
Paloy and Vicente Vegafria was filed with the Office of the Provincial Prosecutor.

During the preliminary investigation, private respondent Avelino T. Javellana appeared as counsel for John Paloy and
Vicente Vegafria, until Federico Carluto, Jr., executed an affidavit, 1 dated 16 June 1986, and Evelyn Magare and Fritz
Xavier their sworn statements, 2 dated 19 February 1986 and 7 March 1986, respectively, implicating private
respondent in the killing of the late Evelio Javier.

On 29 October 1986, the then Senior State Prosecutor Tirso D.C. Velasco, now RTC Judge of Quezon City, filed with
the RTC of Antique, six (6) separate informations, 3 all dated 13 October 1986, charging private respondent Avelino T.
Javellana, together with John Paloy, Vicente Vegafria, Eduardo Iran alias "Boy Muslim", alias "Muklo", Rudolfo
Pacificador Alias "Ding", Arturo F. Pacificador and several John Does, with the crime of murder, frustrated murder and
for four (4) counts of attempted murder. 4

Meanwhile, on 23 September 1986 and 27 October 1986, Romeo Nagales and Jose Delumen executed their
respective sworn statements, 5 admitting their participation in the killing of Evelio Javier, and implicating other persons
in the commission of the crime.

On the basis of their sworn statements, the prosecution, through Senior State Prosecutor Aurelio C. Trampe, amended
the aforesaid informations by including therein the following persons as accused, namely: Ramon Hortillano alias
"Ramie", Henry Salaber alias "Henry", Eleazar Edemne alias "Toto", Arleen Limoso alias "Arleen", Romeo Nagales
alias "Reming", Rolando C. Bernardino alias "Lando", Jose De Lumen alias "Marlon", Jose Delumen alias "Winfield",
Oscar Tianzon alias "Oca", alias "Nono", alias "Akong", alias "Nonoy", alias "Tatang" and alias "Dolfo." 6

On motion of Senior State Prosecutor Aurelio C. Trampe, the said criminal cases were consolidated in Branch 12 of
the RTC of Antique, presided over by respondent Judge.

Of the nineteen (19) accused, only six (6) had been apprehended and/or surrendered, namely: John Paloy, Vicente
Vegafria, Rolando Bernardino, Jesus Garcia y Amorsolo alias "Nono Picoy", Jose Delumen alias "Winfield" and
Romeo Nagales alias "Reming." All the others were at large, including herein private respondent Avelino Javellana. 7
Hence, trial proceeded only as against the said six (6) accused.

On 9 May 1989, the prosecution moved to discharge the accused Jose Delumen and Romeo Nagales, claiming that
their testimonies were absolutely necessary against accused Rolando Bernardino as well as the other accused,
including private respondent who was then at-large.

On 11 May 1989, the court a quo granted the motion to discharge Romeo Nagales but denied it as regards Jose
Delumen, the latter having admitted a prior conviction for the crime of robbery.

However, despite the discharge of Rome Nagales, the prosecution rested its case without presenting him as state
witness and reserved its right to present him as a witness against the other accused who were then at-large.

On 12 May 1989, private respondent was arrested by the Constabulary Security Group (CSG) in Parañaque, Metro
Manila. On 15 May 1989, the Integrated Bar of the Philippines (IBP), Iloilo Chapter, through its President, Atty. J.T.
Barrera, entered its appearance as counsel for private respondent with a motion that the IBP, Iloilo Chapter be allowed
to assume custody of the private respondent as his jailer and/or, in the alternative, to confine him at the Military
Stockade at Camp Delgado and/or at the Iloilo Provincial Jail. 8

When private respondent was brought before the trial court on 7 June 1989, Atty. J.T. Barrera manifested and moved
that his motion of 15 May 1989 be heard. During the hearing, Assistant Provincial Prosecutor John Turalba opposed
the motion. The issue was heatedly argued by the prosecution and the defense. Whereupon, private respondent
pleaded that he be allowed to approach the bench together with all the counsel, which respondent Judge reluctantly
granted. Private respondent informed the court that there exists a real and grave danger to his life if he were to be
confined in the Antique Provincial Jail. He then narrated an incident when he, as the then counsel for John Paloy and
Vicente Vegafria, prior to his inclusion as one of the respondents, was refused the right to visit and confer with his
clients by a drunk jail guard at the Antique Provincial Jail; that the said guard was toying with his armalite rifle while
standing at the gate of the provincial jail and did not allow him to enter; that said guard aimed and pointed his armalite
rifle twice at him; and that because of his complaint, the guard was suspended but has long been back on duty of the
provincial jail. After hearing the narration, Assistant Provincial Prosecutor John Turalba withdrew his objection. 9

Hence, on the same date, 7 June 1989, respondent Judge issued an order, 10 the pertinent part of which
reads:chanrob1es virtual 1aw library

. . ., without jurisdiction on the part of Prosecutor John Turalba, Accused Javellana is hereby ordered confined at PC,
Stockade, Bugante Point San Jose, Antique in the custody of the PC/INP Provincial Commander who is directed to
take charge of the custody of said accused and to bring him back to court whenever required."cralaw virtua1aw library

On 2 August 1989, the Provincial Commander, Col. Teodulo Abayata, wrote respondent Judge:jgc:chanrobles.com.ph

"I am in receipt of instruction from CPC to turn over Atty. Avelino Javellana to the Provincial Jail effective immediately
and for me to give feedback NLT today 2 August 1989.

"Since his custody under the Provincial Commander was through the order of that Honorable Court, request that
another order be issued for me to be able to comply (sic) the instructions from my superior officers. "11

On the same date, 2 August 1989, respondent Judge issued an order 12 granting the request of Col. Abayata, and
ordered the private respondent to be confined as a detention prisoner at the Binirayan Rehabilitation Center, San
Jose, Antique, subject to the conditions set forth therein.

Upon receipt of the order on the same day, private respondent filed an urgent ex-parte motion for reconsideration, 13
alleging that the Binirayan Rehabilitation Center, aside from being a little bit far and unsafe, has conditions which may
not work well for his health; that he underwent retrogade operation less than a year ago and up to the present he is
still taking medication for maintenance; that he has a history of heart treatment and very often he takes maintenance
pills and he is confronted by his unstable blood pressure; that the location of the rehabilitation center and the absence
of facilities there may cause adverse effects on his health condition; and praying that he be confined in the Provincial
Jail of Iloilo where he can be nearer to better hospital facilities.chanrobles law library

When the aforesaid motion for private respondent was called for hearing in the afternoon of 2 August 1989,
respondent Judge required the presence of Assistant Provincial Prosecutor John Turalba. The latter appeared and
reiterated the earlier objection of the Senior State Prosecutor to the confinement of private respondent in any place
other than the Provincial Jail of Antique.

After the hearing, respondent Judge issued an order, 14 reconsidering and setting aside the earlier order, and directed
that —

". . . the accused, should in the meantime, be committed to the Angel Salazar Memorial Hospital and subjected to a
physical check-up at the expense of the accused Javellana. The head of the said hospital is directed to submit his
report soonest on the physical condition of accused Javellana.

"Meantime, while the check-up is being undertaken, the Station Commander of San Jose, Antique is directed to take
custody and provide adequate security for accused Javellana in order to prevent his escape and to continue such
custody until further orders from the court. . . ."cralaw virtua1aw library

On 3 August 1989, the head of the hospital issued a certification on the result of the physical check-up conducted on
private respondent, thus:jgc:chanrobles.com.ph

"As per order of your Honor, dated August 2, 1989, Atty. Avelino T. Javellana was examined by Dr. Felipe Rosendo
Muzones and his ECG examination showed that everything is within normal limits. However, Dr. Muzones contends
that the same is not the only determinant factor as far as the condition of the heart is concerned. Hence, he
recommends that blood chemistry examination is necessary. We are sad to inform your Honor that we do not have
necessary chemicals for this type of examination at present." 15

In view of the aforesaid certification, the private respondent filed on the same day an Urgent Ex-Parte Motion, 16
praying that he be allowed further medical examination at the Iloilo Mission Hospital in Iloilo City under at least two (2)
police escorts. When the motion was called in open court in the afternoon, the private respondent and the Assistant
Provincial Prosecutor appeared, and both argued for and against the motion. Thereafter, the respondent Judge issued
an order, 17 the pertinent part of which reads, as follows:jgc:chanrobles.com.ph

"It is the considered view of the Court that whether the blood chemistry examination is necessary or not, the fact still
remains that the examination conducted on the heart of movant is incomplete and the court will not leave to chance
the condition of the heart of movant who stands charged of a serious crime in these cases. The Court believes that the
best interest of justice may be served should the accused be given time to be subjected to a more complete and
exhaustive physical examination particularly his heart condition, especially considering the information given in open
court by movant that his brother died at a tender age of thirty-three (33) of coronary thrombosis and their family has a
history of heart ailment and according to specialist doctor, movant himself is prone to coronary thrombosis.

x x x

"WHEREFORE, in view of all the foregoing, the Station Commander of San Jose, Antique is hereby directed to assign
two (21 guards to whom custody of movant Javellana is entrusted by the Court to escort the movant Avelino Javellana
to Iloilo Mission Hospital, Iloilo City for a complete medical check-up, particularly on the heart of Mr.
Javellana. . . ."cralaw virtua1aw library

However, before private respondent and his two (2) police escorts could leave for Iloilo City, P/Col. Magsinpoc, Station
Commander of San Jose, Antique, verbally conveyed to respondent Judge an "unforseen emergency" necessitating
the "response of all personnel of his Command" and requesting authority to recall the police escorts. In view thereof,
respondent Judge was constrained to issue on the same day, 3 August 1989, another order, 18 granting the request of
the Station Commander, and directed the Provincial Probation Officer of Antique to take custody of private respondent
and to escort him to Iloilo City for medical check-up and bring him back to court not later than 8:30 A.M. on Monday, 7
August 1989. Thus, the Provincial Probation Officer brought the private respondent to the Iloilo Mission Hospital and
left him there for a 3-day medical check-up, and thereafter brought him back to court at 8:30 o’clock in the morning of
7 August 1989.

When the cases were called in the morning of 7 August 1989, Attys. Amelia K. del Rosario, Arturo Alinio and J.T.
Barrera entered their appearance as counsel for private respondent, and argued that the custody of private
respondent be entrusted to the IBP, Iloilo Chapter, headed by Atty. J.T. Barrera. However, Senior State Prosecutor
Aurelio C. Trampe moved that the resolution of the incident be held in abeyance until the hearing, in the afternoon.

On the other hand, Atty. Jose A. Alegario entered his appearance as counsel for the then recently arrested accused
Oscar Tianzon, who manifested that his client was ready for arraignment. Accordingly, the said accused was
arraigned. He pleaded "not guilty."cralaw virtua1aw library

Thereafter, the respondent Judge issued an order, 19 terminating the custody of the Provincial Probation Officer, and,
in the meantime, gave the custody of private respondent to his lawyers, as officers of the court, ordering the
confinement of accused Oscar Tianzon with the Antique Provincial Jail Warden and setting the continuation of the
hearing to 8 August 1989.

After the hearing in the afternoon, the respondent Judge issued another order, 20 deputizing private respondent’s
lawyers as deputies of the court and ordered the confinement of private respondent at the San Jose residence of Atty.
Deogracias del Rosario, who happened to be the Clerk of Court of the RTC of Antique.

On 8 August 1989, respondent Judge issued an order, 21 terminating the deputization of private respondent’s lawyers
and ordered them to turn over the custody of private respondent to the Clerk of Court and Ex-Oficio Provincial Sheriff
of the RTC of Antique, Atty. Deogracias del Rosario, directing the latter to hold and detain private respondent in his
residence at San Jose, Antique and not to allow him liberty to roam around but to hold him as a detention prisoner
thereat.

Meanwhile, on 21 June 1989, Atty. J.T. Barrera filed a motion for admission to bail on behalf of private Respondent. 22
On 4 July 1989, Senior State Prosecutor Aurelio Trampe filed his opposition 23 thereto, alleging that private
respondent was charged with the crime of murder, frustrated murder and attempted murders and that the evidence of
guilt is strong; hence, he is not entitled to bail as a matter of right.

On 26 June 1989, private respondent was arraigned, and thereafter, private respondent’s petition for bail was set for
hearing on 7, 11 and 28 August 1989 to 1 September 1989, as agreed upon by the prosecution and the defense. 24

On 7 August 1989, Senior State Prosecutor Aurelio C. Trampe filed a motion 25 dated 3 August 1989 to discharge
accused Oscar Tianzon to be utilized as a state witness, alleging that there is an absolute necessity for his testimony
against all the accused; that there is no other direct evidence available for the proper prosecution of the offenses
except the testimony of said accused, which can be substantially corroborated in its material points by other evidence;
that the accused Tianzon does not appear to be the most guilty among the accused, as he acted merely as a lookout
and did not actually participate in the assassination of the deceased Evelio Javier, and that he has not been previously
convicted of any offense involving moral turpitude. The hearing of the motion was set on 9 August 1989 at 2:00 o’clock
in the afternoon.chanrobles virtual lawlibrary

The scheduled hearing on the aforesaid motion of the prosecution was, however, cancelled and the hearing thereof
was reset to 23 August 1989.

At the hearing on 23 August 1989, the prosecution adduced its evidence in support of the motion; however,
respondent Judge deferred the resolution of the motion. Thereupon, the prosecution moved that the presentation of its
evidence in opposition to private respondent’s petition for bail, which was set for hearing on 28 August 1989 and 1
September 1989, be likewise deferred on the ground that accused Oscar Tianzon is a material witness against private
respondent and that his testimony is necessary for the purpose of determining private respondent’s qualification for
bail, i.e., whether the evidence of guilt is strong.

On 28 August 1989, petitioner filed the instant petition for CERTIORARI, to annul and set aside the orders dated 3, 7
and 8 August 1989, claiming that said orders were issued with grave abuse of discretion and PROHIBITION to enjoin
the respondent Judge from hearing private respondent’s petition for bail until he has resolved the motion to discharge
accused Oscar Tianzon, and praying that a writ of preliminary injunction and/or temporary restraining order be issued.

As prayed for, the Court issued on 31 August 1989 a temporary restraining order, 26 ordering the respondent Judge to
cease and desist from continuing the hearing on respondent-accused Avelino Javellana’s petition for bail until after the
respondent Judge has resolved the motion to discharge Oscar Tianzon as state witness.

When private respondent’s petition for bail was heard on 28 August 1989, respondent Judge was apprised of the filing
of the petition before this Court; hence, the hearing was reset to 1 September 1989.

At the afternoon hearing on 1 September 1989, the prosecution furnished respondent Judge and the defense, copies
of the restraining order issued by this Court. The respondent Judge, however, advised the parties that the motion to
discharge accused Oscar Tianzon has already been resolved in the morning and that copies of the resolution would
be available at any time then. 27 Thereafter, respondent Judge released the resolution, 28 dated 1 September 1989,
denying the prosecution’s motion to discharge accused Oscar Tianzon to be utilized as a state witness. He ruled,
among others, as follows:chanrobles.com : virtual law library

"The court searched the records for evidence to corroborate the material points in the aforesaid testimony of Tianzon
against Javellana but found none to corroborate his statement pointing to Javellana as the gun supplier and the
plotter. Neither has the prosecution presented evidence during the hearing to determine Tianzon’s qualification tending
to corroborate the implication of Javellana nor did the prosecution indicate to the court where such corroboration can
be found by the court.

"On the contrary, the court notes a clash of the statements of Tianzon in the question and answer No. 45 of his
affidavit with the testimonies of the previous witnesses for the prosecution because question and answer No. 45
specifies the names of the passengers of the two (2) Nissan jeeps but the same does not mention either accused
John Paloy or Vicente Vegafria as one of the passengers of the same jeeps while the testimonies of previous
witnesses for the prosecution proclaim that they (Paloy and Vegafria) were among the passengers of the such jeeps
who alighted therefrom at the Plaza where the late Governor Evelio Javier was killed.

"Not only that. The court finds no absolute necessity to date of Tianzon’s testimony because the court earlier on May
11, 1989 discharged accused Romeo Nagales on motion of the Prosecutor to be utilized as a state witness. But,
instead of utilizing Nagales as a state witness, as promised by the Prosecutor, the prosecution did not present him up
to this writing but proceeded to formally offer its evidence and thereafter rested its case.

"What is more, when the prosecution asked for the discharge of state witness Nagales, it assured the court
that:jgc:chanrobles.com.ph

"That in the instant cases, there is an absolute necessity for the testimonies of accused Jose Delumen and Romeo
Nagales as against accused Arturo Pacificador, Rodolfo Pacificador, Avelino Javellana, Eduardo Iran, Ramon
Hortillano, Henry Salaver, Arlene Limoso, Rolando Bernardino, Oscar Tianzon, Eleazar Edemne alias "Nono", Alias
Akong and Alias Tatang, Alias Dolfo, as shown in their sworn statements, copies hereto attached as Annexes ‘A’ and
‘B’ and form part hereof;

‘That there is no other direct evidence available for the proper prosecution of the offenses committed by the accused
named in the next preceding paragraph except the testimonies of said Delumen and Nagales which can be
substantially corroborated in its material points by other evidence.’

"But neither did the prosecutor use state witness Nagales against accused Rolando Bernardino nor did the
prosecution use his testimony against Jose Delumen and Jesus Garcia. Consequently, there being no evidence
against accused Delumen and Garcia, on motion of their respective counsel, the cases against these two (2) accused
were dismissed.

"These situation disturbs, let alone alarms, the court in the conduct of the prosecution in these cases. The failure of
the prosecution to adduce any evidence against Delumen and Garcia appears to lend credence to the charge of
accused Javellana that the prosecution in these cases has adopted a ‘scandalous dual theory of the
prosecution’."cralaw virtua1aw library

Upon receipt of the resolution, the prosecution through Senior State Prosecutor Aurelio C. Trampe, immediately filed a
motion to inhibit 29 the respondent Judge, dated 24 August 1989, on the ground of manifest partiality to private
respondent, and set it for hearing on 16 October 1989. Thereupon, the prosecution moved to defer the presentation of
its evidence in opposition to private respondent’s petition for bail. Despite the opposition of the prosecution, the
respondent Judge reset the hearing on 14, 15 September 1989 to 4, 5 and 6 October 1989.chanrobles.com : virtual
law library

Afterwards, the prosecution filed a motion for reconsideration 30 of the order of 1 September 1989 which denied the
prosecution’s motion to discharge accused Oscar Tianzon.

On 4 September 1989, the Senior State Prosecutor also filed a motion 31 to reset the hearings on 14, 15 September
1989 and 4, 5, 6 October 1989 on the petition for bail, on the grounds that the motion to inhibit should first be resolved
and also because of the pendency of the motion for reconsideration of the order of 1 September 1989.

At the hearing on 14 September 1989, only Assistant Provincial Prosecutor John Turalba appeared for the
prosecution. He manifested that he was appearing only to reiterate the Senior State Prosecutor’s motion for deferment
of the scheduled hearings on private respondent’s petition for bail. Private respondent opposed the motion. The
respondent Judge denied the motion, and directed the prosecution to present its evidence in opposition to the private
respondent’s petition for bail. The Assistant Provincial Prosecutor moved for reconsideration, claiming that his position
is subservient to that of the Senior State Prosecutor who is the duly designated principal prosecutor and as a matter of
conviction, he cannot proceed with the trial as well as with the subsequent trials which were covered by the motion of
4 September 1989, and that, moreover, to proceed would render moot and academic the petition for certiorari before
this Court. Respondent Judge denied the motion for reconsideration, and, again, directed the prosecution to present
its evidence. At this juncture, the Assistant Provincial Prosecutor manifested that he was not participating in the
proceedings and begged to be allowed to leave the courtroom, which the respondent Judge refused.

Nevertheless, Assistant Provincial Prosecutor John Turalba walked out and, while walking towards the door,
respondent Judge ordered the Sheriff to arrest him. Thereafter, respondent Judge issued an order finding Assistant
Provincial Prosecutor John Turalba in contempt of court; declaring the prosecution to have waived its right to present
evidence in opposition to private respondent’s petition for bail; and considering the said petition for bail submitted for
resolution. 32 The respondent Judge imposed upon the Assistant Provincial Prosecutor the penalty of ten (10) days
imprisonment. 33

Hence, the petitioner filed with this Court a Supplemental Petition to annul and set aside the orders of 1 September
1989 as well as the order of 14 September 1989; and to inhibit respondent Judge from further taking cognizance of
Criminal Cases Nos. 3350 to 3355; and praying that a writ of preliminary mandatory injunction be issued directing
respondent Judge to promptly order the release of Assistant Provincial Prosecutor John Turalba from custody on the
cognizance of the Provincial Prosecutor.

As prayed for, the Court issued on 22 September 1989 a writ of preliminary mandatory injunction. 34 However, when
the respondent Judge received it on 26 September 1989, Assistant Provincial Prosecutor John Turalba had already
been released on 25 September 1989 having served his sentence.

Petitioner contends that the respondent Judge committed a grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the following orders, to wit:chanrob1es virtual 1aw library

(a) the order of 3 August 1989, placing custody of private respondent with the Antique Provincial Probation Officer;

(b) the order of 7 August 1989, transferring the custody of private respondent to his own lawyers;

(c) the Order of 8 August 1989, entrusting the custody of private respondent with the Clerk of Court and ex-oficio
Provincial Sheriff, Deogracias del Rosario; and

(d) the Order of 1 September 1989, which denied the prosecution’s motion to discharge Oscar Tianzon to be utilized
as a state witness.

Petitioner further contends that respondent Judge committed a grave abuse of discretion amounting to lack or excess
of jurisdiction when he insisted on continuously hearing private respondent’s petition for bail and in ordering the arrest
and commitment of Assistant Provincial Prosecutor John Turalba in the Provincial Jail.chanrobles.com : virtual law
library

It has been repeatedly held that there is grave abuse of discretion justifying the issuance of a writ of certiorari where
there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; where the power is
exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law. 35

In claiming that respondent Judge committed grave abuse of discretion in issuing the orders of 3 August 1989, 7
August 1989 and 8 August 1989, petitioner argues that there was no compelling reason for the respondent Judge to
order, with undue haste, the medical "check up" of private respondent at the Iloilo Mission Center notwithstanding the
absence of any police escort or other law enforcer to ensure that private respondent would not take flight as he had
previously done; that while all the other accused were confined in the Provincial Jail of Antique, the respondent Judge
merely "entrusted" the custody of private respondent to his lawyers, and then to the Clerk of Court of the RTC of
Antique, who is the son of one of private respondent’s lawyers; and that respondent Judge has not advanced a valid
and legal rationale for the "accommodations" afforded private respondent who, in law, occupies no better position and
no preferential rights over those of his co-accused.

The respondent Judge, however, has, to our mind, sufficiently explained in the order of 7 August 1989 the reasons
behind the issuance of the aforesaid orders. He said:jgc:chanrobles.com.ph

"The Court is aware of certain reasons why accused Javellana should not be placed in the Provincial Jail. This was
the subject of a discussion in open court before the Presiding Judge of this court between the lawyers of Javellana
and Javellana, himself and Asst. Provincial Prosecutor John I-C. Turalba who, after hearing the particular reason given
by Javellana withdrew his opposition to the placing of Javellana other than in the Provincial Jail of Antique and
acceded that custody of Javellana be placed at the hands of the Provincial Commander of Antique.

"Recently, particularly on August 2, 1989 as well as on August 3, 1989, the court had difficulty in securing the safety of
accused Javellana. The court was left with no other choice but to entrust his custody to the Provincial Probation
Officer to escort him to Iloilo City for a medical check-up. It is the perception of the court that there are movements
going ground, by whom is unknown yet to the court, to compel the incarceration of accused Javellana in the Provincial
Jail. The court abhors this situation and the court will not be intimidated by anyone. It is the perception of this court
that even its lawful orders have somehow been subverted. The court’s perception of the circumstances presently
obtaining on the custody and place of detention of Javellana is a hot agenda and of grave importance, particularly his
safety and well being during detention in order that the court can try him on the charges against him.

"After serious deliberation, it is the considered view of the court that his detention be placed somewhere else. The
court hereby appoints Attys. Del Rosario, Barrera and Alinio as deputies of the court and as such to take custody of
accused Javellana meantime that the motion to fix bail is going on and for them to bring the accused to court
whenever his presence is needed.

"As earlier noted, the court perceives a movement to compel detention of the accused in the Provincial Jail of Antique.
This disturbs the court. This even lends credence to the information by Javellana that there is indeed danger to his life
if he is placed in the Provincial Jail of Antique. This perception of the court is premised on what appears to be a
subversion of the order of the court placing custody of accused Javellana with the Provincial Commander of Antique.
The court, however, allowed, on motion of the Provincial Commander, that Javellana be transferred to the Binirayan
Rehabilitation Center. But, on motion of Javellana for reasons of health, as the same center is too far away and no
adequate (sic) transport facilities at certain time of the day and might are available to convey accused should an
emergency occur, Accused was ordered confined at the Angel Salazar Memorial Hospital in San Jose, Antique for
check-up. Because of the incomplete results of the examination, order was issued for his complete check-up in a
hospital in Iloilo. The court ordered the Station Commander of San Jose, Antique to provide police escorts and security
to prevent escape of accused in conducting check-up. Before the accused and his escorts could depart, on August 3,
1989 for Iloilo City, the INP Station Commander of San Jose begged the Presiding Judge of this Court to allow him to
recall the security personnel he has assigned and ordered to conduct accused Javellana to Iloilo City. It left the court
with no choice and no enforcers. The court, however, had to be assured on the physical condition of accused
Javellana that he will be able to face trial against him. Accordingly, the court ordered the Provincial Probation Officer,
to whom the custody of accused Javellana was entrusted, to escort the latter to Iloilo City for the medical check-up.
The Probation Officer earlier this morning manifested that there was opportunity for accused Javellana to escape but
despite such opportunity he came back to court today to face the trial against him. This, to the mind of the court is to
be considered in his favor.

"The aforesaid movements directed to compel the court to place Javellana in the Provincial Jail, is (sic) to the mind of
the court, as (sic) indication that should (sic) be place there, something may happen to him and this court will not allow
that thing to happen. And as it is the considered view of the court that justice maybe better served to deputize, as the
lawyers of accused Javellana have been deputized, as deputies of the court. As such they are now drawn from the
status of private individuals but are now the deputies of the court. In the matter of facilities, Accused Javellana is to be
confined at the San Jose residence of Atty. Deogracias Del Rosario, the son of Atty. Amelia del Rosario who happens
to be the Clerk of Court of the Regional Trial Court of Antique.

"There may be truth to the Prosecutor’s contention that there will be nothing to prevent the other accused from
following suit in asking that their custody likewise (sic) be transferred to their respective lawyers.

"But, such is only to request. The grant or denial thereof is a matter altogether different.

"In the present incident it is the findings (sic) of the court that indeed the life of Javellana will be imperilled if confined
elsewhere other than the place above directed."cralaw virtua1aw library

Considering the foregoing, the Court finds and so holds that respondent Judge did not commit grave abuse of
discretion, i.e., that he did not act "arbitrarily", "capriciously" or "despotically" amounting to lack or excess of
jurisdiction in issuing the questioned orders of 3, 7 and 8 August 1989.

Coming now to the 1 September 1989 order of respondent Judge, denying the prosecution’s motion to discharge
accused Oscar Tianzon, the Court reiterates the rule that, for a writ of certiorari to issue, it must not only be shown that
the board, tribunal or officer acted without jurisdiction, or with grave abuse of discretion, but also that there is no
appeal or other plain, speedy and adequate remedy in the ordinary course of law. 36 Thus, before filing a petition
for certiorari in a higher court, the attention of the lower court should generally be first called to its supposed error and
its correction should be sought. The reason for the rule is that issues which the lower courts are bound to decide
should not summarily be taken from them and submitted to an appellate court without first giving such lower courts the
opportunity to dispose of the same with due deliberation. 37 In other words, all available remedies in the lower court
must first be exhausted before filing a petition for certiorari in the higher courts.chanrobles virtual lawlibrary

In the case at bar, the petitioner had filed a motion for reconsideration of the order of 1 September 1989 which is still
pending resolution by respondent Judge. A petition for certiorari may not be granted where there is an appeal or other
adequate remedy, like a motion for reconsideration, which is still pending in the court below, 38 as in the present case.

The Court, however, holds that respondent Judge committed grave abuse of discretion amounting to lack or excess of
jurisdiction when he insisted in continuously hearing private respondent’s petition for bail and in ordering the arrest
and commitment of the Assistant Provincial Prosecutor.

It is well to recall that in the restraining order issued on 31 August 1989, this Court ordered the respondent Judge to
cease and desist from continuing the hearing on private respondent’s petition for bail until after he had resolved the
motion for discharge of Oscar Tianzon as state witness. Although the aforesaid motion had already been denied in the
order of 1 September 1989, nevertheless, the prosecution had filed a motion to reconsider the said order which is still
pending resolution. Hence, the said motion has not yet been resolved with finality. When respondent Judge, therefore,
denied the prosecution’s motion for deferment of the scheduled hearings on private respondent’s petition for bail and
in proceeding to hear the said motion, by ordering the prosecution to present its evidence — which precipitated the
walk-out of the Assistant Provincial Prosecutor and his consequent arrest and commitment to the Provincial Jail — he
(respondent judge) was acting in violation of the restraining order issued by this Court. Had the respondent Judge
granted the prosecution’s motion for deferment, or at least, cancelled the hearings on 14 and 15 September 1989, and
instead, resolved the prosecution’s motion for reconsideration of the order of 1 September 1989, this unfortunate
incident could have been avoided.

Although the matter of adjournment and postponement of trials is within the sound discretion of the court, such
discretion should always be predicated on the consideration that more than the mere convenience of the courts or of
the parties in the case, the ends of justice and fairness should be served thereby. 39 After all, postponements and
continuances are part and parcel of our procedural system of dispensing justice. 40

Besides, contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence, a defiance of the
court. 41 And, while courts are inherently empowered to punish for contempt to the end that they may enforce their
authority, preserve their integrity, maintain their dignity, and insure the effectiveness of the administration of justice, 42
nevertheless, such power should be exercised on the preservative and not on the vindictive principle, for the power to
punish for contempt, being drastic and extraordinary in its nature, should not be resorted to unless necessary in the
interest of justice. 43

A perusal of the transcript of the hearing held on 14 September 1989 shows that Assistant Provincial Prosecutor John
Turalba had not made any statement that could be considered as "contumacious" or an affront to the dignity of the
court. And, while the act of Assistant Provincial Prosecutor Turalba of "walking out" does not meet our approval — as
he should have stayed after the respondent Judge had denied his motion for permission to leave the courtroom — yet,
the respondent Judge, in ordering the incarceration of Assistant Provincial Prosecutor Turalba, acted beyond the
permissible limits of his power to punish for contempt.cralawnad

And now to the question on whether or not respondent Judge should be disqualified from further hearing Crime.
Cases Nos. 3350-3355, Section 1, Rule 137 of the Rules of Court provides:jgc:chanrobles.com.ph

"Section 1. Disqualification of judges. — No judge or judicial officer shall sit in any case in which he, or his wife or
child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the
sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the
civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in
any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in
interest, signed by them and entered upon the records.

"A judge, may in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons
other than those mentioned above."cralaw virtua1aw library

In the case at bar, the reason relied upon for the inhibition or disqualification of respondent Judge, i.e. manifest
partiality to private respondent, is not based on any of the grounds enumerated in the first paragraph of Section 1,
Rule 137 which per se disqualifies a judge from sitting in a case, but on the second paragraph thereof. The settled rule
is that the judge is left to decide for himself whether he will desist, for just or valid reasons, from sitting in a case.
Respondent Judge has not as yet decided whether or not he will inhibit himself from further hearing Criminal Cases
Nos. 3350-3355 in the face of the prosecution’s motion to disqualify or inhibit him. It would be premature for the Court
at this stage to rule on the matter.

WHEREFORE, the petition for certiorari is GRANTED insofar as the order of 14 September 1989 is concerned, and
the said order is hereby ANNULLED and SET ASIDE. Without costs.

SO ORDERED.

Melencio-Herrera (Chairman), Paras and Regalado, JJ., concur.

Sarmiento, J., is on leave.

You might also like